Gardiner and Robbins

[2017] FamCA 689

FAMILY COURT OF AUSTRALIA

GARDINER & ROBBINS [2017] FamCA 689

FAMILY LAW – INJUNCTIONS – exclusive occupancy of a home for the purposes of a sale.

Family Law Act 1975 (Cth)

Mikele and Mikele [2008] FamCA 651
S and S [2002] FamCA 59

APPLICANT: Ms Gardiner

RESPONDENT: Mr Robbins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 3313 of 2015

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clark

SOLICITOR FOR THE APPLICANT: Clark Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Serra

SOLICITOR FOR THE RESPONDENT: Kerr And Thomas

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dandenong Family Lawyers

Orders

1. That BY CONSENT there be orders in terms of paragraphs 1-4 and paragraphs 6 and 7 of the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That from 4.00pm on 4 October 2017, the husband have sole and exclusive occupation of the real property at B Street, Suburb C for the purposes of its sale and thereafter, the wife is restrained from injunction from being within 100 metres of the property.

4. That all outstanding applications for property matters are dismissed.

5. That the costs of both parties are reserved to the trial.

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 Gardiner & Robbins 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 MELBOURNE

FILE NUMBER: DGC 3313  of 2015

Ms Gardiner

Applicant

And

Mr Robbins

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons concern a discrete issue about which the parties could not reach agreement.  Unfortunately, to give context to these reasons as well as justifying the exercise of power in making the orders, some background is necessary.

2. Mr Robbins (“the husband”) married Ms Gardiner (“the wife”) in 2009.  From their union, their child was born in 2010.

3. The parties’ separation occurred in October 2015 whereupon an interim intervention order was made and around the same time, the wife filed an application seeking parenting orders.  The husband some months later filed a response seeking not just parenting orders but also financial orders. 

4. The proceedings just mentioned were listed in the Federal Circuit Court and a number of hearings followed.

5. In relation to parenting matters, I was not asked to deal with any issue as there was already a pending interim hearing before the Senior Registrar only some days away.  Unfortunately, the parties had not come to court to deal with that issue.

6. There were three issues in dispute for the court’s determination:

   (a)the sale of the parties’ home at B Street, Suburb C;

   (b)upon the sale, a payment from the proceeds of $70,000 to the husband; and

   (c)the discharge of a spousal maintenance order made by Judge Small on 6 October 2016.

7. All matters were resolved between the parties save for one to which I refer below.  The controversial issue relates to the question of whether, in preparation for the sale of the home, the husband should have exclusive occupancy and control.  To a very large degree, what underpins the determination, is the evidence that was placed before the court about the matters that were ultimately the subject of agreement.  It is hard to see how there could have been any controversy about those matters in any event.

8. On 6 October 2016, after a contested hearing at which all parties were represented, Judge Small of the Federal Circuit Court made the following order:

   [3]Until the date of settlement (sic) of the sale of the property situate at and known as B Street, Suburb C, in the state of Victoria;

   (a)the husband shall pay to the wife the sum of $150 per week by way of interim spousal maintenance for the wife; and

   (b) any monies paid by the husband by way of mortgage payments, insurance and outgoings of the property shall be characterised as interim spousal maintenance for the wife.

9. The next order that Judge Small made dismissed all outstanding interim applications and her Honour otherwise adjourned the proceedings to this court.

10. It is unfortunate that this court does not have the reasons for that judgment and as none of the practitioners were present at the time, it was a little difficult to understand other than by inference, the basis of the orders.

11. The inference I have drawn is that on 6 October 2016, the wife was living in the home.  It is a property subject to a mortgage.

12. It can be seen from [3] above, her Honour anticipated that the home was to be sold.  In addition, the spousal maintenance was of an interim nature and only to continue until the settlement of the sale of the property.  [3](b) above is a curious order and the exercise of power may be questionable but its intention was clear.  If the husband paid mortgage payments, they were somehow to be characterised as interim spousal maintenance.

13. Absent the reasoning behind the orders, it is a little difficult to understand how her Honour accepted that the wife met the threshold for spousal maintenance but her Honour must have been so satisfied because the order was made.  The other inference that must be drawn is that her Honour was of the view that the wife could not adequately support herself until such time as she received some (or all) of the proceeds of the sale of the home. 

14. One controversy was that sometime around the separation in 2015, the wife was entitled to money arising out of a “Workcover” claim.  The wife was obliged by an order of Judge Small made on 2 February 2016 to provide details.  The wife’s financial statement filed in September 2016 which seems to have been before Judge Small, made no reference to the fact that a large amount of money had actually been received by the wife.  It took a subpoena by the husband to the wife’s bank to show that money had been transferred out of her name into that of an adult daughter from a previous relationship.  That all gave rise to the question of whether Judge Small would have made the spousal maintenance order had her Honour known of the existence of that money.  One might conclude that as the wife was represented by counsel briefed by her solicitors who drafted the financial statement, they were not aware of the details.

15. Most important of all however is the fact that the clear intention of the parties in October 2016 was for the home to be sold.  It transpires that subsequent to the order of 6 October 2016, the wife moved out of the home and it remained occupied by the wife’s two adult children from her former relationship.  Both of those children who are in their 20s were described as students.  The wife is said to be living in a “safe house”.  No rental is paid by the adult children.  It was the wife’s position that because her daughters were still in the home, there should not be an order for exclusive occupancy in favour of the husband for the purposes of the new agreed sale. 

16. The sale itself has been difficult to implement. The order of Judge Small indicates that her Honour anticipated the sale would happen in the foreseeable future because of the opening words of [3].

17. In March 2017, the then appointed estate agent received an offer of $840,000 and the then solicitor for the wife indicated difficulty in getting instructions but said he had an appointment with the wife on the following day.  The matter was taken no further.  Some days later, the appointed agent introduced a purchaser who was prepared to pay $850,000, that is, $10,000 higher than the offer a week before.  As that offer was not accepted by the wife, it was then withdrawn.

18. The wife’s evidence for the purposes of this hearing, was extremely vague.  The husband attached to his affidavit a chain of correspondence including a long email from the agent in early 2017 who complained that there were difficulties getting access to the property and getting cooperation from the wife.  All the wife said in respect of that evidence was that she “disagreed”.  Her evidence was that she told the agent that he was no longer acting for her.  I have great difficulty with that in the context of the agent being jointly appointed.  His relationship ceased because the police had spoken to him complaining that the wife had said that he was harassing her.  But, since that termination, the wife has done nothing about promoting a sale.  It was the husband who activated the current proceedings to seek a sale and it was only upon the wife filing a response that it became clear that she agreed to a sale.  But that must also have been the position in October 2016 as is evident from paragraph [3] of the orders of Judge Small.

19. To add to the unusual circumstances, it transpires that the wife has been paying half of the weekly mortgage commitment on the home which meant that she was committed to $140 per week.  The husband was paying $150 per week by way of spousal maintenance to her under the order of Judge Small.  The logic of all of that is hard to follow.  If the wife satisfied the Federal Circuit Court that she could not adequately support herself without maintenance, why would the court not have made an order that the husband pay all of the mortgage as would seem to be the intention behind [3](b)?

20. The whole situation was unsatisfactory and no-one could explain it.  The wife’s position was that the parties should “reach agreement” about the appointment of an agent and about the details of the sale.  That could not be justified having regard to the lack of cooperation for the best part of 11 months.  The husband’s position was that he wanted to be appointed as trustee for sale.  It was only in submissions that it became evident that the adult children of the wife, to whom I have already referred, were still living in the home. Counsel for the husband indicated that his client understood that the children had vacated the property.  The wife said otherwise.

21. The contentious orders sought by the husband related to his having responsibility for the sale.  His position was that having regard to what was asserted by the previous agent as to the difficulties created by the wife, combined with the fact that she was no longer living in the property but had allowed the adult children to remain there without them contributing towards their accommodation, justified an order that he have control to ensure that the sale occurred efficaciously.

22. In proceedings of the kind referred to in paragraph (e) in the definition of matrimonial cause in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”), 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 an injunction relating to the use or occupancy of the matrimonial home.

23. The relevant criteria to be considered in such a case can be found in the Full Court decision of S and S [2002] FamCA 59 which referred to such earlier decisions as Davis v Davis (1976) FLC 90-062, Page v Page (1981) FLC 91-025 and Seiling v Seiling (1979) FLC 90-627.

24. Those decisions confirm that in respect of accommodation which affects both spouses, the court should be cautious about excluding a party.  This is not a case in which it is contemplated that it would not be reasonable or sensible for the parties to live together.  The authorities refer to the discretionary power arising from the word “proper” but that the orders should not be exercised lightly.  There are clearly rights of both owners under consideration but the husband must point to a basis upon which an owner is excluded from the property.

25. Here, the wife has already vacated the property and has indicated that she does not intend to return.  In addition, the evidence supports a conclusion that the wife has not been cooperative in respect of the sale.  In addition to the matters to which I have already referred, counsel for the husband observed after the case had begun that the first time his client had heard that the wife was agreeable to an auction was in the running of the hearing.  That can also be seen from the way in which the proposed orders of the wife had been drawn.  She wanted “agreement” in circumstances where there had been very little (if any) evidence of cooperation between the parties.  Indeed, one clear inference to be drawn from the conduct of the wife is that she had not been proactive in respect of the sale for whatever reason.

26. As I observed in Mikele and Mikele [2008] FamCA 651, the exercise of discretion must be exercised judicially. In other words, there must be some basis upon which the exercise of discretion is within the parameters of what is contemplated by the law. It is not unfettered.

27. There is no disadvantage to the wife here in such an order because she will not return to live there.  One could conclude that if she has any property there, it can be removed to where she is living or intending to live. 

28. It was submitted on behalf of the wife that the two adult children, as students, had to get alternate accommodation and they were facing university exam periods.  That argument must be given little weight because on any view, these children were to vacate the property at some stage over the last 11 months had it been sold (as it should have been earlier in 2017).  In addition, even if the property was put on the market for sale by auction immediately, it is conceivable that a buyer may be ready to take possession immediately.  No evidence of the wife supports an inference that agreement will be reached. 

29. Ultimately, the balance of convenience is what should determine what is proper here.  The adult children need to vacate the property so that there can be vacant possession and an expeditious sale.  The maintenance order is being discharged by agreement between the parties.  That is sensible having regard to the remarks I have earlier made.  The wife wanted until the settlement for the children to vacate but the difficulty with that is that having regard to what had occurred with the last agent, I have no confidence that the wife will be active in cooperation with any agent.  I acknowledge that the adult children have not been served with any proceedings nor have they contributed any affidavit material that might indicate what was being asserted on behalf of the wife by her solicitor.  However, as I observed at the time, if the wife makes no attempt to have the children leave the property, or, there is obstruction, the court has powers to deal with that both at final settlement level but also with use of Part VIIIAA.  I was assured that would not be necessary.

30. In my view, it is fair, just and proper that these children be given some four weeks to find alternative accommodation and to move on with their lives so that the parties can conclude the property proceedings. 

31. I have noted that the substantive property proceedings are included with the parenting proceeding for a first day directions hearing before Johns J in November.  The sad fact is that the parties have a very limited dispute over what will effectively be cash in the bank.  The superannuation entitlement might be a major financial resource of the parties but each faces a wait of the best part of 20 years before they can access it in terms of cash or other benefit.  These parties would do well to resolve the issue quickly. 

32. The initiating application of the wife indicated that she wanted 100 per cent of the net proceeds of the sale but her solicitor quite properly indicated that that would not be the position that she would be advocating at trial.  But, for so long as there is no amendment to that application, the prospect of any resolution is limited and the court can have no further role in endeavouring to conciliate any dispute between the parties.  These parties are bleeding economically because of the cost of the proceedings and the matter needs to be heard quickly.

33. Accordingly I make orders relating to the exclusive occupancy of the home.

I certify that the preceding Thirty-Three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 September 2017.

Associate: 

Date:  8 September 2017