Cottrell & Cottrell
[2022] FedCFamC2F 704
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cottrell & Cottrell [2022] FedCFamC2F 704
File number(s): MLC 13903 of 2021 Judgment of: JUDGE BROWN Date of judgment: 2 June 2022 Catchwords: FAMILY LAW – Interim hearing – application for sole occupancy of jointly owned property pending final hearing –applicant wife is now deceased – respondent is said to be homeless – whether the estate is entitled to occupy the property – needs of both parties – matters to be considered Legislation: Family Law Act 1975 (Cth) at Part VIII, ss 4, 39, 75(2) 79(1), 79(2), 79(4), 79(8), 75(2) , 114(1),
Transfer of Land Act 1958 (Vic)
Cases cited: Bassett v Bassett (1975) 1 AER 513
Bevan & Bevan [2013] FamCAFC 116
Cornell v Stokes (2008) 219 FLR 121
Davis v Davis (1976) FLC 90-062
Fisher v Fisher (1986) 161 CLR 438
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Mallett v Mallett (1984) 156 CLR 605
O’Dea & O’Dea (1980) FLC 90-896
Pierce & Pierce (1999) FLC 92-844
Price (unreported) 12 July 1982
S & S (2002) FamCA 59
Sieling v Sieling (1979) FLC 90-627
Stanford v Stanford [2012] HCA 52.
Wright v Gibbons (1949) 78 CLR 313
Division: Division 2 Family Law Number of paragraphs: 102 Date of hearing: 25 May 2022 Place: Adelaide Counsel for the Applicant: Mr Hannan Solicitor for the Applicant: Ballarat Lawyers Counsel for the Respondent: Mr Byrne Solicitor for the Respondent: BJT Legal ORDERS
MLC 13903 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COTTRELL
Applicant
AND: MR COTTRELL
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.Paragraph three (3) of orders made 2 March 2022 is hereby discharged.
2.Paragraph three (3) of orders made 4 May 2022 is hereby discharged.
3.Within fourteen days of the date of these orders, the estate for applicant make all necessary arrangements to remove the belongings of the late Ms Cottrell from B Street, Town C (“the property”).
4.Pending final hearing of the matter and at the conclusion of fourteen days of the date of these orders, the respondent husband, Mr Cottrell do have sole use and occupation of the said property.
5.During the period that the husband occupies the said property, he be responsible for the payment of all outgoings in relation to the property, including but not limited:
(a)All associated insurances;
(b)Utilities; and
(c)Rates.
6.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar of the Federal Circuit and Family Court of Australia at 9.00am on 19 July 2022 (SA time, ACST).
7.The Conciliation Conference is to be conducted electronically, by Microsoft Teams.
8.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant must pay the Conciliation Conference fee no less than 14 days prior to the Conference and the Respondent do reimburse the Applicant with one half of such fee within 7 days of being provided with evidence of payment of same.
9.No later than 4.00 pm on 12 July 2022, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court (by email to casemanager: …@fcfcoa.gov.au) and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution)
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders;
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)particulars of any financial resource;
(vi)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)statements for, and where applicable, valuations of any superannuation interest;
(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
10.The Application in a Proceeding filed by the respondent on 29 April 2022 is hereby dismissed.
11.Further consideration of the matter is adjourned to 9:30am on 11 August 2022 (SA time, ACST). for directions via MS Teams NOTING the parties will be forwarded a link for the hearing by the close of business on the day prior or can dial in on (02) 9161 1229 and use passcode 574 862 731#
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 Cottrell & Cottrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The late Ms Cottrell (“the wife”), who was born in 1952 and Mr Cottrell (“the husband”), who was born in 1960 married in 1998. They have no children together and were divorced on 23 March 2022. The wife had two children from an earlier relationship. They are Ms D and Ms E.
On 14 December 2021, the wife commenced proceedings, in this court, seeking a division of matrimonial property, pursuant to the provisions contained in Part VIII of the Family Law Act 1975 (Cth)[1]. In broad terms, she sought a division of marital assets 70/30% in her favour.
[1] Hereinafter referred to as “the Act”.
The husband in his response, filed on 19 January 2022, proposed that the parties’ most significant asset – their former matrimonial home – be sold and, after payment of expenses, the proceeds be divided 70/30% in his favour.
At the time of her application, the wife sought an urgent hearing of her application on the basis that she was terminally ill. She was suffering from cancer and had been unwell for many years, initially suffering a medical condition. Sadly, after entering hospital in 2022, she died in 2022. In her last will, executed on in 2021, the wife appointed her granddaughter, Ms F (“Ms F”) as her sole executrix and trustee.[2]
[2] See annexure -1 of affidavit of Ms F filed 27 April 2022.
The central controversy, currently requiring the adjudication of the court, involves determining whether the estate or the husband should have control of the residential property occupied by the wife prior to her death, which had previously been the former matrimonial home of the husband and wife, pending the outcome of their competing claims for settlement of property.
It is common ground that Mr Cottrell has not physically lived in the property for a significant period of time. However, in this context, the parties fundamentally disagree about the date on which they finally separated. In her divorce application, the wife indicates the date of final separation as being 1 May 2016.[3]
[3] See divorce application filed 14 December 2021.
For his part, the husband asserts that the relevant date is June of 2021, which was the date on which he ceased to claim a carer’s payment in respect of the wife and began to receive a single rate pension.[4]
[4] See affidavit of Mr Cottrell filed 19 January 2022 at [17].
It is his case that he was forced to leave the home in late 2018 because of the wife’s unstable emotional state, but he continued to care for her, with the approval of her doctor and attended the home regularly to provide such care, as well as to undertake maintenance on the property.
On the other hand, Ms F’s position is that Mr Cottrell claimed the carer’s allowance on false pretences and he was not involved in providing any level of care for the wife, whilst she was infirm, such care being provided by her and her husband. Necessarily, this issue has ramifications in respect of issues of contribution. It is also reflective, I consider, of the tensions and mistrust between the parties, which is palpable.
In the jargon of family law solicitors, this is a sole occupancy case. Such cases are almost invariably concerned with issues arising between spouses who, after relationship breakdown, each seek to live in their formally shared home. In circumstances in which their joint use of the relevant property is not possible for all manner of practical and emotional reasons. Often issues relating to the care of children are also engaged.
Clearly, that is not the situation in the current matter, which, for obvious reasons must be regarded as highly idiosyncratic. However, for all manner of reasons, it remains a particularly emotionally fraught case, made more poignant by the recent death of the wife and the conflict between the two sides of the family. The proceedings in question have been vigorously contested, which is indicative of the parties’ deep and abiding mistrust for one another.
In general terms, it is the husband’s position that as he has a legal interest in the home concerned and as he is currently homeless, it is only right and proper that he should live in the house which he owns, pending the resolution of the proceedings between the parties. Ultimately, as I understand his case, as currently expressed, he wishes to retain the home.
On the other hand, whilst Ms F concedes that she is not currently living in the relevant property. Ms F asserts that she and her immediate family have an intimate relationship with the property and have long maintained it, without any assistance whatsoever from the husband, whom they believe is dishonest and manipulative.
It is also her case that her late grandmother expressed a desire that the property remain with her immediate family. As such, she wishes for the estate to retain the property and acquire the husband’s interest in it.
Given these circumstances, it is also her position that it would not be proper for the court to make the order currently sought by the husband. As she asserts that the husband’s conduct towards the wife should disqualify him from being entitled to the benefit of an equitably based order from the court.
The issue arises for adjudication at an interim stage, at a point of acute crisis for all concerned. As such, it is not possible for the court to adjudicate the issue in the context of a full hearing involving the canvassing of all the evidence likely to be available at final hearing, particularly through any process of cross examination. Rather the case has proceeded in a truncated form, which precludes the court from making findings of fact in respect of disputed issues.
This case has many such disputed issues. The most significant of which centre on whether Mr Cottrell does or does not have viable alternative accommodation available to him, other than the former family home and issues relating to contribution, particularly in the context of the date when the parties actually separated.
BACKGROUND
The wife’s will is expressed as being made in contemplation of her being divorced from the husband. In this context, she expressed a testamentary intention that he was not to benefit, in any way, from her estate, which was too be gifted to her two grandchildren, Ms F and Ms G – 55% the former; 45% to the latter.
The husband responded to the wife’s property application on 19 January 2022. In his affidavit in support, he acknowledged the significance of Ms F and Ms G in the following terms:
We were married in 1998. There are no children of the relationship, although Ms Cottrell does have two children from a prior relationship, and in around 2004, we started looking after her two grandchildren Ms F and Ms G. In around 2010, Ms Cottrell formally adopted her grandchildren.[5]
[5] See Affidavit of Mr Cottrell filed 19 January 2022 at [9].
Significantly, the wife’s will also expressly precluded her estate making any provision for her two adult daughters, Ms D and Ms E. However, Ms F has deposed that Ms D has been living at the property concerned until recently and is, as a result, now effectively either homeless or facing such a prospect.[6]
[6] See Affidavit of Ms F filed 24 May 2022 at [8].
On 4 May 2022, an order was made substituting Ms F as a party to the proceedings, in place of the late wife, given her status as the wife’s executrix. This order was made with the consent of all concerned.
At an earlier stage of proceedings, the parties were referred to a conciliation conference, which unfortunately was unable to assist in the resolution of the case. At that stage, it became apparent that the extent and composition of the marital asset pool was relatively uncontroversial.
The major assets consist of real property, which can be delineated as follows:
·B Street, Town C.[7] This consists of 21 acres and is the site of the home. It is registered in the names of the husband and wife as tenants in common in equal shares. The parties’ interests were registered in 1996. It is convenient to refer to it as “the house”. It has been recently valued at $620,000.00.
·H Street, Town C, which is the adjoining property.[8] This consists of 70 acres and is registered in the names of the parties as joint proprietors. It is convenient to refer to it as “the land”. It has been recently valued at $400,000.00. The parties’ interests in the property were registered in 2001. It is subject to a charge in favour of the Legal Aid Commission of Victoria, in an amount of $3,974.00, which arises as a consequence of legal services provided to the wife in respect of proceedings relating to the care of Ms F and Ms G.
[7] Volume … Folio … Lots 1 & 2 on TP ….
[8] Volume … Folio … Lots 1,2,3,4 & 5 on TP ….
The husband and wife disagree about when they began to cohabit. The wife asserts 1998; the husband asserts 1994. They agree the wife owned a property at Suburb J, when their relationship began. The husband asserts he was employed as a transport worker for the early years of the relationship and contributed his wages to jointly fund the acquisition of properties, as well as providing other indirect contribution to improve properties through maintenance and repairs. It is also his case that as the wife was in receipt of benefits, he supported her and provided a significant component of the necessary homemaking duties as well as parenting Ms F and Ms G.
It is agreed that the Suburb J property was sold in 1998 for a sum in the vicinity of $175,000.00. In this context, a controversy arises – the wife asserting the sum was used to fund the purchase of the house; the husband asserting that its sale post-dated the purchase. The husband asserting that he did maintenance at the property prior to its sale.
Other controversies arise in respect of other significant financial contributions said to be attributable to the wife, which occurred in 1998 and which the wife asserts were utilised to purchase both the house and the land. The chief of these being an inheritance of $100,000.00 received from her father. Accordingly, it is the case of the estate that the wife has made significant early direct financial contributions, at the outset of the parties’ relationship, which require special recognition in respect of how the current assert pool is apportioned.[9]
[9] Pierce & Pierce (1999) FLC 92-844 at page 85,811
The husband asserts that much of the money was utilised to purchase a property in K Street, Town C, in which the wife’s children lived rent free. The property was subject to a mortgage, which he paid. He asserts that the wife retained all the proceeds of sale of this property, when it was sold in 2007 for $91,000.00. The wife asserts that the sum received was $105,000.00.
The husband also disputes assertions made by the late wife that she received another inheritance from her mother in 2010 and a payout for a medical negligence claim. The wife asserting that these were significant direct financial contributions that went towards the preservation of both the house and the adjoining land and are attributable solely to her.
It is Mr Cottrell’s case that the land was purchased in 2001 for $70,000.00, partly from the $100,000.00 inheritance. Again he asserts that he maintained the property and serviced the windmill on it. There is a dispute as to when the husband stopped working. It is agreed that the wife became eligible for a disability pension in 2003 and at which stage the husband became her carer.
As previously indicated Ms F (and the wife herself) dispute that the husband provided any of the care implicit in him being entitled to receive the carer’s allowance and this was to the long term detriment of the wife, particularly when she was diagnosed with cancer and the husband had left the former family home.
It is the wife’s assertion that she maintained the home and attended to fences and livestock. The husband does not agree. The wife further asserts that she maintained the home financially and did all of the housework with little assistance from the husband. It is also her case that she essentially parented Ms F and Ms G, with no help from the husband. Again, the husband disagrees.
Accordingly, the marital relationship between the parties was of significant length. However, there is significant controversy about when the marriage ended and what were the surrounding circumstances. Clearly, the wife must be accounted as having brought a significant amount of capital into the relationship, in the form of the Suburb J property and thereafter injected other capital sums.
In this context, as is frequently the case, the spouses concerned have radically different views as to the weight to be given to other indirect contributions. At this stage, it is not possible for the court to resolve issues arising in respect of the parties’ respective contributions, particularly to the major asset, which is the combined property at Town C, which was until recently the late wife’s home.
However, this is the context in which the sole occupancy application must be determined. What is clear is that the unfortunate demise of the wife has reconfigured how the court will be able to approach issues germane to the prospective needs of the parties concerned. This is a significant aspect of the husband’s case. He points to the fact that he is in receipt of social security; on his case, has no secure accommodation; and is aged in his early sixties.
Accordingly, it is the husband’s case is that he has significant prospective needs. He has deposed that he receive a carer’s pension in respect of another person, with whom he asserts he does not live with. Ms F does not accept this assertion. He has further deposed that he is exploring the possibility of doing some garden maintenance jobs to augment his social security entitlements.
No evidence has been provided as to why it was decided to hold the two properties, which seem to have been acquired at different times, in distinct legal forms. This distinction would have had significant implications for the manner in which the land concerned was to be disposed, on the death of either of the parties concerned, if the relationship between them had remained intact.
Pursuant to the provisions of the Transfer of Land Act 1958 (Vic) on the death of the wife, the husband is entitled to be registered as the surviving joint proprietor of the land. In Wright v Gibbons Latham CJ summarised the effect of a joint tenancy in the following terms:
The interests of each joint tenant in the land held are always the same in respect of possession, interest, title and time. No distinction can be drawn between the interest of any one tenant and that of any other tenant. If one joint tenant dies his interest is extinguished. He falls out, and the interest of the surviving joint tenant or joint tenants is correspondingly enlarged.[10]
In the same case, Dixon J (as his Honour then was) held that
[I]n contemplation of law joint tenants are jointly seised for the whole estate they take in land and no one of them has a distinct or separate title, interest or possession.[11]
[10] Wright v Gibbons (1949) 78 CLR 313, 323.
[11] Wright v Gibbons (1949) 78 CLR 313, 329.
RELEVANT LEGAL PROVISIONS
Pursuant to section 39 of the Act, this court has jurisdiction conferred upon it in respect of what are termed matrimonial causes. This expression is defined by section 4(1)(ca), to include proceedings in respect to the property of the parties to a marriage…arising out of their marital relationship.
Property is exhaustively defined by section 4 as property to which either spouse is entitled, whether in possession or reversion. The position of the parties, as expressed by each of their counsel, is that the late wife’s interest in the land is to be included in the pool of property, as it was subsisting at the date of her death, notwithstanding any issue of survivorship.
Part VIII of the Family Law Act 1975 (Cth) deals with financial matters relating to parties who are or have been married to one another.
The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of Part VIII of the Act. Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a marriage in relevant property.
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
The orthodox mechanics (it has been described by the Full Court as the preferred approach) applicable to the making of any order altering proprietary interests pursuant to the provisions of the Act can be described as follows:
·identification and valuation of the property of the parties;
·identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4)(a) to (c);
·identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
·considerations of justice and equity.[12]
[12] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60].
The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford.[13] In the case, the majority stated that:
It will be recalled that s 79(2) provides that ‘[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[14]
[13] Stanford v Stanford [2012] HCA 52.
[14] Stanford v Stanford [2012] HCA 52, at [35] – [36].
Clearly, the applicability of the preferred approach is impacted by the recent death of the wife. In these circumstances, the provisions of section 79(8) of the Act come into play. The provision reads as follows:
(8) Where, before property settlement proceedings are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii) any of the property of the parties to the marriage or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
The implications of section 79(8) have been discussed, by the High Court, in a number of cases, including Stanford. Essentially, it is said the provision is designed to satisfy the moral obligations arising from a marriage, which the death of a spouse may have otherwise defeated.In Fisher v Fisher[15] Brennan J said:
The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”: s. 79(8)(b)(ii). That qualification on the power, coupled with par. (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied.
Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death.
Gibbs CJ (with whom Wilson J agreed) said:
It is true that s. 79(8) provides for the creation of new proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced while the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse; further we are concerned only with the case in which the proceedings arose out of the marital relationship. An order may be made under the subsection only if the Family Court is of the opinion that it would have made an order with respect to property if the deceased party had not died and that it is still appropriate to make an order with respect to property. We are not concerned to consider in what circumstances it would be appropriate to make an order that would benefit complete strangers, but clearly the discretionary power to make an order under s. 79(8)(b) should not be exercised lightly.[16]
[15] Fisher v Fisher (1986) 161 CLR 438 at 457-458.
[16] Fisher v Fisher (1986) 161 CLR 438 at 448.
What is clear from the obiter remarks of Gibbs CJ, Brennan and Wilson JJ is that the court is not to exercise its discretion to make a disposition, effectively in favour of a party who was not a party to the relevant marriage, lightly. In essence, careful consideration must be given to the overall appropriateness of such an intervention.
In Stanford, the High Court analysed the operation of section 79(8)(b) in the following terms:
Section 79(8)(b) thus requires a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of section 79(2) and its direction that the court not make an order unless "satisfied that, in all the circumstances, it is just and equitable" to do so. It follows that, in cases where section 79(8)(b) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.[17]
[17] Stanford v Stanford [2012] HCA 52, at [24].
Accordingly, the section envisages a two stepped process entailing firstly whether it would have made an order notwithstanding the death of a party. It seems that the answer, to this question in the present matter, is likely to be in the affirmative. Secondly, is it still appropriate to make the order, which is to be informed by considerations of what is just and equitable. In my view, this may be a more nuanced question.
Although the High Court indicated that it was not possible to provide any clear definition of what was a just and equitable exercise of the discretion arising under section 79. In an earlier decision, Mallett v Mallett,[18] such a discretion was described as being very wide, it remains a discretion to be exercised judicially and in accordance with fixed rules. In this context, the High Court provided three stipulations, which I will attempt to summarise as follows:
·Firstly, what is just and equitable must commence with an identification of what are the ordinary common law and equitable principles [and] the existing legal and equitable interests of the parties in the property pertaining to the relevant case;
·Secondly, although section 79 confers a broad power on a court exercising jurisdiction under the Act, to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion;
·Finally, whether making a property settlement order is just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in section 79(4).
[18] Mallett v Mallett (1984) 156 CLR 605.
Federal Magistrate Wilson, albeit prior to the High Court’s decision in Stanford, discussed the interaction between section 79(4) and section 79(8) in Cornell v Stokes.[19] After a review of the relevant authorities, he concluded that the following seven considerations were engaged in a case involving the death of a party, after the institution of family law property proceedings:
·The estate must demonstrate that the court would have made an order in favour of the deceased person as at the date of death. But, in so doing, the estate is not limited to evidence at the date of death;
·In order to satisfy the first prerequisite arising under section 79(8)(b)(i), it is not necessary for the court to determine what orders would have been made;
·In so doing the court must embark upon the exercise stipulated in section 79(4);
·The court must then determine whether it is appropriate to make an order;
·In this context, the court’s discretion should not be exercised lightly and should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied;
·The deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to matrimonial property;
·The size of the pool and the needs of the surviving spouse, including section 75(2) factors must be taken into account in formulating any orders.
[19] Cornell v Stokes (2008) 219 FLR 121.
In summary Wilson FM considered that once the first limb in section 79(8)(b) was satisfied it was not then simply a case of the court applying section 79(4) and section 75(2), as this would deprive the second limb of any utility. It was still necessary to consider the appropriateness of making any order in favour of effectively the beneficiaries of the deceased estate. Whether it was so appropriate was likely to turn on question on what moral obligations the surviving spouse had to meet. In practical terms, what this meant was that:
[W]hat the court really looks to is the contributions based entitlement of the deceased party, which the surviving party has a moral obligation to meet, and to then ask whether that entitlement should be adjusted for section 75(2) factors relating to the surviving spouse, or for any other reason.[20]
[20] Cornell v Stokes (2008) 219 FLR 121 at 128 [21].
It also seems to me, on the basis of Stanford, the court in determining the appropriateness of whether to make such an order must also consider the application of section 79(2) and whether it is just and equitable to make any order altering an existing proprietorial arrangement.
SPECIFIC CONTROVERSIES RELATING TO THE SOLE OCCUPANCY ISSUE
On 2 March 2022, following the failed conciliation conference, the parties consensually agreed to sell the land with the proceeds of sale, following the deduction of all expenses arising from the sale to be held in trust. At this stage, it was also ordered that the final hearing be expedited and it was fixed for hearing before her Honour Judge Jenkins on 6 May 2022.
Other orders made on 2 March 2022 authorised the husband to attend at the former matrimonial home to collect his motor vehicles and items in a shed provided he gave 72 hours’ notice to the wife and did not remain longer on the property than was necessary. He was also directed to return a motor vehicle to the wife.
Due to the indisposition of Judge Jenkins, as a result of exposure to Covid-19, the case came to me. In the period between the conciliation conference and the date of hearing, on 29 March 2022, the wife’s then power of attorney – I presume Ms F – applied for an interim intervention order, against the husband, which prevented him from attending at any place where the person protected by the order – the late wife – lived.
I have not been provided with a copy of the intervention order. In addition, I am unaware as to whether the wife was actually living in the home or had been admitted to hospital. More significantly, I have not been advised what evidence was provided in support of the application and by whom.
It is the husband’s position that he was not served with the application and the relevant order was made on an ex parte basis. He raised the possibility of him returning to live at the former matrimonial home on 22 April 2022, in a letter to the wife’s solicitor, which was a week after her death. He received no reply. I can understand why Ms F and those advising her would consider the letter insensitive.
In an application filed on 27 April 2022, the husband seeks the sole occupancy of both the land and the house. In support of his application he deposed that he was living in a 27 foot long bus, which was in poor condition and leaked. He was forced to park the bus in public places, which had drawn the attention of the authorities, as being unacceptable.
He claimed that most of his possessions remained at the former matrimonial home. Essentially, Mr Cottrell’s position is that his current living circumstances are unsafe and unsuitable to him in the short to medium term and it is untenable that he continue to live in his bus, whilst he owns a property, which he believes is vacant. In this context, he asserted that Ms F lived in City L; whilst, Ms G lived in Queensland; as did Ms D and Ms E.
Given the death of the wife, the expedited final hearing became otiose and the focus fell on the sole occupancy issue. Ms F was not in a position to respond to the application formally nor prepared to concede the point. I urged the parties to consider how the delicate issue could be handled respectfully and calmly, particularly so that the late wife’s personal possessions could be dealt with as appropriate and there was no unseemly dispute, in this regard, between them.
At the time I was told the property was vacant and, in these circumstances, in order to circumvent self-help, I directed that neither party was to move into the property or authorise any person associated with them to do so. Ms F was granted 14 days to formally respond and the issue was fixed for hearing before myself on 25 May 2022. These reasons relate to that hearing.
On a final basis, Ms F proposes the estate retain the house and the husband retain the proceeds of sale of the land. Pending final hearing, if the land is sold beforehand, she is open to the husband receiving a partial property settlement in the sum of $100,000.00, which in her submission should alleviate the any accommodation problems of the husband, which she does not concede exists. In his amended response, filed 27 April 2022, the husband has sought to be excused from particularising the final orders which he seeks, pending the outcome of the sole occupancy issue.
Essentially, Ms F contends that the husband lives with the person, for whom he claims a carer’s allowance, who has a home in Town M, where the originating application was personally served. Alternatively, she asserts he lives with his parents in Town N, which is the address noted on his recent affidavit. In her affidavit Ms F deposes in respect of Mr Cottrell as follows: Mr Cottrell’s health is not good, and he has repartnered.[21] I suspect that the negative expressed in respect of the husband’s health is a typographical error.
[21] See Ms F’s affidavit filed 24 May 2022 at [35].
Ms F’s affidavit is replete with active and implied criticisms of the husband, which arise in the controversy of when the parties separated and what she would assert are her and her husband and her mother-in-law’s exclusive provision of care to the wife in her last years. The implication being that the husband is some form of predator in respect of infirm women.[22]
[22] See Ms F’s affidavit filed 24 May 2022 at [21].
As previously indicated, it is Ms F’s case that various incidents of misconduct, which she ascribes to the husband, disqualify him from being able to occupy the relevant property. In particular, she alleges that he has breached both the interim IVO and the terms of the court’s order of 2 March 2022 by attending at the property, without giving notice and receiving permission. His presence was caught on CCTV, which she alleges has subsequently been disabled. Mr Cottrell denies these allegations.
Ms F further asserts that she had been managing the wife’s financial affairs, prior to her death and needs time to assess what further liabilities the estate may have. Her position is summarised in the following extract from her recent affidavit:
It was always Ms Cottrell’s wish that the real property be left to her grandchildren. She fostered my sister and I growing up and the real property was our family home for many years.
I continue to spend time there and for the past 3-4 years I have been assisting in the maintenance and upkeep of the property.[23]
[23] See Ms F’s affidavit filed 24 May 2022 at [41] – [42].
Although she does not put it in such terms, her case is based on what she would assert are the estate’s superior moral claim on the disputed property, which is based on what she alleges is the fact that the husband has had limited physical connection with it, for a significant period of time, whilst he has pursued his own interests independently of the late wife. In addition, she contends that what she has proposed as a viable settlement of the case will enable the husband to obtain suitable accommodation, if he needs it (which is not conceded) and have sufficient ongoing financial support.
On the other hand, the husband contends that he is essentially homeless and has an obvious legal entitlement to occupy the house in which he has a legal interest and none of the other interested parties – the beneficiaries under the late wife’s will are subject to the same pressing accommodation restraints as him.
In response, Ms F points to the lack of articulation in the husband’s application for final orders and by necessary implication contends that he wants to occupy the home, in the short term, as a tactical ploy. The central evidentiary issue in the case – is or is not the husband living in a cold and leaky bus at present – cannot be resolved in the context of these interim proceedings.
The difficulty arising in the case is easily expressed. Both parties want to retain the house or have the opportunity to do so. Clearly it is untenable that both occupy it, given the long standing rancour between them. In these circumstances, the court must make an invidious decision, which will inevitably cause distress to one or other of the parties.
It is a case which is crying out for compromise. I fear it has the potential to consume a significant proportion of the relevant asset pool in legal fees. Cases which precipitate a strong emotional reaction, as does the present one, for understandable and human reasons, do not often provide an environment which is amenable to objective decision making, by the individuals concerned.
I regret the fact that I am called upon to make the necessary determination, fearing the prospect that the discord it may precipitate will distract the parties from being able to focus on a sensible resolution of the case.
LEGAL PRINCIPLES RELATING TO SOLE OCCUPANCY
The basis of the husband’s occupation for sole occupancy, of the house, lies in sub-section 114(1) of the Family Law Act 1975 (Cth). The relevant portion of the section reads as follows:
114(1)…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 –
…
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
…
(e) an injunction in relation to the property of a party to the marriage;
(f) an injunction relating to the use or occupancy of the matrimonial home.
Given the wide terms of reference of the section, I am satisfied I have the authority to authorise the husband’s occupation of the house to the exclusion of the wife’s estate, although, in technical terms, it has not been the shared home of the husband and wife for a reasonably significant period of time.
The relevant discretion is to be exercised by reference to what is considered to be proper. The court has authority to make such orders in proceedings which relate to a matrimonial cause. Clearly the current proceedings, notwithstanding the death of the wife are such a matrimonial cause, given the institution of proceedings, whilst the wife was alive.
The Full Court of the Family Court has described the criteria to be applied to a sole occupancy application as “surprisingly vague”.[24] The seminal case regarding the use of section 114, in sole occupation applications, is Davis[25].
[24] See S & S (2002) FamCA 59 at [32].
[25] Davis v Davis (1976) FLC 90-062.
In that case, it was said that the matters to which the court should have regard, in its deliberations, as to whether it was “proper” to make a sole occupation included the following:
·The means and needs of the parties;
·The needs of any children concerned;
·Hardship to either party, including any relevant children;
·If relevant, conduct which justifies one party being expelled from the former matrimonial home. [26]
[26] See Davis v Davis (1976) FLC 90-062 at 75,309.
These various considerations can be summarised under the rubric of the balance of convenience. The court is called upon to weigh up competing claims of right, advanced by each of the parties, and balance the convenience for one party in the injunction being granted with the inconvenience such an injunction is likely to cause to the other.
More recent cases have focussed on issues related to strict practicality, within what has been coined, the realities of family life. The question which it has been said the court should pose for itself being:
[I]s it really sensible to expect a wife … to endure the pressures which the continued presence of the other spouse will place upon them.[27]
[27] See Bassett v Bassett (1975) 1 AER 513 at 520 approved in Page v Page (1981) FLC 91-025.
Mere inconvenience to the parties concerned is not sufficient to justify a sole occupancy order. The court has been directed to be alive to the risk that a spouse may use a sole occupancy injunction as a tactical weapon in the ongoing matrimonial conflict.
Accordingly, caution is required in assessing whether such an order should be made, particularly as, at the interim stage, it is often likely to be difficult for the court to predict who of the parties ultimately is likely to retain control of the property concerned, as issues to do with contribution have not as yet been determined.
In Price Lindenmeyer J indicated there had been a “softening of the court’s attitude” towards exclusive occupation orders. There was now no onus on an applicant for such an order to demonstrate irrational, intolerable or awful behaviour on the part of the party whom it was sought to exclude.
Rather:
[T]he court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.[28]
[28] See Price (unreported) 12 July 1982 approved in S & S (2002) FamCA 59 at [35].
As the power to grant an injunction is a discretionary one, it must not be exercised lightly, particularly if any interference with a spouses proprietorial interests is envisaged. As such, the court should not proceed on “vague or uncertain claim[s]”.[29]
[29] See Sieling v Sieling (1979) FLC 90-627 at 78,264.
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 in respect of that property.
The court must examine the entire circumstances of the parties concerned and determine whether, on the facts of a particular case, such an order is justified. Essentially, the court must determine whether any order is proper and ensure that individualised justice is delivered.
CONCLUSIONS
In the old case of O’Dea & O’Dea[30] Murray J remarked that it was a very serious thing to turn a spouse out of a property, which he or she owned. In my view, this is a significant factor which favours the husband. He has a legal interest in the house, being registered as a tenant in common with the late wife. The property was his home for many years.
[30] O’Dea & O’Dea (1980) FLC 90-896 at 75,648
I have taken some time to outline the various legal principles, which will be applied in determining the competing claims of the parties in respect of the marital property. On any view, the husband has a claim to a significant proportion of this property given considerations of prospective factors can now only favour him. In addition, the claims of the estate turn on the moral obligations, which arise in respect of the late wife’s nominated beneficiaries, her grandchildren Ms F and Ms G.
The late wife’s will left her grandchild a percentage of her estate, not her interest in the property specifically. In addition, it is the case that neither of the beneficiaries has a pressing need of accommodation per se. They live in their own homes.
Although the husband’s claim of homelessness is contested and the issue cannot be resolved at this interim stage, I am not in a position to be able to dismiss his claim definitively. However, if he is living in a cold and leaky bus, which he must move around, this is axiomatically very inconvenient. Accordingly, on balance, issues of hardship favour the husband.
Any inconvenience to the estate, occasioned by the fact that the late wife’s possessions are still in the house can, in my view, be ameliorated by the estate being granted some time to remove these items from the property. This will be inconvenient but in my view less so than the situation confronting the husband, if the court accepts his case at its highest.
Part of the estate’s moral claim to have sole occupancy of the home pending the resolution of the case turns on the assertion that the wife wished the property to remain in her family. This may be so, but the will does not express such a desire. I am not in a position to ascertain definitively how the case will be resolved at final hearing.
However, if the estate is to retain the house, it would seem inevitable that it would have to purchase the husband’s interest in the property. What would be the precise mechanics of such a proposal are currently unclear to me, other than it has been proposed that it would utilise some of the funds, to which it claims an equitable interest, which will be released when the land is sold.
It is part of the estate’s case that the husband is expressing a desire to move into the house for tactical reasons. In support of this position, it is asserted that the husband has not actually lived in the house for many years and can have neither an emotional attachment to it nor a practical need for it, given he has been making alternative arrangements for some time. In this context, there is a dispute about when the parties separated and the husband’s degree of connection to it in recent years. Again, this cannot be resolved at this stage.
However, if the parties are able to compromise the case, it remains possible that the estate can retain the property. Obviously, the husband’s sole occupancy, indeed the estate’s occupation of the property, is reversible. This is significant, in my view, given the estate does not have a pressing need for immediate occupation.
In these circumstances, it is my view, that issues concerning the husband’s allegedly precarious accommodation, as opposed to the estate’s moral claims to the property, must be regarded as more significant in the resolution of this interim issue. This is particularly the case given the husband’s occupation must be considered to be reversible, particularly if the parties reach some form of accommodation with each other.
The tenor of the estate’s case is that the husband is an unreliable and reprehensible person, who is not to be trusted. As such, it would not be proper for the court to exercise its discretion in his favour. In this context, reliance is placed on the fact that he allegedly entered the premises, in breach of the court’s order and returned the wife’s motor vehicle in a poor state of repair.
If true, these issues do demonstrate a cavalier attitude on the part of the husband to the concerns of the estate, but in my view, if true, this conduct is not of such moment to deprive the husband of his entitlement to occupy the real property of which he is a registered proprietor.
For these reasons, I propose to grant the estate fourteen days from the date of these orders to make appropriate arrangement in respect of the late wife’s immediate effects remaining at the property. I hope, perhaps vainly, that there can be some sensible arrangements regarding the furniture in the property to which, at first blush, given the length of the marriage between the parties, the husband is likely to have some claim. However, this is not an issue which has been ventilated before me.
Pending resolution of the case, I will authorise the husband to have the sole occupation of the property, after the conclusion of this fourteen day period and will discharge the relevant provisions of the earlier order in this regard.
As has been agreed, I will refer the parties to a conciliation conference to enable them to explore resolution of the case in the now different circumstances, which prevail. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 2 June 2022
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