DOMENY & DOMENY

[2015] FamCA 246

FAMILY COURT OF AUSTRALIA

DOMENY & DOMENY [2015] FamCA 246

FAMILY LAW – PROPERTY – Interim application– Where the wife seeks orders for spouse maintenance, a lump sum payment and for sole occupancy of the matrimonial home – Where there are three children to the marriage – Where the wife currently resides with the children at her parent’s house – Where the husband submits that he owes significant debts and may have to sell the matrimonial home – Whether it is in the children’s best interests to return to the former matrimonial home – Where orders are made for the wife to have sole occupancy of the former matrimonial home.

Family Law Act 1975 (Cth) s 77

APPLICANT: Ms Domeny

RESPONDENT: Mr Domeny

FILE NUMBER: SYC 272 of 2015

DATE DELIVERED: 9 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 9 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Tilley Family Law & Mediation

SOLICITOR FOR THE RESPONDENT: Meridian Legal

Orders

1. That orders are made in accordance with paragraphs 2 and 3 of the interim orders sought set out in the Wife’s Initiating Application filed 19 January 2015 and noting that paragraph 2 is pending further order of the Court, set out herein:

   2.An Order that the Wife be granted exclusive occupancy of the property situate at and known as B Street, C Town (“the property”).

   3.        Orders to give effect to Order 2 as follows:

   3.1The Husband vacate the property within 7 days of the date of Order.

   3.2The Husband leave all of the furniture, household effects and contents of the home in place upon vacating the property.

2. That pending further order of the Court and by way of urgent maintenance pursuant to s 77 of the Family Law Act 1975 (Cth) the Respondent Husband is to pay to the Applicant Wife a sum of $600 per week. Such payment is to commence on 10 February 2015.

3. That the balance of the interim orders sought in the Initiating Application are stood over to the Judicial Duty List before a Registrar at 9.30 am on 27 April 2015 and later before a Judge for a possible interim hearing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 272 of 2015

Ms Domeny

Applicant

And

Mr Domeny

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by Ms Domeny (“the wife”), seeking a number of orders, including exclusive occupancy of the former matrimonial home (“the C Town property”), spousal maintenance in the sum of $600 per week and a lump sum payment of $50 000.  The application was filed on 19 January 2015 and this is the first return date.  On 9 February 2015, Mr Domeny (“the husband”) filed a response, an affidavit by himself and a short affidavit by his fellow director and shareholder in one of his companies.  The primary position of the husband is that he wishes these proceedings to be adjourned today for a period of four weeks, so as to enable him to put on further evidence as to his financial position. 

2. The husband has, however, accepted that it would be appropriate, pending further order of the court and by way of urgent maintenance, to pay to the wife $600 per week starting tomorrow.  There was no real opposition to the adjournment, although the solicitor for the wife would have preferred to have dealt with the application for a lump sum payment today.  The real issue is whether or not the order for sole occupation of the C Town property should be made today, as sought by the wife, or should be adjourned, as sought by the husband.  The primary reason the husband gives for the order not being made today is that it is his  application that as an interim order, the C Town property be sold.

3. The C Town property was extensively renovated in 2013 and the parties moved back into it in August 2013.  It is the husband’s position that he has a number of liabilities arising from the relationship with his parents, relationship with his company and creditors of his relating to the renovation of C Town, and that he is unable to pay, other than by way of a sale of assets.  The husband submits that it will be necessary, as an interim measure, to sell the C Town property for the purpose of repaying those debts. 

4. The husband is a director and shareholder of a company called D Pty Ltd. The husband’s co-shareholder and director has sworn an affidavit in which he confirms that in 2014 the husband took out a director’s loan in the sum of $775 000.  For the year ending June 2014, that company had unappropriated profits in excess of $1 million, but the other director has deposed that the husband’s share of the profit will not be available until the loan has been repaid in full.  He also alleges that the husband owes the company $59 000 for purchases made in respect of the C Town property renovation and further, that the husband personally owes him the sum of $163 000 for joinery work undertaken at those premises.

5. In addition, the husband asserts that he owes his father $899 000 and a number of other tradesmen in various amounts, for work carried out in relation to the C Town property.  If it is established that these are genuine debts, in respect of which the creditors are properly pressing for payment, then the husband may have a forceful case for the sale of the matrimonial home to enable those debts to be paid.  On the other hand, the wife does not accept that position and although is not in a position to come to a view about it, may wish to dispute some or all aspects of them. Certainly, she would be entitled to investigate them. 

6. It may well be, and I suspect it is more probable than not, that the determination of those issues will not be able to be made on an interim hearing, but might need to await a final hearing. That is something that will need to be determined in due course.  The issue is whether or not an order for sole occupation will be made today. 

7. The parties separated some five months ago and the wife moved from the C Town property to her parents’ property at Suburb E.  The wife’s parents live there, sleeping in separate rooms.  At times the wife’s brother has lived there.  He has now left, but now the wife’s sister lives there. 

8. There are three children of the marriage. The three children sleep in one room and the wife sometimes sleeps with them or sometimes on the lounge.  The children are aged five, four and two years old.  The eldest attends school at C Town and the second eldest attends pre-school in C Town, both of which obviously are much closer to the matrimonial home than the property in Suburb E.  The wife gives evidence, which is not accepted by the husband, that the children are having difficulties living in Suburb E and are stressed and want to return to the C Town property.  The wife has referred to a report from Macquarie University as to the stress the children are under, but given its date and its form, I do not accord it any particular weight at all.

9. The position of the husband is somewhat illogical.  His primary position is that the C Town property will have to be sold sooner, rather than later, and therefore, it would not be in the children’s best interests for them to move back into the C Town property because he says they are likely to become settled there and will have to move again.  There is some force in that argument but it depends upon the premise, of course, that the house will need to be sold sooner, rather than later.  That, at present, is an unknown.  The husband’s second submission, accepting it may very well be a fallback position, is that the wife and the children are free to return to live in the C Town property with him.

10. The wife has deposed to events which, if accepted at a final hearing, would indicate that that would not be a good idea and not in the children’s interests.  This is an interim hearing and I am not in a position to, and will not be making any findings as to whether these events have occurred or not.  They remain simply allegations, but it indicates at least that there are some difficulties in the relationship that are likely to give rise to repeated allegations if the parties are living in the same house.  It is to be recognised that the parties separated, for whatever reasons they did, and have chosen to live apart for the last five months.

11. I cannot see how it would assist either of them, in the present stressful circumstances, given their attitudes as to the sale of the house, for the parties to be living in the same premises.  In any event, that submission is somewhat inconsistent with the notion that the children should not move back into the house because it needs to be sold shortly. 

12. The wife gives evidence that the husband’s parents own a five bedroom house in C Town in which only they reside and that the husband has stayed there previously, as has the whole family.  Counsel for the husband asserts that staying there is no longer an option because the husband is now estranged from his parents in relation to the debt he owes them and the break-up of his marriage. 

13. There is no suggestion that the husband will provide either the bond necessary or the rent necessary for the wife to rent some premises in which the children can reside.  Taking all these matters into account, it seems to me that all other things being equal, it would be desirable and in the children’s interests to live in the C Town property and it is desirable, in the interests of matrimonial harmony, and particularly the children, avoiding matrimonial disharmony in front of them, that the husband not be there at the same time.  The countervailing issue is whether it would not be in their best interests to move back in and have the property sold shortly, which would involve them moving yet again and possibly back to the wife’s parent’s property at Suburb E. 

14. Taking all these things into consideration, I am of the view that the order for sole occupation should be made. Such an order would alleviate the residential difficulties faced by the wife and would be, in particular, in the best interests of the children.  The balance of the interim orders sought in the initiating application is stood over to the judicial duty list on 27 April 2015 at 9.30 am.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 February 2015.

Associate:

Date:  13 April 2015