COURTNEY & COURTNEY
[2020] FCCA 3296
•23 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COURTNEY & COURTNEY | [2020] FCCA 3296 |
| Catchwords: 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 |
| 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 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.
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.
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);
(c)the Wife shall be responsible for the proper maintenance of the farm including plant equipment and livestock.
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.
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.
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Courtney & Courtney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLC 9730 of 2020
| MS COURTNEY |
Applicant
And
| MR COURTNEY |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
This is an Interim Application filed by way of an Application in a Case on 20 October 2020 by the Husband and Response to the Application in Case filed 12 November 2020 by the Wife.
Both parties are seeking to have sole use and occupation of a property at A Road, Suburb B owned by them on which previously sat the former matrimonial home (“the farm”). The former matrimonial home was demolished and building works for a new home commenced on the farm this year. It was during the time that building of the new house commenced that the parties separated.
Background
The parties commenced cohabitation in mid-1994. They married 1994 and separated on 23 April 2020. The parties are not divorced.
The parties have three children; Ms E Courtney born 1998, X born 2007 and Y born 2009. All three children live with the Wife and currently spend limited time with the Husband.
The common ground between the parties is that the Wife's mother has made available in excess of $1 million from the proceeds of sale of a property owned by her, and she has authorised those funds to be utilised by her daughter in such way as she chooses. In her affidavit filed 20 November 2020, the Wife deposes evidence that her mother gave her the funds in the full knowledge that those funds will be used, at least in part, towards the completion of the home on the farm. It is also common ground between the parties that part of the Wife’s mother’s funds are to be used to pay the costs of the nursing home in which the Wife’s mother now resides.
When the original former matrimonial home on the farm was demolished, the parties and their three children, aged 11, 12 and 22, moved into an investment property owned by the parties in Suburb D (“the investment property”).
After the parties separated in April 2020, the Husband moved with his then new partner into a rental property in May 2020. Between April and August 2020, it was the Wife who primarily attended to all issues relating to the ongoing building works on the farm and, depending on whose evidence I accept, the majority of the other matters relating to the maintenance of the farm.
In or around August 2020, there were issues between the parties which resulted in mutual intervention orders. There were no proceedings at that time before this Court. The Husband’s intervention order restrained the Wife from attending the farm. Further applications were then made by the Wife and the Husband’s intervention order was varied so that the Wife is now able to attend the farm three times a week at the invitation of the builder.
In August 2020 the Husband moved a caravan onto the farm which he apparently then moved in to.
The new four‑bedroom house on the farm is now close to completion and both parties are seeking that they be afforded the opportunity of sole use and occupation of the new home.
The Law
The relevant section of the Family Law Act 1975 (Cth) to which this Application applies is found in section 114(1) which grants the Court injunctive powers. Specifically, section 114(1)(e) 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… an injunction in relation to the property of a party to the marriage”.
Counsel for both the Husband and the Wife made reference to numerous cases in relation to determining issues of this type. Counsel for the Husband referred to the Full Court decision in S & S [2002] FamCA 59. Counsel for the Wife referred the Court to the recent decisions of Justice Wilson of Macleay & Glenister [2019] FamCA 646 and Belcher & Belcher [2019] FamCA 205.
These cases summarise the well-established principles that when determining an application for sole use and occupation, the court should consider the means and needs of the parties, the needs of the children, the hardship to either party or the children and the conduct of one party which may justify the other having to leave the home.
The Parties’ Positions
The Husband’s Application
Counsel on behalf of the Husband quite rightly points out that this case differs from the “standard” sole use and occupation case in that there are two properties available to the parties in which each can live. Whilst the parties have another property available to them other than the new house on the farm, it is not usual for an application to come before the court where one or both of the parties seek the sole use and occupation of what to them is the “better” property available for occupation.
In support of his application to have sole use and occupation of the new home on the farm, the Husband argues that there is a status quo that has been in place since August 2020 that sees him living on the farm and the Wife and the children living in the investment property. It is therefore argued that there are no compelling reasons to change that arrangement. In support of that contention, it is submitted on behalf of the Husband that he is better placed to manage the maintenance of the farm and the livestock currently on it.
It is further submitted on behalf of the Husband that neither party will be able to retain the farm given the parties have a very small net pool of assets available for division between them and it is submitted on behalf of the Husband that the Wife is not able to service the current mortgage on the farm at this time and will not be able to do so in the future. Because of this, the Husband argues there should be no change to the current living arrangements of the parties and particularly the children as it is apparent whoever lives on the farm will have to move once the matter is finalised.
Counsel on behalf of the Husband submits that when the Court considers the factors identified in S & S (supra), there is nothing in the Wife’s evidence which would justify this Court disturbing what he argues is currently the status quo, which sees the Husband living on the farm.
The Wife’s Application
Counsel on behalf of the Wife submits that there is no status quo. Neither party is living in the property in dispute. The Husband is in a caravan that, it is submitted, was unilaterally moved to the farm by the Husband when he took advantage of the intervention order process.
The Wife and the children are currently living in the investment property and it is submitted that the new home on the farm will better meet the needs of she and the children on an interim basis. The investment property has only three bedrooms the parties’ eldest child, Ms E Courtney is apparently sleeping in the garage. The new house on the farm has four bedrooms.
It is further submitted that it is only fair the Wife and children live in the property given much of its construction has been funded through the auspices of the generosity of the Wife’s mother.
The Wife submits she believes she may well be able to retain the farm as a final outcome in these proceedings, though concedes at this time the Court has no evidence that supports that contention. It is argued that if the Wife is required to pay the mortgage on that property pending the finalisation of the matter, she will be able to do that with the assistance of her mother's funds.
Conclusion
I am in agreement with Counsel for the Wife that there is not currently a status quo. The Husband moving into a caravan that he unilaterally placed on the farm does not create a status quo.
This is a very recent move by the Husband and is somewhat confusing as the evidence initially before the Court was that the Husband was living with his new partner. It would appear on his evidence that he has now separated from this person.
Given I am not persuaded by the Husband’s argument that there is an existing status quo that sees him living on the property in dispute, I will look at the respective positions of the parties. This will include considering the needs of the children and make a decision on the balance of convenience as to what should be the appropriate arrangements in relation to who has the occupation of this property, pending this matter being resolved on a final basis.
I am in agreement with the submissions made on behalf of the Wife that her needs, and more particularly the needs of the parties' three children, are best met if she and the children have the opportunity of living in a brand new home. Whether that be for an interim period or on a longer term basis will be determined in due course.
Therefore, I will accede to the application of the Wife that, upon completion of the new house on the farm, she and the children have sole use and occupation of that property.
The Husband will need to organise the removal of the caravan. It is a matter for him whether he decides to move into the vacated investment property.
Whether he chooses to live in the investment property or not, the Husband will be responsible for the mortgage and outgoings relating to the investment property as he has been since separation.
Upon taking occupation of the farm, the Wife will be responsible for the outgoings in relation to the farm. Currently the mortgagee has given the parties a moratorium in relation to the mortgage on the farm until March 2021. If the bank will not extend that moratorium beyond that time, it will be the Wife who is to be responsible for those mortgage payments.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 3 December 2020
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