Dickinson & Packam

Case [2021] FamCA 298

FAMILY COURT OF AUSTRALIA

Dickinson & Packam [2021] FamCA 298

File number(s): SYC 2467 of 2021
Judgment of: MCCLELLAND DCJ
Date of judgment: 13 May 2021
Catchwords: FAMILY LAW – PROPERTY – Interim – Exclusive Occupation of the former matrimonial property – Balance of convenience – Where the parties are involved in NCAT proceedings concerning the former matrimonial property in circumstances where the parties have not complied with provision for repair works to be undertaken to the property following a Deed being entered into with the Body Corporate – Orders made for the wife to be granted sole and exclusive use of the property – Orders made authorising the wife to undertake the necessary repairs.
Legislation: Family Law Act 1975 (Cth) s 114
Cases cited: Acton & Burton [2015] FamCA 469
Davis & Davis (1976) FLC 90-062
Iphostrou & Iphostrou [2011] FamCA 20
Jyotisha & Jyotisha [2016] FamCA 738
S & S [2002] FamCA 59
Number of paragraphs: 73
Date of hearing: 12 May 2021
Place: Sydney by web conference
Counsel for the Applicant: Mr Lawrence
Solicitor for the Applicant: Gayle Meredith & Associates
Counsel for the Respondent: The Respondent in person

ORDERS

SYC 2467 of 2021
BETWEEN:

MS DICKINSON

Applicant
AND:

MR PACKAM

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:

1.That within 48 hours of these orders, the husband do all acts and things necessary in relation to the property situated and known as B Street, Suburb C, NSW (“the Suburb C property”):

(a)to irrevocably authorise and direct Mr D of “F Builders” to transfer the monies held by him for the purpose of paying for work to be undertaken by F Builders to the Suburb C property to a bank account of the wife;

(b)in relation to all monies received by the husband in addition to the sum referred to in Order 1(a) herein from the Owners Strata - Plan number … (“the Owners Corp”) pursuant to Deed of Settlement and Release entered into between the Owners Corp and the husband and dated 16 September 2019 (“the Deed”) that the husband transfer such monies to a bank account of the wife;

(c)to irrevocably authorise and direct the Owners Corp and the Strata Manager of Owners Strata – Plan number …to deal with the wife on his behalf as the owner of the Suburb C property in relation to all issues which relate to the Suburb C property including in relation to the Deed;

(d)to irrevocably authorise the wife to instruct M Pty Ltd or another tradesperson retained to undertake the work to the Suburb C property pursuant to the Deed and to otherwise rectify the Lot Property Damage and Common Property Damage as defined in the Deed (“the Damage”) and any additional defects in the Suburb C property;

(e)to sign any written consent required under section 143(1) of the Strata Schemes Management Act 2015 (“the SS Act”) consenting…

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Dickinson & Packam [2021] FamCA 298
Case
[2021] FamCA 298
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CaseChat Overview and Summary

In this matter before McClelland DCJ, the wife sought interim orders for the exclusive occupation of the former matrimonial home, located at B Street, Suburb C, NSW, and for authorisation to undertake necessary repairs to the property. The husband opposed these orders, seeking exclusive occupation for himself to carry out repairs or, alternatively, seeking exclusive occupation of a different property. The dispute arose in the context of ongoing NSW Civil & Administrative Tribunal (NCAT) proceedings concerning the property, following a Deed of Settlement and Release entered into between the parties and the Body Corporate regarding repair works.

The court was required to determine whether to grant the wife exclusive use and occupation of the former matrimonial home and whether to authorise her to arrange and oversee the necessary repairs. A key legal issue was the allocation of responsibility for undertaking these repairs, particularly in light of the parties' non-compliance with previous agreements and the existence of insurance monies designated for the work. The court also considered the appropriate interim orders to manage the parties' interests in both the Suburb C property and another property at H Street, Suburb J, pending final resolution.

McClelland DCJ applied principles relating to interim injunctions concerning the matrimonial home, noting that such orders are serious and should only be granted in exceptional circumstances, requiring a proper factual basis. The court considered the means and needs of the parties, the needs of the children, and the conduct of the parties, balancing the hardship of making or refusing the order. In this instance, the court found it appropriate to grant the wife exclusive occupation and to empower her to arrange and oversee the renovations, reasoning that she should be the beneficiary of the order for exclusive occupation. The court also determined that the husband should be restrained from dealing with the properties and that the parties should seek to adjourn the NCAT proceedings.

The court made orders granting the wife sole and exclusive use and occupation of the Suburb C property, restraining the husband from entering it. The husband was ordered to provide irrevocable authorisation for the wife to access and direct the use of insurance monies held for repairs and to deal with the Owners Corporation on his behalf. The wife was authorised to instruct tradespersons to undertake the repairs and was restrained from using the funds for any other purpose. The husband was also ordered to pay for any shortfall in repair costs up to a specified amount if the insurance monies were insufficient. Both parties were restrained from selling or encumbering the Suburb C property or the Suburb J property pending further order, and were directed to seek an adjournment of the NCAT proceedings.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. That within 48 hours of these orders, the husband do all acts and things necessary in relation to the property situated and known as B Street, Suburb C, NSW (“the Suburb C property”):

(a) to irrevocably authorise and direct Mr D of “F Builders” to transfer the monies held by him for the purpose of paying for work to be undertaken by F Builders to the Suburb C property to a bank account of the wife;

(b) in relation to all monies received by the husband in addition to the sum referred to in Order 1(a) herein from the Owners Strata - Plan number … (“the Owners Corp”) pursuant to Deed of Settlement and Release entered into between the Owners Corp and the husband and dated 16 September 2019 (“the Deed”) that the husband transfer such monies to a bank account of the wife;

(c) to irrevocably authorise and direct the Owners Corp and the Strata Manager of Owners Strata – Plan number …to deal with the wife on his behalf as the owner of the Suburb C property in relation to all issues which relate to the Suburb C property including in relation to the Deed;

(d) to irrevocably authorise the wife to instruct M Pty Ltd or another tradesperson retained to undertake the work to the Suburb C property pursuant to the Deed and to otherwise rectify the Lot Property Damage and Common Property Damage as defined in the Deed (“the Damage”) and any additional defects in the Suburb C property;

(e) to sign any written consent required under section 143(1) of the Strata Schemes Management Act 2015 (“the SS Act”) consenting to the making of a common property rights by-law under S142 of the SS Act authorising the undertaking of any variations to the works necessary to rectify the Damage and/or any additional defects in the Suburb C property or otherwise as required in the future;

(f) provide an irrevocable authority to the wife to undertake the work to the Suburb C property pursuant to the Deed and otherwise rectify the Damage on his behalf as the “Owner” for the purpose of Special By-law 13 of the By-laws of Strata Plan number ... or any common property rights by-law referred to in order 2.5 herein necessary to rectify the Damage and/or any additional defects in the Suburb C property.

2. That the wife be restrained from using the monies that she receives pursuant to Order 1 herein other than for the purpose of the work to the Suburb C property required pursuant to the Deed and otherwise rectifying the Damage and any additional defects to the Suburb C property.

3. That forthwith upon the wife receiving the funds referred to in Order 1 that the wife do all acts required to cause the work to the Suburb C property required pursuant to the Deed and to otherwise rectify the Damage and any additional defects to the Suburb C property using the funds paid to her pursuant to Orders 1(a) and (b) herein for that purpose.

4. That in the event the monies referred to in Orders 1(a) and (b) are insufficient to pay for all the work referred to in Order 3 herein that within seven (7) days of being provided with invoices that the husband pay such sums to M Pty Ltd or such other tradesperson that is retained to undertake the work provided that the total amount spent on repairs to the Suburb C property is less than or equal to $251,578.

5. That each of the husband and wife forthwith to do all acts and sign all documents necessary and do all reasonably possible to seek the Owners Corp agreement to adjourn the proceedings commenced by them as Plaintiff in the NSW Civil & Administrative Tribunal number ... (“the NCAT proceedings”) until after the work to the Suburb C property required pursuant to the Deed and rectification of the Damage is completed.

6. That pending further order, the wife have sole use and occupation of the Suburb C property and the husband be restrained from entering upon the property.

7. That pending further order, the parties be restrained from selling, further encumbering or drawing down further on any loan facility secured by mortgage against the Suburb C property or the property located at H Street, Suburb J (“the Suburb J”) otherwise dealing with the Suburb C property or the Suburb J.

8. That in default of the parties doing all acts and things and executing all such documents as are necessary to give effect to these orders within two (2) days of an obligation to do so as required under these orders, and on the Registrar being satisfied of such failure or neglect or default by any party by way of an affidavit evidence only, a Registrar of the Family Court of Australia at Sydney is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default pay to the other party to this Application that party’s costs and Disbursements on an indemnity basis.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

Background

Background to the litigation

The Application is opposed by Mr Packam (“the husband”). Comparatively, the husband is seeking an order for exclusive occupation of the Suburb C property for the purpose of carrying out work to the property or, alternatively, to negotiate the sale of the property without the work being undertaken. The husband is also seeking an order that instead of an order for exclusive occupation of the Suburb C property that an order be made for the wife to have exclusive occupation of a property at H Street, Suburb J (“the Suburb J property”) that is in the sole name of the wife. BACKGROUND In 2012, the parties commenced cohabitation and married in 2014. There are two (2) children of the relationship, namely: (a)Z born in 2013, currently aged seven (7) years, who has a diagnosis of Autism and Attention Deficit Disorder; and (b)Y born in 2015, currently aged five (5) years. The children currently reside with the wife at the Suburb C property and spend two (2) weekends over a three (3) week period with the husband from Friday afternoon until Sunday night as well as half school holidays. In October 2014, the parties moved into the Suburb C property which is held in the husband sole name, as inherited from his late father’s estate. The Suburb C property is currently encumbered and subject to a mortgage of approximately $320,000. The wife currently lives in the property with the children and has done so since October 2014. On 27 November 2015, the parties purchased the Suburb J registered in the wife’s sole name. The husband contends that the Suburb J was purchased from funds he received from his late father’s estate. On 7 February 2017, the Suburb C property was damaged by a storm. The Owners Corporation of Strata Plan No ... (“the Owners Corporation”), that manages the building, successfully made an insurance claim to L Ltd. On 14 April 2018, the parties separated on a final basis. The husband rented a property in Suburb N. During the course of the proceedings, the husband advised the Court that he currently lives in Suburb R and he intends to remain at that address in the “medium term” irrespective of what orders are made in these interim proceedings. On 16 September 2019, L Ltd assessed the Suburb C property and common property damage in the sum of $270,524, which was paid to the Owners Corporation in a lump-sum cash settlement. The husband and the Owners Corporation entered into a Deed of Settlement and Release (“2019 Deed”) for the sum of $251,578 (“the insurance monies”) to be paid to the husband to facilitate the necessary repair work being undertaken with the insurance monies. Relevantly, the 2019 Deed stipulated that the necessary works to repair the property must be undertaken within three (3) months from the date of the Deed or within such time as extended by written consent. In late 2019, the parties came to an agreement in respect to a final property adjustment and parenting plan. On 26 November 2019, an Application for Consent orders was filed in this Court however, that Application was dismissed following neither party complying with a Registrar’s request requisitioning further information. Neither party wishes to be now bound by those draft consent orders which the parties acknowledge provided for the wife to be given ownership of the Suburb C property and the husband to be given ownership of the Suburb J.

Evidence

Evidence Before The Court

The husband opposes the Application of the wife and seeks that orders be made in accordance with his Response to Initiating Application filed 29 April 2021, as follows:…2. That the respondent husband retain ownership of the property at B Street, Suburb C currently in his name. 3. That the respondent husband commence immediate and exclusive use and occupation of the in order to resolve the issues pertaining to the property 4. That the applicant wife retain ownership of and sole and exclusive use of the property at H Street. (As per original) EVIDENCE The wife relies upon the following documents: (c)Initiating Application and Application in a Case filed 7 April 2021; (d)Affidavit of the wife filed 7 April 2021; (e)Financial Statement filed 7 April 2021; (f)Affidavit of the wife in reply filed 7 April 2021; and(g)Tender Bundle of documents (marked ‘Exhibit A’). The husband relies upon the following documents: (a)Response to Initiating Application filed 29 April 2021; (b)Affidavit of the husband filed 29 April 2021; (c)Financial Statement filed 29 April 2021; and (d)Un-sworn written statement of the husband filed 11 May 2021 (marked ‘Exhibit B’). THE LAW – CONCEPTS AND PRINCIPLES The power of the Court to grant an injunction relating to the use and occupancy of the former matrimonial home is found in s 114 (1)(f) of the Family Law Act 1975 (Cth) (“the Act”) and such an order can be made if it is considered ‘proper’ to do so: see Davis & Davis (1976) FLC 90-062 at 75,309. Section 114 of the Act relevantly provides that:(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(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:…(f)an injunction relating to the use or occupancy of the matrimonial home.…(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate. In my view, it is appropriate for the Court to consider an application for orders for the exclusive occupation of a property in two stages. The first stage involves considering whether the circumstances of the parties are such that an order for exclusive occupation is necessary. If the answer to that first question is in the affirmative, the second question involves considering which party should have the right of exclusive occupation. In respect to that first stage, I am bound by a comprehensive analysis of this issue undertaken by the Full Court in S & S [2002] FamCA 59. In that case, the Full Court (per Kay, Holden and Monteith JJ), after discussing several Australian and United Kingdom authorities, said: 38. An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:"It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…" 39. Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788. 40. There are no words of limitation in s 114 other than the grant of the injunction must be "proper". But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.

Decision

Reasons for decision

In considering this issue, I respectfully agree with the submission of counsel for the wife that the responsibility for undertaking the repairs should be allocated to that party who is the beneficiary of the order for exclusive occupation. In circumstances where, for the reasons which I have explained, I am satisfied that the wife should be empowered to arrange and oversee those renovations. I am further satisfied that the orders proposed by the wife are appropriate, just and convenient for that to occur. Specifically, the orders will require that any funds provided to the wife pursuant to the orders made in these interim proceedings will be required to be spent on those renovations. CONCLUSION Accordingly, I am satisfied that it is just and convenient to make proposed orders 2 through to 8, inclusive and proposed order 11 of the interim orders sought by the wife in her Application in a Case filed on 7 April 2021 save to the extent that the wife did not oppose proposed order 8 being varied such that the parties jointly be restrained from selling, further encumbering or drawing down further on any loan facility secured by mortgage against the Suburb C property or the Suburb J or otherwise dealing with the Suburb C and the Suburb J. This will ensure that the real property of the parties cannot be sold or encumbered without the consent of both parties or an order of the Court. I further propose to restrict the sum potentially payable by the husband to the amount which he has received from the Owners Corporation pursuant to the 2019 Deed which I understand to be the sum of $251,578 but which may now be a lesser sum as a result of some of the funds having been applied to the partial repair work which has already been undertaken.

Ratio Decidendi

Legal Principle Established

In respect to the second stage, in Jyotisha & Jyotisha [2016] FamCA 738 at [15], Hogan J said:[15] It is clear the Court has power to make orders as sought by the parties, provided that such order is considered proper in the circumstances of the case. It is also clear that authority establishes that: …in determining the manner in which a court will exercise its discretionary power [to make an order for one or other of the parties to have exclusive occupation of the former matrimonial home], relief should not depend merely on the balance of convenience of hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought. (Citations omitted) (Original emphasis) CONSIDERATION Nature of interim proceedings These are interim proceedings and, accordingly, unless agreed or objectively verifiable, it is not possible to resolve factual controversies between the parties. In that respect, in Iphostrou & Iphostrou [2011] FamCA 20, Cronin J said at [44]: In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction. Similarly, in Acton & Burton [2015] FamCA 469, Hogan J said at [26]: The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them… In this matter the following facts are agreed or verifiable. In 1974, the wife was born. She is currently aged 46 years. In 1984, the husband was born. He is currently aged 36 years. In June 2012, the parties commenced cohabitation. In 2013, the parties’ son, Z, was born. In 2014, the parties married in Sydney. In October 2014, the parties moved into the Suburb C property. The property is in the sole name of the husband. In 2015, the parties’ daughter, Y, was born. The parties continued to live in the Suburb C property until they separated on or about 14 April 2018 at which time the husband moved to Suburb N. The wife continues to reside in the Suburb C property with the parties’ two (2) children. On or about 27 November 2015, the parties purchased the Suburb J in the sole name of the wife. On 7 February 2017, the Suburb C property was damaged by stormwater after a tradesperson left an assembly manual in the gutter of the roofing to the building. The Owners Corporation of the Suburb C unit block successfully made an insurance claim to L Ltd in respect to the damage. By Deed of Settlement and Release dated September 2019, the husband entered into an Agreement with the Owners Corporation. The recitals to the deed are as follows:A. The Owners Corporation is the registered owner of the common property located at B Street Suburb C NSW (“Property”).B. The Lot Owner is the registered owner of Lot… in the Property.C. On or about 7 February 2017, a storm event occurred resulting in damage to lot property within Lot …(“Lot Property Damage”) and resulting in damage to common property within Lot … (“Common Property Damage”).D. The Owners Corporation made an insurance claim to L Ltd (“the Insurer”) in relation to the Lot Property Damage and Common Property Damage damaged resulting from the storm (“Claim No. ...”).E. The Insurer assessed the claim and obtained quotation from V Pty Ltd.F. The Lot Owner raised concerns that the work in the quotation from V Pty Ltd was not adequate.G. The Insurer accepted a second claim for additional electrical repairs, wall lining repairs, repairs to the external glazing façade (“Claim No. ...”).H. The Lot Property Damage and Common Property Damage is set out in a report by Mr S of T Pty Ltd dated 9 March 2018 annexed to this Deed and marked “Annexure A” (“T Pty Ltd Report”).I. The Common Property Damage is referred to at paragraphs 26, 27 and 28 on page 9 of the T Pty Ltd Report under the headings “Doors” and “External Glazing Façade”.J. The Insurer obtained a further quotation from V Pty Ltd dated 26 June 2018 in the sum of $271,524.00 to repair the Lot Property Damage and Common Property Damage relating to Claim No. ... and Claim No. .... A copy of the quotation is annexed to this Deed and marked “Annexure B” (“V Pty Ltd Quotation”).K. The Lot Owner obtained a quotation from P Pty Ltd in the sum of $300,783.40 to repair the Lot Property Damage and Common Property Damage relating to Claim No. ... and Claim No. .... A copy of the quotation is annexed to this Deed and marked “Annexure C” (“P Pty Ltd Quotation”).L. The Insurer has assessed the work required in relation to Claim No. ... in the sum of $247,820.00.M. The Insurer has assessed the work required in relation to Claim No. ... in the sum of $22,704.00.N. The Insurer has agreed to pay the total amount of $270,524.00 to the Owners Corporation as a lump-sum payment on a cash settlement basis.O. There has been difficulty obtaining access to Lot … for the purpose of quoting on the External Glazing Façade and to rectify the Lot Property Damage and Common Property Damage.P. The parties acknowledge that the total amount of $270,524.00 includes a provisional sum of $50,000.00 for External Glazing Façade work which is Common Property Damage and includes other provisional sums as set out in the V Pty Ltd Quotation.Q. The Lot Owner agreed to pay the Owners Corporation’s legal costs in relation to this matter because such costs were incurred due to the Lot Owner demanding that its preferred contractor, P Pty Ltd, undertake the work.R. Without admission of liability, the Parties have agreed to resolve the Claim in accordance with the terms of this Deed.