DURNIN & DURNIN

[2019] FamCA 253

FAMILY COURT OF AUSTRALIA

DURNIN & DURNIN [2019] FamCA 253

FAMILY LAW – PROPERTY – Exclusive occupation of former matrimonial home.

Family Law Act 1975 (Cth) s 114(1)(f)

Davis & Davis (1976) FLC 90-062
Fedele & Fedele (1986) FLC 91-744
Price & Price (Unreported, Family Court of Australia, Lindenmayer J, 2 July 1982)

APPLICANT: Ms Durnin

RESPONDENT: Mr Durnin

FILE NUMBER: SYC 301 of 2019

ORDERS MADE: 6 March 2019

DATE DELIVERED: 23 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 6 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Apelbaum

SOLICITOR FOR THE RESPONDENT: O'Sullivan Legal

Orders made 6 march 2019

1. BY CONSENT orders be made in accordance with the Minute of Consent Orders filed in Court today, signed by the parents and by me and placed with the Court papers as set out hereunder:

   BY CONSENT IT IS ORDERED

   1.In these Orders, unless the context otherwise requires:

   1.1.“Act” means the Family Law Act (Cth) 1975;

   1.2.“Child” means X, born in 2013;

   1.3.“Furniture and Effects” means the items of furniture, effects and contents at the Suburb B Property, excluding each party’s personal effects;

   1.4.“Husband/Father” means Mr Durnin, born in 1969;

   1.5.“Mortgage” means the mortgage Commonwealth Bank of Australia secured by the Suburb B Property, being mortgage registered number …44;

   1.6.“School” means the school or day care at which the Child attends from time to time and includes any preschool or day care;

   1.7.“School Term” means the dates of each term as determined by the School;

   1.8.“Suburb B Property” means the property at Street D, Suburb B in the State of New South Wales and being the whole of the land in Folio Identifier …  and registered in the name of Mr Durnin; and

   1.9.“Wife/Mother” means Ms Durnin, born in 1972.

   PARENTING

   On an Interim basis, pending further Order:

   2.The Parties have equal shared parental responsibility for the Child.

   3.The Parties consult with each other about major long-term issues in relation to the Child and make a genuine effort to come to a joint decision about such issues, including issues about:

   3.1.the Child’s education, including choice of school (both current and future);

   3.2.the Child’s religious and cultural upbringing;

   3.3.the Child’s health;

   3.4.changes to the Child’s living arrangement that make it significantly more difficult for the Child to live with or spend time with the other party.

   4.The Mother and Father each have sole parental responsibility for making decisions about the day to day care of the Child, whenever the Child is in their care.

   5.The Child live with the Mother.

   6.During the School Term, the Child spend time with the Father on a two-week alternating cycle as follows:

   Week 1

   6.1.from the conclusion of School (or 3.00 pm if not a School day) on Wednesday to the commencement of School (or 9.00 am if not a School day) on Thursday; and

   6.2.from 8.30 am to 12 noon Sunday;

   Week 2

   6.3.from the conclusion of School on (or 3.00 pm if not a School day) on Wednesday to the commencement of School (or 9.00 am if not a School day) on Thursday;

   7.During all School Holiday periods the Child spend time with the Father for half each School Holiday as agreed and, failing agreement:

   7.1.for the first half of each School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the middle day of the School Holiday period; and

   7.2.for the second half of each School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at 12.30pm on the middle day of the School Holiday period and to conclude at the commencement of the School Term.

   8.Notwithstanding any other order to the contrary:

   8.1.during the Christmas School Holiday period, the Child spend time with the Father as agreed, and failing agreement, as follows:

   8.1.1.from midday on 25 December until 9:00am on 26 December in each year ending in an even number; and

   8.1.2.from 4:00pm on 24 December until midday on 25 December in each year ending in an odd number.

   8.2.during the Christmas School Holiday period, the Child spend time with the Mother as agreed, and failing agreement, as follows:

   8.2.1.from midday on 25 December until 9:00am on 26 December in each year ending in an odd number; and

   8.2.2.from 4:00pm on 24 December until midday on 25 December in each year ending in an even number.

   8.3.during the School Holiday period in which Easter falls, the Child spend time with the parent that does not otherwise have the care of the Child, on Easter Sunday for 4 hours as agreed and, failing agreement, between 1.00pm and 5.00pm.

   9.On the Child’s birthday, the Child spend time with the parent that does not otherwise have care of the Child, for at least two hours as agreed and, failing agreement:

   9.1.from 2.00pm to 4.00pm if the day is not a School day; and

   9.2.from after School to 6.00pm if the day is a School day.

   10.On the Mother’s birthday, if the Child is not otherwise in the Mother’s care, the Child spend at least 3 hours with the Mother as agreed and, failing agreement:

   10.1.from 9:00am to 12 midday if the day is not a School day; and

   10.2.from after School to 7:00pm if the day is a School day.

   11.On the Father’s birthday, if the Child is not otherwise in the Father’s care, the Child spend at least 3 hours with the Father as agreed and, failing agreement:

   11.1.from 9:00am to 12 midday if the day is not a School day; and

   11.2.from after school to 7:00pm if the day is a School day.

   12.For the purpose of Orders 6 to 11:

   12.1.when the commencement of a care period falls on a School day, the Father collect the Child from School;

   12.2.when the conclusion of a care period falls on a School day, the Father deliver the Child to School; and

   12.3.when the commencement of a care period falls on a day which is not a School day, the Father will collect the Child from the Mother’s residence at the commencement of the care period and return the Child to the Mother’s residence at the conclusion of the care period.

   13.Each parent each keep the other informed of their current residential address and provide the other with written notice of any change in their residential address, e-mail address and telephone numbers, including mobile and landline telephone numbers, within 48 hours of any such change.

   14.If there is any medical emergency involving the Child, including but not limited to serious illness, accident or hospitalisation, the party with the care of the Child must:

   14.1.immediately contact the other parent; and

   14.2.as soon as practicable, provide the other parent all documentation and information in their possession regarding the incident.  

   15.The parties agree to attend family therapy with the L Service or as otherwise agreed and that such therapy is non-reportable.

2. That the wife be permitted to have exclusive occupation of the former matrimonial home at Suburb B as from 8 April 2019.

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 Durnin & Durnin 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 SYDNEY

FILE NUMBER: SYC 301 of 2019

Ms Durnin

Applicant

And

Mr Durnin

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Durnin (“the wife”) and Mr Durnin (“the husband”) met in late 2009, commenced cohabiting in 2011 and married in 2012.  They separated in 2019.  There is one child of the marriage, X born in 2013.

2. The wife left the former matrimonial home at Suburb B on 6 January 2019 taking the child with her.  She stayed with her cousin in Town A for a week and then returned to Suburb B living in temporary Airbnb accommodation with the child.  She sought an order that she be permitted to have exclusive occupation of the former matrimonial home. 

3. The husband has remained living in the former matrimonial home since separation and opposes the exclusive occupation order sought by the wife. 

4. I determined that application on an interim basis on 6 March 2019 making an order that the wife be permitted to have exclusive occupation of the former matrimonial home at Suburb B as from 8 April 2019.  I informed the parties that because I considered there to be some urgency about the wife’s application I would make orders and reserve reasons for judgment.  These are the reasons for judgment in relation to that order.

5. On 6 March 2019 time did not permit the making of detailed orders to facilitate the wife’s exclusive occupation of the home.  Such orders were made by consent on 18 March 2019 and were as follows:

   1.BY CONSENT orders be made in accordance with the Minute of Order signed by the legal representatives for the parties and by me and placed with the Court papers as set out hereunder:

   1.Pending further Order the Wife be granted sole occupation of the property known as [D Street, Suburb B] (“[Suburb B] Property”), as and from 8 April 2019.

   2.The Husband notify the Wife in writing as soon as practicable if he intends to vacate the [Suburb B] Property prior to 8 April 2019.

   3.The Husband leave all furniture and household appliances in the [Suburb B] Property.

   4.The Husband be permitted only to remove his personal effects and toys he and [X] play together with.

Background

1. The wife alleges a long history of family violence perpetrated against her by the husband including in the presence of the child.  Amongst the allegations the wife said that on a day in September 2018 or early the following day there was an argument.  She said that the husband grabbed her by her arms and dragged her across their bedroom.  The wife called the police and a provisional Apprehended Domestic Violence Order (“ADVO”) issued in September 2018 for the protection of the wife and the child.  The husband was charged with common assault.  This matter was listed before the Suburb H Local Court in October 2018 and was adjourned to January 2019.  On that occasion a final ADVO issued to protect the wife and child for two years.  The husband entered a guilty plea, was placed on a good behaviour bond and no conviction was recorded.

2. The wife undertook a genetic test in 2006 which predicted that she would develop a neurological disease.  The wife has been attending a neurological disease clinic at Hospital J since 2007.

3. In 2015 the wife first experienced symptoms of a neurological disease, including loss of muscular control, decreased co-ordination, difficulty walking, jerky movements of arms/legs, speech difficulties, fatigue and an inability to undertake multi tasks.

4. In July 2017 Dr G, the wife’s specialist Neurologist, diagnosed the wife as having a permanent disability and no longer capable of paid employment.  The wife has not worked in such employment since 2012, early in her pregnancy with X.

5. Dr G described a neurological disease as “a permanent, progressive, neurodegenerative disorder … (which causes) … cognitive deficit”.

6. In January 2019 Dr K diagnosed the wife as having early stage a neurological disease with impairment in her motor function.  Dr K said that as part of the wife’s motor impairment, she has had involuntary movements which have interfered with her activities of daily living to a certain degree.

7. In 2017 the wife received a total and permanent disability payment of $740,000.

8. In April 2017 the husband was admitted to hospital with a severe illness.  He was off work for seven months and underwent chemotherapy.  He has been diagnosed with various medical conditions.  The husband said that these conditions affect his lifestyle in mostly minor ways if there is no flare-up of symptoms.

The wife’s case  

1. The wife said that she is familiar with the former matrimonial home which makes it easier for her to carry out domestic tasks.  She is confident about using the oven and the stove.  She said that the ensuite bathroom is easy for her to access.  The wife said that she has a lot of friendly neighbours in nearby apartments who have assisted her in entertaining X and giving her respite care for him at the time that the husband was hospitalised.  She said that the child would benefit from living in the family home with her.  She said that he is familiar with it and has many friends living nearby.

The husband’s case

1. The husband said that the wife has the financial capacity to reaccommodate herself in the Suburb B area.  He said that, in fact, both parties and the child could live together in the former matrimonial home because the design is such that they could each be accommodated in a separate and distinct area.

2. The wife said that such a proposal is impracticable.  She said that she is fearful of the husband because of family violence and concerned about the impact which she said the husband’s abuse has had on the child.  In any event, she pointed to the ADVO and the restraints attached thereto.  She said that she found it very stressful to live with the husband and the tension caused makes it very difficult for her to manage the symptoms of her a neurological disease.

3. The husband said that if the wife does not wish to live in the former matrimonial home as proposed by him then she has the financial capacity to reaccommodate herself in the Suburb B area.  He said that a problem for the wife living at the Suburb B property is that the property needs maintenance to the floor, walls, bathroom and some rust prevention which would require the occupant of the property to vacate it.

The applicable law

1. Subsection 114(1)(f) of the Family Law Act 1975 (Cth) (“the Act”) provides in effect that the Court may make such order or grant such injunction as it considers proper with respect to the use or occupancy of the matrimonial home.

2. The Full Court has indicated since the very early case of Davis & Davis (1976) FLC 90-062 that the criteria for the exercise of this power are simply that the Court may make such order as it thinks proper. In Fedele & Fedele (1986) FLC 91-744 the Full Court emphasised that the considerations that can be found in cases concerning the exercise of discretion for the making of an exclusive occupation order are neither fixed nor exhaustive, and that ultimately each case must be decided on its own merits.

3. In the unreported decision of Price & Price (Unreported, Family Court of Australia, 12 July 1982), Lindenmayer J said as follows:

   In my opinion, Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders.  It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home.  All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.

4. Balance of convenience matters are relevant although not determinative.

Discussion and Conclusion

1. In all the circumstances, in my view, it would not be reasonable, sensible or practicable for these parties to live in the former matrimonial home divided on the basis as proposed by the husband.

2. As indicated above, the husband said that the wife would be able to rent a similar home for herself in the Suburb B area.  I accept that it is more probable than not that this would be true.  The difficulty, however, from the wife’s point of view is that, like the husband, for her and the child the former matrimonial home represents their home.  It is the home with which they are familiar.  In my view, the fact that the wife suffers from the symptoms of a neurological disease has a real significance.  It appears that her symptoms are exacerbated by stress.  She said that the least stressful option for her is to be living in her own home, the facilities and services of which she is very familiar.  I accept this.  In my view, it would be a hardship for her to be living in a home without such comfort and familiarity.

3. On the other hand, I am not persuaded that any particular hardship would flow to the husband from either having to rent a similar property in the area or, as suggested might be an option, moving to the parties’ holiday property in Region F.  If the husband did not wish to undertake such a move, I am more than satisfied that he has ample funds from which suitable accommodation could be provided for himself.

4. In all the circumstances and taking account of comparative hardship, in my view, the order which is proper is that which would permit the wife and child to be living in the former matrimonial home to the exclusion of the husband.     

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered 23 April 2019.

Associate: 

Date:  23 April 2019