DEANE & TENNANT

[2020] FamCA 428

FAMILY COURT OF AUSTRALIA

DEANE & TENNANT [2020] FamCA 428

FAMILY LAW – PROPERTY – Interim – where a previous order provides for the payment of the wife’s rental costs by the husband from a joint business bank account upon the provision of a signed rental lease – where the wife seeks enforcement of the order to the extent to enable reimbursement of her asserted rental arrears – where the husband seeks that the order providing for payment of the wife’s rental costs be discharged – where both applications are dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Deane  

RESPONDENT: Mr Tennant

FILE NUMBER: BRC 7048 of 2017

DATE DELIVERED: 29 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hellewell

SOLICITOR FOR THE APPLICANT: Nita Stratton-Funk & Associates

SOLICITOR FOR THE RESPONDENT: Mr Hunter, Hunter Family Law

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 17 April 2020 (and sealed 20 April 2020) is otherwise dismissed.

2. The Response to Application in a Case filed 1 May 2020 is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deane & Tennant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7048 of 2017

Ms Deane

Applicant

And

Mr Tennant

Respondent

REASONS FOR JUDGMENT

1. On 21 May 2020, I heard Ms Deane and Mr Tennant in relation to the relief sought by each in the Application in a Case filed on 17 April 2020 (and sealed 20 April 2020) and the Response to the same filed on 1 May 2020.

2. Whilst I determined most of the matters in dispute that day, I reserved my decision in relation to the following relief sought:

   a)by Ms Deane:  that, within seven (7) days, Mr Tennant deposit the sum of $5,400.00 from the joint B Bank Account ending in #...10 into her bank account, by way of reimbursement of the asserted outstanding debt owing on a previous rental lease; and

   b)by Mr Tennant: that Order 11.f. of the Orders made on 11 October 2017 (the October 2017 orders) be discharged.

3. Order 11.f. of the October 2017 orders relevantly provides as follows:

   The Applicant husband [Mr Tennant] shall pay or cause to be paid the following from the joint B Bank Account (number …10):

   f. to the Respondent wife [Ms Deane]: upon her providing him with a signed lease agreement for residential premises in which she intends to live, an amount of the rental payments prescribed in the agreement up to the amount of $450.00 per week, with such sum to be used by the Respondent wife to pay her rental payments.

4. In summary then, Ms Deane seeks enforcement of Order 11.f. to date and that it remain in force; Mr Tennant seeks its discharge. The relief sought by both occurs in circumstances where the final hearing of the matter is listed for three days commencing on 19 October 2020.

5. In order to appreciate the relevant context of the current competing applications which relate to Order 11.f., it is relevant to note that the October 2017 orders also provided that Mr Tennant have sole use of real property located at K Town in New South Wales, at which Ms Deane and Mr Tennant had previously lived and from which they had previously conducted a hire business and a small planation and on which they had previously run some livestock.  At the time the October 2017 orders were made, Ms Deane was living at the K Town property. Consequently, the implementation of the sole use and occupation aspect of the October 2017 orders meant that she was required to vacate the K Town property so that Mr Tennant could move to live at the same and continue to conduct these operations.

Ms Deane’s claim for the payment of unpaid rental payments arising from the January 2018 lease

1. A number of matters are, as I understand the evidence relied on by each of the parties on this application, uncontroversial:

   a)Mr Tennant has not paid or caused any money to be paid to Ms Deane pursuant to the terms of Order 11.f. of the October 2017 orders; and

   b)Ms Deane provided Mr Tennant with a copy of a lease agreement[1] in February 2018: whilst the lease, which was  dated 21 January 2018 and was between  C Pty Ltd (as lessor) and Ms Deane (as lessee) and was for a period of one year and stipulated the sum of $475.00 as the weekly rent payable, it did not include the address of the premises to which it related – although this (D Street, E Town) was nominated in email correspondence between Ms Deane and Mr Tennant;[2] and

   [1] Affidavit of the husband filed 1 May 2020, Annexure “X”.

   [2] Affidavit of the husband filed 1 May 2020 at [102].

   c)Mr Tennant carried out a number of inquiries about the E Town property and, on his account, learned that:

   i)the real estate agency listed on the lease did not have the property for lease;[3] and

   [3] Affidavit of the husband filed 1 May 2020 at [103].

   ii)it was owned by a friend of the wife’s new partner and was being advertised as a holiday rental through a company owned by one of Ms Deane’s friends;[4] and

   [4] Affidavit of the husband filed 1 May 2020 at [104].

   iii)when he sought to book the property, it was available to be let during the period when Ms Deane was said to have been renting it;[5]  and

   d)Mr Tennant subsequently made a complaint to New South Wales police alleging that the lease was fraudulent; and

   e)on Ms Deane’s account:

   i)she was subsequently evicted from the property in about May 2018, when the rental arrears were said to have been $5,400.00 and has since been residing with her current partner (Mr F) as she cannot afford to rent premises of her own without the payment Mr Tennant is required, by Order 11.f. of the October 2017 orders, to make to her; and   

   f)Mr Tennant contends that, despite requests, he has not been provided with any documentation in relation to the rental default alleged by Ms Deane, nor has he been provided with documentation (such as a utility bill) in Ms Deane’s name which relates to the property;[6] and

   g)there are no documents (such as utility bills) in evidence on this application to support Ms Deane’s assertion that she occupied any rented premises pursuant to the lease provided to Mr Tennant in February 2018; and

   h)there are no documents in evidence on this application to establish that  the lessor has made a demand of Ms Deane that she pay unpaid rent in the amount of $5,400.00.

   [5] Affidavit of the husband filed 1 May 2020 at [106].

   [6] Affidavit of the husband filed 1 May 2020 at [109].

2. It is clear that the issue of the genuineness of the lease Ms Deane provided to Mr Tennant is a hotly contested issue between these two parties. It is also clear, it seems to me, that this issue can only be determined after the Court has the opportunity to hear each party be cross-examined about it.

3. Whilst it is true to say – as Counsel for Ms Deane did during the course of her submissions – that the terms of Order 11.f. require only the provision of a lease to Mr Tennant before he is compelled to cause the payment of up to $450.00 per week to be made to Ms Deane, I also consider that the underlying purpose and intention of the October 2017 order should not be forgotten.

4. Where the dispute between the parties about the January 2018 lease is as it is and the trial is listed for October 2020 and there is nothing to suggest that Ms Deane is being pressed by the lessor to pay rental arrears and Mr Tennant asserts that, at least partly because of the impacts of the COVID-19 pandemic on their operation, the businesses do not currently possess the financial resources to pay the $5,400.00 sought, I am not persuaded to make an order now requiring Mr Tennant to cause the payment of the sum sought.

5. Such conclusion should not, though, be seen as preventing Ms Deane from raising the issue at the final hearing or from then seeking whatever relief she considers appropriate by way of enforcement.

Mr Tennant’s application to discharge Order 11.f. of the October 2017 Orders

1. One of Mr Tennant’s contentions is that Ms Deane has previously sought to take the benefit of the monies to be paid to her pursuant to Order 11.f. of the October 2017 orders whilst not having a need for the same because she has been able to be accommodated with her partner. He contends that, in seeking to receive funds intended by the Order to be applied to meet rental payments when she was not liable to pay the same, she had attempted to undermine the financial viability of the businesses he continues to operate on the K Town property and which provide the source of the funds to be paid to Ms Deane. He also contends that the current financial position of the businesses is such that they cannot afford to make the payments to Ms Deane provided for in Order 11.f. of the October 2017 orders and so that order should be discharged. A further basis for the discharge of Order 11.f. was submitted to be Ms Deane’s evidence in her 30 January 2020 affidavit that she was living with her partner, albeit that it was also submitted that she also gave evidence that she had lived with friends also.

2. I am not persuaded to discharge Order 11.f. of the October 2017 orders.

3. In arriving at this decision I have taken into account and placed particular weight upon the submission made by Counsel for Ms Deane to the effect that, absent receipt of the payment provided for in Order 11.f. of the October 2017 orders, Ms Deane has, in essence, been forced to live in accommodation not of her choosing. I have also taken the nature of her business into account: whilst the submissions made by Mr Tennant’s solicitor included that I would be persuaded that Ms Deane earned sufficient income from her business to be able to meet her own accommodation costs if she so chooses, I consider it highly likely that her ability to earn an income from her business has been significantly adversely affected by the current pandemic and the consequent government-imposed public restrictions.

4. It is, I think, appropriate that I record that the parties agree that, in October 2019, Ms Deane provided Mr Tennant with a second lease, which was dated 7 October 2019 and was between a Mr G of G Pty Ltd (as lessor) and Ms Deane (as lessee) and which was for a period of six months at a rental of $450.00 per week.

5. On Mr Tennant’s account, whilst the lease related to a property in Suburb H, it did not contain the street address of the same;[7] he also asserted that the lessor was a company owned by a friend of the wife’s new partner[8] and said that he had asked Ms Deane to contact his solicitor about the lease, but she had not done so.[9]  Counsel for Ms Deane submitted that, when Mr Tennant failed to cause Ms Deane to receive the necessary payment, she was required to live with friends in J Town and Sydney, as well as with her partner.

   [7] Affidavit of the husband filed 1 May 2020 at [110].

   [8] Affidavit of the husband filed 1 May 2020 at [111].

   [9] Affidavit of the husband filed 1 May 2020 at [111].

6. So that Mr Tennant is not left under any future misapprehension, it is not a requirement of Order 11.f. that the person with whom Ms Deane seeks to enter into a lease for the rental of residential premises in which to live is completely unknown to her or her partner.

7. For the reasons expressed above and in circumstances where the balance of the relief sought by Ms Deane in her Application in a Case filed 17 April 2020 (and sealed 20 April 2020) and the relief sought by Mr Tennant in his Response to the Application in a Case filed 1 May 2020 has already been the subject of order, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 May 2020.

Associate:     

Date:              29 May 2020