Gillim & Gillim
[2019] FamCA 897
•28 November 2019
FAMILY COURT OF AUSTRALIA
| GILLIM & GILLIM | [2019] FamCA 897 |
| FAMILY LAW – PROPERTY – Where Application for Interim Property orders – Where consideration of applicable principles – Where appropriate to make orders for sale of investment and discharge of mortgages with remaining funds to be held pending further order. FAMILY LAW – INJUNCTIONS – SOLE USE AND OCCUPATION – Where consideration of applicable principles – Where proper for wife to have sole use and occupation of the former matrimonial home pending further order. |
| Family Law Act 1975 (Cth) s 114 |
| Davis & Davis (1976) FLC 90-062 Davis & Davis (1983) FLC 91-319 Harris & Harris (1993) FLC 92-378 Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 Mikele & Mikele [2008] FamCA 651 Plowmanv Plowman (1970) 16 FLR 447 S & S [2002] FamCA 59 Sieling v Sieling (1979) FLC 90-627 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Mr Gillim |
| RESPONDENT: | Ms Gillim |
| FILE NUMBER: | PAC | 2655 | of | 2014 |
| DATE DELIVERED: | 28 November 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21 October 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Belgrave Lawyers Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Farah Lawyers, Solicitors & Barristers |
Orders
That the husband vacate the former matrimonial home at 1 B Street, Suburb C within seven days from this date and thereafter remain away from and not enter upon the said property without the written consent of the wife.
That the husband be restrained from removing from the property any items of personalty, furniture and furnishings save for his personal effects and clothing without the written consent of the wife.
That the husband and wife forthwith do all things necessary and sign all necessary documents to cause D Pty Ltd to sell by public auction the property at 2 B Street, Suburb C for the best price reasonably obtainable and to apply the proceeds of sale in the following manner and priority:
(a) In payment of agent’s commission and auction expenses;
(b) In payment of any contract adjustments payable on settlement;
(c) In payment of legal expenses on sale;
(d)In discharge of any E Pty Limited mortgage Loan Numbers …79 and …87 secured on the said property;
(e)In discharge of the E Pty Limited mortgages Loan Numbers …79 and ..87 secured over the property at 1 B Street, Suburb C;
(f)In payment of any arrears of council and water rates in relation to the property at 1 B Street, Suburb C; and
(g)In payment of the balance then remaining to a controlled monies account held by the parties’ solicitors on trust for the parties, pending further order.
That the husband and wife do all things necessary to:
(a)Place the property on the market for sale by auction as soon as practical and in any event within six weeks of listing;
(b)The wife shall within seven days nominate three real estate agents and the husband shall within two days of such nomination select one as the selling agent;
(c)The reserve price to be as agreed between the parties and failing agreement, is to be as recommended by the selling agent;
(d)The husband to keep the property in a good state of repair and condition having regard to its current condition;
(e)The husband and wife to co-operate with the selling agent in making the said property available for inspection and otherwise;
(f)The parties are to agree on a solicitor or conveyancer to act on the sale of the property, and failing agreement, the wife within seven days from this date nominate a list of three solicitors to act and the husband shall within two days of such nomination select one as the solicitor having carriage of the sale;
(g)That in the event that the selling agent requires the payment of costs in advance of the sale, such costs shall be met by the husband, he to be reimbursed from the proceeds of the sale.
Liberty to apply on short notice as to implementation or enforcement of these orders including any application for the appointment of a trustee for sale.
That the wife be at liberty to provide a copy of these orders to E Pty Limited.
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 Gillim & Gillim 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 PARRAMATTA |
FILE NUMBER: PAC 2655 of 2014
| Mr Gillim |
Applicant
And
| Ms Gillim |
Respondent
REASONS FOR JUDGMENT
On 5 June 2014 the wife commenced proceedings against the husband seeking orders as to property adjustment. The proceedings were commenced in June 2014 in the Federal Circuit Court of Australia and were transferred to this Court in July 2015.
In her Amended Initiating Application filed 7 April 2016 the wife seeks final orders, in summary, that:
a)The parties’ net property be distributed 70 per cent to the wife and 30 per cent to the husband;
b)The parties’ properties at 1 B Street, Suburb C (“1 B Street”), 2 B Street, Suburb C (“2 B Street”), 1 F Street, Suburb G (“1 F Street”) and H Street, Suburb J (“H Street”) be sold and the proceeds be distributed to effect the division sought by her;
c)The parties do all things to facilitate sale of the properties and $150,000 be paid to Mr K Gillim prior to the distribution of funds between the parties; and
d)The first respondent be declared the beneficial owner of the property located at 1 F Street.
The husband in his Amended Response filed 29 October 2014 seeks final property orders, in summary, that:
a)The husband cause to be paid to the wife the sum of $740,000 within six months of the date of such order;
b)The parties retain all other real estate, goods, chattels, superannuation, moneys at bank and shares in their respective possession or control and be responsible for their own liabilities except as otherwise provided in these orders;
c)Declaration that the registered proprietors of 1 F Street, Suburb C being the husband’s late mother, Ms L Gillim, and the adult child, Ms M Gillim, hold the land and premises as trustees upon trust for the applicant, Mr Gillim, as beneficial owner;
d)The proposed second respondent, Mr Gillim (the husband), as legal personal representative of the late Ms L Gillim and the proposed third respondent, Ms M Gillim, do all things required to transfer 1 F Street to the respondent; and
e)Costs.
The Interim Application
On 28 November 2018 the husband filed an Application in a Case seeking interim property orders. The orders pressed on the day of the interim hearing were those contained within his Outline of Case which provided, in summary, that:
a)The parties cause 1 B Street, Suburb C to be sold with the proceeds of sale to be distributed in payment of agent’s commission and advertising expenses and legal expenses of sale, payment of outstanding rates, payment of any money due to the mortgagee for loan numbers …79 and …87 and the balance of money be paid to Belgrave Lawyers Trust Account;
b)In order to facilitate the sale, both parties do all things necessary and execute all documents as are necessary to place the property on the market for sale by auction and ensure that such auction takes place within six weeks of placing 1 B Street on the market, the parties appoint Ms N Gillim of O Group as the selling agent, the husband appoint an independent solicitor to represent both parties in the sale; and that both parties do all things necessary to properly present and keep reasonably maintained the properties and to make the properties available for inspection by prospective purchasers;
c)Both parties vacate 1 B Street two weeks prior to the scheduled settlement date; and
d)The wife pay the husband’s costs of and incidental to these proceedings.
The husband relied upon his affidavit filed 10 September 2019 to support his application.
The wife in her Response to the husband’s Application in a Case filed 11 September 2019 seeks orders that the husband’s Application in a Case be dismissed and that he pay her costs on an indemnity basis.
In the alternative, the wife seeks, in summary, that:
a)The parties cause 2 B Street, Suburb C to be sold by auction at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or their nominee and that the proceeds of the said sale be disbursed as follows:
i)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
ii)Payment of any money due and owing to the mortgagee;
iii)Payment of mortgage arrears with respect to 1 B Street; and
iv)The net balance to be placed with Farah Lawyers and invested in an interest-bearing trust account until further orders
b)The husband vacate 1 B Street, Suburb C.
c)Until further order the husband pay as they fall due all regular instalments in respect of the mortgage, council rates, water rates, insurance and utility bills in respect of the matrimonial home and pay forthwith any arrears in respect of the said instalments;
OR
d)Both parties take all necessary steps and execute all necessary documents to cause 1 B Street to be sold by auction at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or their nominee and that the proceeds of the said sale be disbursed as follows:
i)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
ii)Payment of any money due and owing to the mortgagee; and
iii)Payment of $800,000 to the wife to be paid to Farah Lawyers trust account; and
iv)The net balance be placed with Farah Lawyers and invested in an interest bearing trust account until further orders
The wife relied upon her affidavit filed 11 September 2019 to support her application.
Context
The husband is presently 65 years of age and the wife is presently 53 years of age.
The parties were married and commenced cohabitation in 1987.
The five (now adult) children of the parties’ marriage were born between 1989 and 2000.
The parties commenced living at 1 B Street in 2008.
The parties separated on 20 January 2014.
Upon separation the wife became entitled to Centrelink benefits which she has continued to receive to date.
Following separation the wife briefly moved into a rental property with her daughters. The wife asserts that her adult children assisted her with rental payments and other living expenses as her income was not sufficient to meet her costs.
The wife asserts that in early 2017, the husband convinced her to move back into the matrimonial home and attempt to reconcile.
The parties have unsuccessfully attempted to reconcile on a number of occasions and continue to reside separated under the one roof with four of the adult children of the marriage.
The husband’s evidence
The husband asserts that he is currently unemployed and is unable to meet the mortgage repayments for the properties at 2 B Street and 1 B Street owned by his company. He annexes to his affidavit evidence that the mortgage to S Bank in relation to 1 B Street, the matrimonial home, is now in default. The husband is concerned that as the wife also does not have the financial capacity to pay for the mortgages, the bank will repossess at least one of the properties in the near future.
It is the husband’s evidence that he is currently supporting himself using the rental income of $1,000 a month from 1 F Street which is owned by the parties’ children with the rent being paid to him.
The husband asserts that the current mortgage over 1 B Street is $90,000 and the mortgage over 2 B Street is around $420,000. He contends that the sale of 1 B Street would provide him with enough equity to pay off the mortgages over both these properties and leave the parties with no further mortgage liabilities.
The husband says mortgage payments on 1 B Street are $600 per month and on 2 B Street $3,300 per month.
The husband says he is not comfortable with living under the same roof as the wife and it is causing him mental stress. He relies on the orders sought in his Application in a Case to ease his financial hardship and bring an end to the separation under the one roof. He says he is “forced to live with (the Respondent) under the same roof”, causing him mental stress and that he is not coping very well. The added burden of mortgage payments, he says, is adding to his mental stress. Clearly, the sale of property to remove any liability for mortgage payments will free up some $3,900 per month to the husband in addition to the $1,000 per month he now has from the rent from the Miriam Street property.
Yet the husband seeks the sale of the property and the holding of funds in trust, pending further order. The inference is that he is well able to accommodate himself elsewhere if the investment property is sold.
The wife’s evidence
The wife asserts that the parties’ children have continued to apply pressure on her to reconcile with the husband and discontinue the court proceedings.
She further deposes that this pressure resulted in her agreeing to transfer the property at H Street, Suburb J to their son Mr K Gillim. The H Street property was transferred into the name of “a company” controlled by her adult son which the wife alleges the husband may one day become a director or shareholder and, therefore, access the property as a financial resource.
The matrimonial home property at 1 B Street is owned by D Pty Ltd, a company of which the husband is the sole director and sole shareholder. The company also owns 2 B Street, an investment property that is tenanted.
The wife believes that the husband is currently employed full time as she observes him to return home in a dirty state as if he has been working on a construction site all day.
The wife annexes to her affidavit a valuation of 1 B Street of $1,350,000 which she says was obtained by the husband unilaterally and not in compliance with an order for them to jointly obtain a valuation on 1 May 2018.
The wife contends that the husband has the following financial resources available to him: P Bank shares worth $6,800, land in Country Q worth over $300,000, a Motor vehicle 1 and Motor vehicle 2worth over $60,000; and four townhouses at 2 F Street.
The wife asserts that she continues to clean, cook and wash for the family including the husband even though they are separated.
The wife says that she suffers from Lupus, depression, Rheumatic disease and loss of hearing. She asserts that her current financial and medical circumstances restrict her capacity to live in and pay for rental accommodation.
The wife asserts that her only income comes from Centrelink in the amount of $225 per week and she buys all of the household groceries. She is currently studying a course at TAFE two days a week in an attempt to improve her situation.
Interim Property
The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
In Strahan (supra), the Full Court said:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth) (“the Act”). It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
A detailed inquiry is not required, but there must be some assessment of s 79 factors.
In Strahan the Full Court went on to say:
137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138. The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139. We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
140. As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141. As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
The property pool
There is insufficient evidence before the Court to determine, with any certainty, the nature and extent of the matrimonial property pool available for division if it is appropriate that any order be made. No balance sheet was tendered in evidence nor is there any evidence as to valuation.
Otherwise, there remains issues as to the 1 F Street property presently in the name of third parties to the proceedings with the wife seeking sale orders as to that property and the husband declaratory relief. Yet the husband receives the net rent after outgoings from this property.
The parties’ relationship of about 30 years continues although they are separated under the one roof now for some years.
As best as can be determined, the property pool of the parties both actual and asserted appears to be:
Husband Company 1 B Street $1,350,000 (As valued)
Husband Company 2 B Street $ 760,000 (Husband
estimate)
Adult Children 1 F Street $3,000,000 (As asserted by
(4 townhouses) the wife)
Adult son H Street $ NK
Husband P Bank shares $ 6,800
Husband Land in Country Q $ 300,000E
Husband Motor vehicles $ 60,000E
Wife Motor vehicle $ 2,000
Husband D Pty Ltd $ NK
Primary Liabilities:
Mortgage 1 B Street $ 90,000 (As asserted in
the husband’s affidavit)
Mortgage 2 B Street $ 420,000 (As asserted in
the husband’s affidavit)
Otherwise, the husband asserts “a large number of debts”.
The history of litigation
There have been orders previously for the valuation of all real estate referred to above: 4 December 2014, and the husband was injuncted from dealing with any of the properties referred to above: 29 May 2015.
On 14 December 2015 orders were made by consent as follows:
2.By consent, orders are made in accordance with paragraphs 1, 2, 3, 5 to 10 of Court’s Exhibit “A”, being:
(1)That no later than 4.00 pm on 14 February 2016 the husband pay to the wife or as she may direct in writing the sum of $200,000.00.
(2)That in the event that the said sum is not paid by the due date the husband shall do all acts and things to sell the property at H Street, South Suburb J for the best price reasonably obtainable and to distribute the proceeds of sale as follows:
(a)In payment of the real estate agent fees and other reasonable selling costs;
(b)In payment of the existing mortgage over the property (estimated by the husband to be approximately $180,000.00);
(c)In payment of the said sum of $200,000.00 to the wife or as she may direct in writing; and
(d)The balance to be held in a Controlled Monies Account by the solicitors’ for the parties on behalf of the parties pending agreement or Court Order.
(3)In the event of the sale of the said property, the parties shall do all things to facilitate the sale as follows:
(a)Place the property on the market for sale by auction as soon as practical with a view to conducting such auction within 6 weeks of listing;
(b)The wife to nominate three real estate agents and the husband to select one as the selling agent;
(c)The reserve price to be as agreed between the parties and failing agreement, to be as recommended by the selling agent;
(d)The husband to keep the property in a good state of repair and condition having regard to its current condition;
(e)The husband and wife to co-operate with the selling agent in making the said property available for inspection and otherwise;
(f)The parties are to agree on a solicitor or conveyancer to act on the sale of the property, and failing agreement, the wife to present a list of three solicitors to act and the husband to choose one; and
(g)That in the event that the selling agent requires the payment of costs in advance of the sale, such costs shall be met by the husband, he to be reimbursed from the proceeds of the sale.
(5)The husband shall keep the wife informed in a timely way of the progress of his application to borrow the said sum including but not limited to the following:
(a)Sending her a copy of his application for finance (within 7 days of today), any response from the relevant financial institution and any other relevant documents relating to the borrowing; and
(b)Otherwise keeping her informed by reference to information as to progress as received by him.
(6)That the operation of Order 3 of Orders marked “B” made 29 May 2015 by Judge Donald be suspended so as to enable the refinancing of the said property in order for the husband to comply with these Orders but not otherwise.
(7)That the husband comply with the Orders of Judge Donald of 29 May 2015 marked “A” and Order 1 and 2 of “B” of that date no later than 4:00pm on 25 January 2016.
(8)That the parties be granted liberty to apply on 7 days’ notice in the event of questions relating to compliance with these Orders.
(9)That in the event that the husband is unsuccessful in his attempts to refinance the said property then he shall communicate this to the wife and Order 2 will have effect as from that time.
(10)That the parties’ costs of their interim Application and Response be reserved.
Notations:
3.Paragraphs 4 and 11 of Court’s Exhibit “A” are noted, being:
(4)The Court notes that the wife has agreed to these orders on the basis that the husband has represented to her that he is confident that he can borrow the said sum of $200,000.00 secured against the said property and he shall make application for same within 7 days.
(11)The Court notes that neither party anticipates making any further application for interim financial relief.
These orders were varied by consent on 23 February 2016 to substitute the property at 2 B Street for the purposes of sale to realise funds payable to the wife, if required.
As at June 2016, the parties were still at issue in relation to proper disclosure and on 14 June 2016 orders were made as follows:
(1)The matter is adjourned to Wednesday 29 June 2016 at 9.30 am for a further Case Management hearing.
(2)The Husband be in attendance before the Court in person on the adjourned date notwithstanding that he may be legally represented.
(3)In the absence of the Husband being in personal attendance on the adjourned date a warrant will issue for his arrest to bring him before the Court.
(4)That until further order the Respondent Husband MR GILLIM born 2 March 1954, be and is hereby restrained from departing the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/s of the said MR GILLIM on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Respondent’s name/s on the Watchlist for the said period or until the Court orders its removal.
(5)Leave is granted to the Respondent Husband to apply on short notice to vary, suspend or discharge the previous order.
(6)The Husband on the adjourned date produce to the Court copies of his personal income tax return for each of the financial years 30 June 2014 and 30 June 2015.
(7)The Husband is ordered to provide profit and loss balance sheets for the company D Pty Limited for each of the financial years 30 June 2014 and 30 June 2015.
(8)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than 28 June 2016.
(9)The Wife’s costs of and incidental to today be reserved being costs thrown away by the Husband’s non-attendance.
(10)The Applicant Wife prepare a short aide memoire to the Court outlining the following:
(a)Her assertions as to the properties owned by the Husband in Country Q;
(b)Her understanding of the Husband’s concession as to the properties that he does own; and
(c)Her assertion as to the value of each of the properties that she asserts that the Husband owns notwithstanding his concession and the basis for her assertion as to value.
(11)The Applicant provide to the Respondent within 7 days a draft Joint Balance Sheet setting out the asset pool contended for by the Applicant and the asserted values and the Respondent within a further 7 days shall insert into that Joint Balance Sheet the Respondent’s contentions as to the asset pool and the asserted values.
(12)In relation to any issue or dispute in the completed Balance Sheet the parties are to footnote their reason for their contention.
(13)The Applicant is to cause the completed Balance Sheet to be provided to the Court on the adjourned date.
IT IS NOTED THAT:
A.Notwithstanding the property at 1 F Street Suburb G remains as to 99% in the name of the Husband’s late mother there has been it appears no application for a grant of probate in her estate in which the Husband asserts he is the sole beneficiary.
B.There remains a significant issue between the parties in relation to the Husband’s property interests in Country Q and banking interests in that country.
C.The Husband has not attended before the Court today and the progression of this matter has been made difficult by his absence.
On 29 June 2016 further orders were made as follows:
BY CONSENT IT IS ORDERED THAT:
(1)The Applicant’s solicitor nominate five valuers as to the Country Q properties, being items 18 to 36 inclusive in the document marked MFI A today, to the Respondent within seven days.
(2)The Respondent to select one valuer within a further seven days.
(3)The parties agree to use R Group if market appraisals are not agreed to value the properties in Australia.
(4)The parties consent to the caveats being lodged on properties in Australia to secure the Applicant’s interest.
(5)The Respondent provide the Applicant with his tax returns for 2014 and 2015 within 14 days.
IT IS FURTHER ORDERED THAT:
(6)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday 12 August 2016.
(7)The matter is adjourned to Tuesday 6 September 2016 at 11:00am for a directions hearing before the Registrar.
(8)The Husband be in attendance in person on that day in the event that he is not legally represented.
(9)The costs of the Wife for today are reserved.
IT IS NOTED THAT:
A.The Respondent is not currently working and has not done so 6 weeks prior.
B.The Respondent is struggling with the repayments on the home loans for properties.
C.The matter is adjourned to the Registrar for consideration to be given to the completion of the joint balance sheet sufficient to facilitate the matter being relisted before a judge for appropriate trial directions.
Subsequently, on 7 April 2017 further orders were made by consent that were to facilitate the wife being registered as proprietor as to a one half share as tenant in common of the properties at 34 and 2 B Street and 1 F Street within 12 weeks.
The parties continued as to a property resolution with various directions being made to ready the matter for either conciliation or hearing. No balance sheet has been resolved as at May 2019.
On 17 July 2019 orders were made as follows:
In respect of the Application in a Case filed by the husband on 12 June 2019
(1)In respect of the Application in a Case filed by the husband on 12 June 2019 leave is granted for that application to be made returnable before the Court instanter.
(2)By consent, the order made 14 June 2016 restraining the husband Mr Gillim born … 1954 from departing the Commonwealth of Australia is suspended for the period from this date until 31 August 2019 inclusive with the effect that the said husband may travel overseas during that period.
(3)By consent and pending further order, the husband be restrained from encumbering, mortgaging or charging or selling or disposing of in any way any real estate property including but not limited to properties situate at 1 B Street, Suburb C, 2 B Street, Suburb C and 1 F Street, Suburb G in his name or in the name of D Pty Ltd or any property to which he may be beneficially entitled pursuant to the Will of his late mother.
(4)By consent, the listing before the Registrar on 25 July 2019 be vacated.
(5)By consent, the said Application be dismissed.
In respect of the Application in a Case filed by the husband on 28 November 2018
(6)The listing before the Registrar on 25 July 2019 be vacated.
(7)The wife file and serve a Response to the Application in a Case and any affidavits to be relied upon in support of orders sought by her by no later than Friday, 23 August 2019.
(8)The Application in a Case filed on 28 November 2018 be adjourned to the Registrar’s duty call over on Thursday, 12 September 2019 at 9.30 am.
(9)The time for compliance with orders made by the Registrar on 1 May 2018 as to valuations be extended as follows:
(i)That within 14 days from this date, the wife nominate three expert real estate valuers to value the reasonable market value of the real estate property situate at 1 B Street Suburb C, 2 B Street, Suburb C and 1 F Street, Suburb G.
(ii)That within a further 14 days the husband nominate which of such valuers shall undertake the valuations.
(iii)That within a further 14 days the wife’s solicitor forward to the agreed valuer a letter of instructions to that valuer as a single expert to undertake the said valuations provided always that in default of the husband making the election as provided, the wife may choose one of such valuers to be appointed as a single expert.
(iv)That within 14 days the wife nominate three suitably qualified experts to value the husband’s shareholding and interest in the company D Pty Ltd.
(v)That within a further 14 days thereafter the husband nominate which of such valuers shall undertake the valuation.
(vi)That within a further 14 days the wife’s solicitor forward to the agreed valuer a letter of instructions to that valuer as a single expert to undertake the said valuations provided always that in default of the husband making the election as provided the wife may choose one of such valuers to be appointed as the single expert.
THE COURT NOTES THAT
(10)The Registrar on 1 May 2018 made orders providing for the husband to initially pay the costs of such valuations with the wife to reimburse the husband at the conclusion of this matter, such order not displacing the general rule that the parties shall pay equally for any single expert report.
(11)There are presently interim issues awaiting determination such as may provide funds for valuation fees incurred in default of the husband making payment, however, such does not preclude the wife from seeking to enforce the husband’s primary obligation as to payment of valuation fees.
Primary proceedings as to property
(12)The primary proceedings as to property are adjourned for further judicial case management to 9.30 am on Tuesday, 22 October 2019 in the expectation that single expert valuations will either be completed or close to completion by that date such as to facilitate the Court making trial directions.
(13)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Monday, 30 September 2019.
(14)The costs of the wife today are reserved noting that the husband’ s solicitor was not in attendance until 2.15 pm today notwithstanding proceedings being listed at 9.30 am.
The present interim application was heard on 21 October 2019 and following written submissions judgment was reserved on 18 November 2019.
Discussion
The husband seeks an order for sale of 1 B Street with the funds held pending further order. He, clearly, in that event is able to accommodate himself elsewhere.
The proposed sale will see the wife without accommodation and reliant on Centrelink benefits. Clearly, her ability to obtain other accommodation is severely compromised.
The mortgage payments on both B Street properties are in arrears.
The sale of 2 B Street will discharge both of the present mortgage encumbrances.
Section 114 of the Act provides:
“The court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate”.
Without making orders for property adjustment between the parties, it is otherwise appropriate, in the exercise of the Court’s powers to make such orders as are just and equitable under s 114 of the Act, in the present circumstances to order that the investment property at 2 B Street be sold forthwith and that after payment of mortgages, encumbrances secured against both the properties at B Street be discharged with the balance of funds to be held by the parties’ solicitors in a controlled monies account pending further order. Such will facilitate the liquidation of secured debt pending further order and thus significantly improve the husband’s financial position.
Orders will be made accordingly.
Sole use and occupation
Section 114 of the Act provides:
(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:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Under s 114 of the Act, the Court is required to make an order that “it considers proper”.
In Plowman v Plowman (1970) 16 FLR 447 Carmichael J considered some of the relevant matters as to use and occupation orders.
In Sieling v Sieling (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations include:
...the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) quoted with approval a passage from P & P, an unreported decision of Lindenmayer J delivered 12 July 1982, 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 to expect them to remain in the home together.
Thus relief should not depend merely on the balance of convenience or hardship. The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other. It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.
The relevant criteria for determining an application for sole use and occupation has, after reviewing earlier authorities, been described by the Full Court in S & S [2002] FamCA 59 as “surprisingly vague”. That being the case as highlighted by Cronin J in Mikele & Mikele [2008] FamCA 651 pursuant to s 114 of the Family Law Act 1975 the Court is required to make an order that “...is proper and more importantly, to exercise discretion judicially”.
In S and S (supra) the Full Court 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.
The Court is mindful of what was said by the Full Court in Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
The wife suffers ill-health yet continues to render domestic services to the husband. She asserts that she has no financial capacity to live elsewhere.
The wife is reliant on Centrelink benefits and receives no financial support from the husband. It is readily apparent that she would find it difficult to rent alternate accommodation should the matrimonial home be sold. The husband receives rental payments from his children and whilst his financial circumstances, otherwise, are vague he seeks a sale of the home and the retention of sale funds pending further orders. It is implicit that he is able to accommodate himself elsewhere. He gives no evidence as to the circumstances of his unemployment when until relatively recently he was earning an income sufficient to meet significant mortgage obligations. The mortgagee’s demand is indicative of arrears of about three to four months having accumulated.
Both parties are at liberty on proper application to seek some release of funds after sale of the investment property.
There is no issue touching upon the parties’ adult children some of whom remain in the matrimonial home.
In these circumstances, the parties remain in a conflictual relationship and the wife makes complaint as to the husband’s financial conduct. Yet the husband himself asserts an intolerable situation with him continuing to live in the home: “I am not comfortable continuing to live under the same roof as the Respondent, as it is causing me mental stress and I am not coping very well”.
Where the husband will be relieved of ongoing stress and significant mortgage commitments if the investment property is sold then it is considered proper that the husband vacate the home at 1 B Street forthwith.
Perhaps such a circumstance will focus the parties’ minds on resolution of these long running proceedings.
Orders will be made accordingly.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 November 2019.
Associate:
Date: 28 November 2019
3
4
1