COURTNEY & COURTNEY - [2020] FCCA 3296

FEDERAL CIRCUIT COURT OF AUSTRALIA

COURTNEY & COURTNEY

[2020] FCCA 3296

Catchwords:
FAMILY LAW – Property – Interim Application – Competing Applications for sole use and occupation of soon to be completed house on a farm property owned by the parties.

HELD – Until further order – Wife and children to have sole use and occupation of the completed house

Legislation:

Family Law Act1975 (Cth), s 114(1)

Cases cited:

S & S [2002]FamCA 59
Belcher & Belcher [2019] FamCA 205
Macleay& Glenister [2019] FamCA 646

Applicant:

MS COURTNEY

Respondent:

MR COURTNEY

File Number:

MLC 9730 of 2020

Judgment of:

Judge Bender

Hearing date:

23 November 2020

Date of Last Submission:

23 November 2020

Delivered at:

Melbourne

Delivered on:

23 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

Bonnie-Jean McCormack

Counsel for the Respondent:

Mr Tatarka

Solicitors for the Respondent:

Rose Legal Barristers & Solicitors Pty Ltd

ORDERS

The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Bendigo on 22 February 2021 at 10:00am in the duty list.
The parties file and serve any further affidavits they seek to rely upon in relation to any interim matters by 4:00pm on 15 February 2021.
Unless by 15 January 2021 the parties have confirmed in writing an agreement as to the market value of A Road, Suburb B (“the farm”).and/or the property at C Road, Suburb D (“the Suburb D property”) then the parties forthwith do all acts and things necessary to obtain a joint sworn valuation from an appropriately qualified person, the costs of same to be borne equally by the parties and such valuation to be filed with the Court not later than 4:00pm on 20 January 2021.
On or before 14 February 2021, the parties (and if represented, their legal representatives) attend a Mediation with an agreed Mediator with the costs of the Mediator to be paid by both parties equally.
The parties’ solicitors’ (and if they are unrepresented, the parties’ themselves) send to the other, and the nominated Mediator, at least 7 days before the Mediation, copies of:
(a)all relevant applications and responses, affidavits and financial statements filed in the proceedings;
(b)any relevant documents exchanged between the parties;
(c)any intervention or restraining orders currently in force;
(d)a copy of a market appraisal or valuation of any;
(e)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(f)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
In the event that the matter does not settle at the Mediation and the parties have not complied with orders 5(a) to 5(e), the Mediator is directed to contact the Chambers of Judge Bender prior to the end of the Mediation in order to urgently list the matter for further directions and submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3296
Decision Date: 23 November 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Bender considered competing interim applications by the Wife and Husband concerning the sole use and occupation of a house under construction on a farm property owned by the parties. The dispute arose in the context of family law proceedings.

The court was required to determine who should have interim sole use and occupation of the newly completed house on the farm, and to make orders regarding the management of the building works and the occupation of the farm and a separate property located in Suburb D. The court also needed to address the financial responsibilities for the respective properties and the living expenses of the Wife's mother.

The court ordered that until further order, the Wife would have sole management and control of the building works on the farm and was granted sole use and occupation of the Suburb D property. The Husband was restrained from entering the building works area and from altering or removing certain items on the farm without the Wife's consent. Pending completion of the building works, the Husband was permitted to occupy the farm in caravans, provided he did not enter the building works area. Upon completion of the building works, the Wife was to have sole use and occupation of the farm, and the Husband was to remove certain caravans. The Wife was to be responsible for the farm's outgoings and maintenance, while the Husband was to be responsible for the Suburb D property's outgoings. The Wife was also ordered to cover her mother's living and nursing home expenses.

Orders

Orders of the court

The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Bendigo on 22 February 2021 at 10:00am in the duty list.

The parties file and serve any further affidavits they seek to rely upon in relation to any interim matters by 4:00pm on 15 February 2021.

Unless by 15 January 2021 the parties have confirmed in writing an agreement as to the market value of A Road, Suburb B (“the farm”).and/or the property at C Road, Suburb D (“the Suburb D property”) then the parties forthwith do all acts and things necessary to obtain a joint sworn valuation from an appropriately qualified person, the costs of same to be borne equally by the parties and such valuation to be filed with the Court not later than 4:00pm on 20 January 2021.

On or before 14 February 2021, the parties (and if represented, their legal representatives) attend a Mediation with an agreed Mediator with the costs of the Mediator to be paid by both parties equally.

The parties’ solicitors’ (and if they are unrepresented, the parties’ themselves) send to the other, and the nominated Mediator, at least 7 days before the Mediation, copies of:

(a) all relevant applications and responses, affidavits and financial statements filed in the proceedings;

(b) any relevant documents exchanged between the parties;

(d) a copy of a market appraisal or valuation of any;

(e) a copy of the actual terms of orders required to give effect to their settlement proposal; and

(f) written confirmation by each party or their solicitor that:

(i) all relevant documents have been exchanged between the parties; and

(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

In the event that the matter does not settle at the Mediation and the parties have not complied with orders 5(a) to 5(e), the Mediator is directed to contact the Chambers of Judge Bender prior to the end of the Mediation in order to urgently list the matter for further directions and submissions with respect to costs.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The Wife shall have sole management and control of the building works on the farm.

The Husband to forthwith provide to the Wife any keys in his possession for the building works on the farm.

The Husband be and is hereby restrained from:

(a) coming within 10 metre of or entering into the building works on the farm; and

(b) altering or removing any fixtures, structures, chattels trees or shrubs (over 1 metre in height) situated on the farm (save for the removal of his caravans as provided by order 11(b).

save with the prior written consent of the Wife.

10.

Pending the completion of the building works on the farm:

(a) the Wife to have sole use and occupation of the Suburb D property to the exclusion of the Husband; and

(b) the Husband be permitted to occupy the farm to such extent as may be necessary to live in the caravans that he has placed on the farm, if he chooses, however in living in the caravans on the property he shall not come within 10 metres of or enter into the building works on the farm.

11.

Upon completion of the building works on the farm:

(a) the Wife to have sole use and occupation of the said premises and the farm to the exclusion of the Husband and the Husband to do all such acts and things as may be necessary to facilitate this;

(b) the Husband to remove the caravans placed by him on the farm after 13 August 2020 (save for the caravan owned by the parties’ adult daughter Ms E Courtney);

12.

Upon completion of the building works on the farm the Wife to vacate the Suburb D property and thereafter until further order the Husband to have sole use and occupation of the Suburb D property to the exclusion of the Wife.

13.

The Wife to pay all instalments pursuant to any mortgage and all rates and taxes and like and like apportionable outgoings of the farm property as and when they fall due.

14.

The Husband to pay all instalments pursuant to any mortgage and all rates and taxes and like apportionable outgoings of the Suburb D investment property as and when they fall due.

15.

The Wife pay all living expenses for her mother, Ms F, including Ms F’s nursing home fees as and when they fall due.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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