Drury and Drury (No. 2)

[2008] FamCA 570

FAMILY COURT OF AUSTRALIA

DRURY & DRURY (NO. 2) [2008] FamCA 570

FAMILY LAW – PROPERTY – Interim

APPLICANT: MS DRURY

RESPONDENT: MR DRURY

FILE NUMBER: MLC 3298 of 2008

DATE DELIVERED: 3 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 3 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L. Colla

SOLICITOR FOR THE APPLICANT: Holt & McDonald

COUNSEL FOR THE RESPONDENT: Mr M.J. Wood

SOLICITOR FOR THE RESPONDENT: Rennick & Gaynor

Orders

1. That until further order the husband shall have the sole use and occupation of the property situate and known as E (“the [E] property”).

2. That until further order the wife shall have the sole use and occupation of the property situate at and known as M (“the [M] property”) subject to the rights of the current tenant.

3. That until further order the husband and the wife shall sign all documents and do all things necessary to cause L Pty Ltd or D Pty Ltd as trustee or otherwise to pay rates, taxes and apportionable outgoings with respect to the D property and the M property, and any removalist expenses arising out of the operation of paragraph 6 hereof.

4. That the husband and the wife shall forthwith sign all documents and do all things necessary to serve a Notice to Quit on the tenants at the M property to effect vacant possession thereof on or before the expiry of sixty days, or such lesser period as set out in the lease.

5. That from the monies held at the Sandhurst Trustee Limited by L Pty Ltd the sum of $10,000 shall be forthwith paid to each of the solicitors for the husband and the wife.

6. That the furniture and chattels at the E property shall be divided equally between the parties by agreement on or before 20 June 2008 and failing agreement by the wife preparing two lists of such furniture and chattels on or before 4 July 2008 and the husband choosing one of those lists for him to retain on or before 20 July 2008 in writing and failing the husband so choosing a list, the wife shall so choose.

7. That the wife shall collect the chattels to which she is entitled pursuant to paragraph 6 hereof on or before 3 August 1008.

8. That on or before 12 noon 7 June 2008 the husband shall make available for collection by the wife and/or her nominee at the garage door entrance of the E property the wife’s personal belongings as set out in Schedule “A” in reasonable order and condition.

9. That all extent applications shall be adjourned for further directions before the Registrar at the Conciliation Conference on 22 August 2008.

10. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

11. That my reasons for judgment given this day shall be transcribed and retained on the court file.

IT IS NOTED

1. That characterisation of the payments shall be reserved to the trial Judge.

2. That in the event that either the husband or the wife elect to use any part of the payment referred to in paragraph 5 herein to satisfy the payment of legal fees outstanding then that party shall notify the other in writing of the payment to their solicitor.

IT IS NOTED that publication of this judgment under the pseudonym Drury & Drury is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3298 of 2008

MS DRURY

Applicant

And

MR DRURY

Respondent

REASONS FOR JUDGMENT

1. These parties separated finally in January 2008 having been separated under the one roof before that.  There are a number of issues before me today.  The first relates to the sole use and occupation of the former matrimonial home in E.  The second relates to the issue of urgent spousal maintenance for the wife.  The third relates to a division of chattels in the former matrimonial home, and the fourth relates to what needs to be done in preparation for a conciliation conference. 

Sole Use

1. This was a long marriage of between 25 and 30 years.  The parties have built up an excellent portfolio of properties.  They are both attached to their home, which is understandable.  Each one dearly wants to be able to retain that home, and to live in it short term.  The husband's argument is that not only is he the one who is living in the home at the moment, and it took the wife some months after separation before she brought an application about it, but one of the adult children of the marriage is also living at the home with him.  In addition, he is a tradesman and has all his business tools there.  It is the husband’s company through which the parties have acquired these various assets and he wants to be able to continue with some form of building work, and to use the premises where his tools are housed. 

2. The wife's argument is that she has a profound emotional attachment to the home and she would hope that the parties’ adult son would in fact remain in the home if she moves back, and would offer some emotional support to her at a time that is very difficult and distressing for her. 

3. The question of sole use of a home is always a difficult one for the court, because naturally both people have an attachment to the property.  I can have no idea what will happen ultimately in relation to that property.  I can only do the best that I can with limited information at this point, but on the basis of the authorities I see no reason to upset the existing arrangement whereby the husband is living in the property. 

4. I see no greater claim of one party over the other to live in the property at this interim stage.  The wife however does need accommodation.  I have stated a number of times this morning it is important that each party is able to live in an appropriate and a dignified way pending the final hearing of the case.  I am not satisfied that the wife is being permitted to live in that way at the moment.  She is “squatting” with relatives.  That situation should be rectified. 

5. The wife has sought one of a number of investment properties that are currently tenanted.  It is the property at S.  Alternatively, she seeks the property at M.  The husband says that he would prefer she live in the property at H.  He says that he does not want to upset the long-standing tenants in the other properties.  In relation to the M property, he has been able to negotiate such a good rental, that it would be in the interests of the parties if that were retained. 

6. In the difficult circumstances of one party being able to remain in the home when the other cannot, it strikes me as just for the other party to be able to choose one of the parties’ various investment properties in which to live.  It may be necessary to upset a tenant, but that is a less significant concern than the concern to ensure a party to a very long marriage, is able to live appropriately pending the property settlement.  Accordingly, if it is the M property that the wife chooses, then that is the property I find she should be able to use until trial.  The tenant must be given 60 days’ notice.  It should be given forthwith, that is today.  Thereafter, the wife shall have the sole use of that property.

Spousal Maintenance

1. The wife seeks urgent spousal maintenance.  There is a factual dispute as to her current earnings and as to what she requires.  In the course of argument I made my view clear.  I apparently accord with the view counsel for the husband was going to urge: that it would be appropriate from the more than $500,000 that the parties have in a bank account, that each party obtains a relatively small sum of money to be characterised subsequently by the trial Judge.  It should be an amount that would cover the wife's needs until a little time beyond the upcoming Conciliation Conference. 

2. The sum of $5000 was initially proposed by Mr Wood for the husband.  Ultimately Ms Colla, for the wife said it should be $15,000.  I am satisfied that $10,000 would be appropriate.  That is not just because it is the halfway mark.  It is because it allows the sort of maintenance that the wife was seeking for the short-term, until soon after the Conciliation Conference.  If there is no agreement, she shall have support until the matter is heard.

Chattels

1. The wife says that she wants half the chattels in the home.  Naturally her concern is that she needs to furnish any property into which she is moving.  She should not have to use the $10,000 referred to above.  That is for her support.  Mr Wood says that he needs to take instructions about chattels.  I will enable him to do that.  It should be clear though that either the chattels will need to be divided, and/or some further monies will need to be made available so that furnishings can be bought.  That is not a matter of largesse on one party’s behalf.  It is simply to enable both parties to live in a furnished property. 

Conciliation Conference

1. The date of 22 August 2008 will be set for the Conciliation Conference. 

2. There is an issue as to whether valuations or market appraisals should be sought.  Generally, at this stage an appraisal would be sufficient.  The wife seeks sworn valuations, acknowledging the expense, but indicating through counsel that, given the husband is involved in the local building and real estate industry, she would not have confidence in market appraisals. 

3. In the ultimate what is important is that the parties be given the genuine opportunity to settle, to fully resolve their dispute, at the Conciliation Conference.  Given the dispute that I have witnessed today, between two people who have ample property to have sorted this out without court intervention, I am satisfied that the only way to give this case a proper chance of settling is to have sworn valuations.  That will remove suspicion.  Whether or not suspicion is justified, it is clearly a case where there is sufficient suspicion and ill-will, that the parties must be armed with the material they need for resolution.  That way, on the day of the Conciliation Conference, there need not be any argument as to whether or not the valuations are reasonable.  They will be sworn valuations.  The discussion as to how to distribute the assets can be the focus.

4. There is agreement that a capital gains tax assessment should be made.  That too is a good idea.  It will be very difficult to settle without having some indication as to what capital gains tax will be involved. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  3 June 2008