Grenfell and Grenfell and Ors

[2010] FamCA 1078

FAMILY COURT OF AUSTRALIA

GRENFELL & GRENFELL AND ORS [2010] FamCA 1078

FAMILY LAW – PROPERTY – application by the wife seeking orders that the husband vacate the former matrimonial home – where there is significant dispute surrounding the ownership of the home – where the wife is undergoing treatment for breast cancer – consideration of the parties’ financial positions – orders that the husband vacate the former matrimonial home

Family Law Act 1975 (Cth) ss 90AA, 90AC, 90AE, 90AF, 106B, 114(1) & 114(3)

Ascot Investments Ltd v Harper (1981) 148 CLR 337
Bassett v Bassett (1975) 1 All ER 513
Davis v Davis (1976) FLC 90-062
Davis and Davis (1983) FLC 91-319
Page v Page (1981) FLC 91-025
Mikele & Mikele [2008] FamCA 651
P v P (unreported, 12 July 1982)
S & S [2002] FamCA 59
Seiling v Sieling (1979) FLC 90-627

APPLICANT: Ms Grenfell

RESPONDENT: Mr Grenfell

INTERVENORS: Mr and Mrs Maguire

FILE NUMBER: ADC 3172 of 2010

DATE DELIVERED: 30 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BERMAN, SC

SOLICITOR FOR THE APPLICANT: HOWE MARTIN & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR MELLOWS

SOLICITOR FOR THE RESPONDENT: PAUL KIRK, ROBERTS & CO

COUNSEL FOR THE INTERVENORS: MS CLARK

SOLICITOR FOR THE INTERVENOR: RICHARDS COMMERCIAL LAWYERS

Orders

1. On or before 5.00 pm on Friday 10 December 2010 the husband vacate the former matrimonial home being the property at P in South Australia.

2. Pending determination of the final property settlement proceedings between the husband and wife and second and third respondents the wife do have the sole use and occupation of the property at P in the said State.

3. Upon the husband vacating the former matrimonial home the husband is at liberty to remove from the home and retain such items as agreed with the wife pending the final hearing of the applications for property settlement proceedings.

4. The wife do retain the remaining contents of the former matrimonial home pending the final hearing.

5. That pending the trial the wife, second and third respondents shall permit the husband to continue to store his personal property at the P home in the said State and give the husband access to the said personal property at the P home in the said State upon giving the wife 24 hours notice of his intention to access the property PROVIDED THAT such access to the property does not occur more than one occasion per week.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3172  of 2010

MS GRENFELL

Applicant

And

MR GRENFELL

Respondent

And

MR AND MRS MAGUIRE

Intervenors

REASONS FOR JUDGMENT

Introduction

1. The husband Mr Grenfell started proceedings in August 2010 by filing an Initiating Application in which he sought interim and final orders.  His wife Ms Grenfell and her parents Mr and Mrs Maguire were respondents to the application.

2. The orders which he sought in his application for settlement of property included:

   “That by way of settlement of property the said house property situated at [P] in the State of South Australia be sold and that the net proceeds thereof be distributed equally between the applicant and the first respondent pursuant to Section 79 of the Family Law Act 1975 (Cth) or in such manner as the Court deems just and equitable in the circumstances.”

   (Paragraph 4 of the final orders sought by the husband).

3. By way of interim orders the husband also sought an injunction restraining the wife and her parents from taking or attempting to take possession of the property at P or bringing or continuing proceedings in the District Court for possession of the house, bringing or taking proceedings to warn the caveat he had registered over the Title to the property or “selling mortgaging or otherwise disposing of or encumbering the said property”.

4. By response to the Initiating Application the wife sought the dismissal of the husband’s application by way of interim orders and final orders. The response also sought by way of final orders that there be a declaration pursuant to section 78 of the Family Law Act 1975 (Cth) (“the Act”) that the P property was an asset of the S Trust and that the husband has no beneficial interest at law or in equity in either the Trust or the property. The wife sought final orders that by way of settlement of property the husband and wife retain “all shares, investments, interests in any trusts, motor vehicles, furniture, household effects and personal effects which may be registered in their respective names or held in their respective possessions.”

5. By way of interim orders the wife sought an order that the husband forthwith vacate the former matrimonial home at P.

6. Both parties were seeking orders for full discovery.

Hearing

1. The applications for interim orders were listed and heard before me on 12 November 2010.  The applicant husband was represented by Mr Mellows of counsel.  The wife was represented by Mr Berman, SC of counsel and the second and third respondents by Ms Clark of counsel.

2. The Court was referred to the applications, response and affidavits filed by the parties at that time.

Brief background and chronology

1. The husband was born in Italy in 1954 and is now aged 56.  The wife was born in Italy in 1956 and is now aged 54.

2. The husband and wife were married in 1991. 

3. There is a dispute about the negotiations and dealings with the land agent immediately prior to the purchase of the property at P which will need to be determined in the final hearing.  It is agreed however that the property at P was purchased by the wife’s parents (the second and third respondents) in October 1996.  The purchase price of $360,000 was paid entirely by the wife’s parents.  After some renovations were carried out the husband and wife moved into the P property in early 1997 where they have resided since.

4. The husband maintains that he was led to believe that the wife’s parents had purchased the property as a gift to the husband and wife.  He claims that he has an equitable interest in the property because he was told it was a gift to him and the wife.  He asserts a constructive trust arises because of this and the money he has spent on, and the work he has done for the improvements to, the property.

5. The wife and her parents deny there was any gift made by the parents to the husband or the wife.  They maintain that the P property is, and always has been, held upon trust for the S Family Trust.

6. The husband is not a beneficiary or one of a group of possible beneficiaries of this trust.

7. Whilst the wife and her parents concede that the husband spent some money on renovating the P property, there is a dispute about the amount of work and the value of that work.

8. The relationship between the parties deteriorated from approximately 2005 until 2009.  It is agreed that the husband and wife have been living separately and apart in the property at P since mid May 2009 or June/ July 2009.

9. The husband maintains that it was not until late August 2009 that he received information from solicitors acting for the wife and her parents indicating that the trustees of the S Trust required him to vacate the property.  He asserts that until then he was not aware that the property belonged to the S Trust.  He maintains that he believed the property was always registered in the name of the wife.  He has placed a caveat over the property.

10. The wife maintains that the property was transferred to her originally as trustee of the S Trust and that it was never held by her in her own right.  In April 2007 the wife transferred her interest as trustee to her parents acting as new trustees of the S Trust.

11. The husband annexes to his first affidavit filed in August 2010 a copy of the Deed of Trust for the S Trust dated 8 October 1996.  The original trustee was the wife.  She was also one of the beneficiaries being the “designated person”.  The trust is of the type described as a “discretionary trust”.  The appointors are the wife’s parents.  They have the power to appoint new trustees.

12. In the middle of June 2010 the wife’s parents commenced proceedings in the District Court of South Australia seeking an order for the “ejectment” of the husband from the property at P.  The District Court proceedings have been adjourned pending the interim proceedings in the Family Court of Australia.

13. The affidavit of the wife’s father filed in early November 2010 in the Family Court of Australia annexes the documents filed in the District Court proceedings and denies the husband’s allegations that the property was at any time a gift from the wife’s parents to the husband and wife.

14. The affidavit filed by the wife’s father confirms that the wife’s parents became the trustees of the S Trust by Deed of 27 April 2007 and that the wife’s parents had given the husband notice to vacate the premises by letter from the solicitors to the husband in December 2009 and had previously requested he vacate the property by letter sent in August 2009.

15. In her affidavit filed on 4 November 2010 the wife sets out her history of the relationship of the parties.  She maintains that the husband and wife have been living separately and apart under the one roof since mid 2009.  They sleep in separate rooms.  She says that she usually gets up and goes to work before the husband gets up.  She said that he is seldom home for the evening meal and does not return to the house until 8.00 pm, often later.

16. Her affidavit says:

    “On the weekends, my husband is in and out of the [P] home”.

    (Paragraph 8 of the wife’s affidavit filed 4 November 2010).

17. The wife is employed as a secretary.  The husband previously ran a franchise, then operated a business.  He is now a part-owner of a business trading under the name “C Business”.

18. There are no children of the marriage. 

19. Both parties continue to work. 

20. The husband is in good health.

21. In June 2010 the wife was diagnosed with breast cancer.  She underwent surgery in July 2010.  She commenced chemotherapy in August 2010.  Her affidavit indicates that this chemotherapy will continue for a further 12 months.  Her affidavit refers to the intravenous chemotherapy causing “nausea, diarrhoea, bitter taste, hair loss and other side effects” (paragraph 55 of the wife’s affidavit filed on 4 November 2010).

22. The wife also refers to the need to commence radiotherapy in January 2011 every day for six weeks.  She has continued to work, but takes time off when she is to have chemotherapy.

23. The wife maintains that the husband’s presence in the P home is “negatively influencing my ability to recover from my illness”.

24. In paragraphs 57 to 60 of her affidavit the wife says:

    “57.In addition to the abovementioned side effects, I also become very stressed and edgy as a consequence of my treatment.

    58.My husband’s refusal to vacate the [P] home has exacerbated the side effects I have experienced as a consequence of my treatment and is impeding my recovery.

    59.My husband is in a position to find alternative accommodation.  He owns a property in [K], has a good income, and clearly has additional funds which are not disclosed in his financial statement.

    60.I seek an order that my husband vacate the [P] home forthwith.”

25. The parties do not agree about the amount of financial contributions, nor non-financial contributions.  There is considerable dispute about the assets retained by the husband and in particular the value of his motor vehicles and interest in the business.  These matters will need to be determined after all the evidence is tested at the final hearing.

26. The wife denies any allegation that the P property was a gift to her and the husband.

27. The wife has filed a short report from her surgeon, Dr PN, dated 28 October 2010 confirming her referral for chemotherapy and, following that, radiotherapy.  The report concludes:

    “Her overall prognosis is still very good.  Following her radiotherapy in addition to herceptin she will most certainly start hormonal therapy with either Tamoxifen or an aromatase inhibitor which would continue for up to a 5 year period.  Again this treatment should be well tolerated.

    It is not appropriate that I should comment upon the significance of your client’s husband in the [P] home. The stress that this causes is not something that I can determine.

    It would be fair enough to confirm that [the wife’s] treatment is not without considerable side effects and does cause ongoing distress and anxiety.  It would be clearly advantageous to reduce any associate extra stresses within her life.  Overall she would certainly benefit from general support from family and friends.”

28. The husband opposes the order sought by the wife that he vacate the former matrimonial home.  In paragraph 5 of his affidavit filed on 12 November 2010 he states:

    “5.In relation to the interim order sought by the wife that I do forthwith vacate the house at [P] in the State of South Australia, I say that I oppose that order for a number of reasons and in particular because:

    5.1the house at [P] has been my home for the last 14 years and I have put enormous effort into restoring, improving and maintaining the property over that period, and have become very attached to the property.

    5.2I have a large quantity of furniture, household goods and effects and tools as well as motor vehicles that are contained in the house and sheds located at the property and if I were ordered to vacate the property I would have nowhere to store such items.

    5.3I have never rented a house property in my life and I believe that it will be extremely difficult for me to find and rent a suitable property in a suitable area of Adelaide within my financial capacity.

    5.4As acknowledged by the wife in paragraph 8 of her Affidavit sworn on 4^th November 2010, the wife and myself sleep in separate rooms of the house, and we rarely see each other even though we continue to reside under the same roof.  I have been very conscious of the wife’s privacy since she and I began living separately under the same roof in about late June/early July 2009, and I have endeavoured as far as possible to avoid any contact or conflict with the wife and I say that I will continue to do so until such time as the issues of property settlement are resolved between the wife and myself.  The house is large, and thus it has been possible for us to live separately and apart though under the same roof and to avoid unnecessary contact between us since the time of separation.”

29. The husband maintains that he has a “meagre income”.  He also refers to the restrictions caused by the wife placing a caveat over the K property which he owns and the difficulty of finding “a suitable rental residential property” on his income.

30. In the Financial Statement filed by the husband on 19 August 2010 he refers to his income as “Rent from the [K] property (net of expenses) E$150 per week” and income from the partnership of “C Business” $450 per week.  (Emphasis added).

31. Notwithstanding that he refers to the income of K property as “net of expenses” he includes the Commonwealth Bank mortgage of the K property of $250 per week in his expenses. 

32. The husband gives his other expenses per week as:

    Income tax   E$50.00

    Rates, unit levies  E$30.00

    Motor vehicle registration for Holden Commodore                  $15.00

    MasterCard payments   $50.00

    Total:  $145.00

33. Apart from real estate the husband discloses assets at Commonwealth Bank of $3,500.71 and $2,996, two motor vehicles (being the Commodore with an estimated value of $3,000 and a 1997 Chevrolet which he estimated the value of $30,000). 

34. The wife takes issue with the value of a motor vehicle and with the value of the husband’s business which he estimates to be at $20,000.  The husband also has a 2004 Harley Davidson motor cycle which he values at an estimated $18,000 and household contents estimated to be $15,000.  His liabilities include the mortgages over the K property, “unknown” income tax liabilities and significant MasterCard debt in excess of $18,000.  The husband does not give full particulars in his Statement of Financial Circumstances of the other expenses.

35. Apart from the Commonwealth Bank mortgage payments of $250 per week the husband has fixed outgoings of $145 per week to be paid from his income of $600 per week, leaving him $455 per week for rent and day to day living expenses. 

36. If the $250 per week mortgage payments remain the husband has only $205 per week to meet his possible rent and day to day living expenses.

37. The wife’s Financial Statement filed on 4 November 2010 alleges that she has an income of $878 per week from her salary, interest from bank accounts with a total average weekly income of an estimated $902 per week.  Her fixed outgoings of income tax, rates and taxes, health insurance, other expenditure are $324 per week with a total personal expenditure of $615 per week.  The wife’s assets consist of savings and household goods, totalling approximately $50,500.  She has no significant liabilities.

Issues

1. The parties seek significant orders at an interim stage of the proceedings before the factual matters in dispute supporting many of their claims have been determined by testing the evidence at trial.

2. The husband seeks an order restraining the wife’s parents from continuing with the District Court proceedings in which they are seeking that he vacate the P property.  Mr Berman SC, counsel for the wife, questions the jurisdiction and power of the Family Court of Australia to make such an order in these proceedings.

3. The wife seeks an order that the husband vacate the former matrimonial home.  The wife and her parents maintain that the former matrimonial home is owned by her parents who hold the property as trustees for the S Family Trust.

4. The wife maintains that the Court should exercise its power under section 114 asserting that it is a proper exercise of the Court’s discretion in these circumstances to order the husband to leave the home.

The Law

1. The most relevant provisions of the Act are:

   Section 90AA – Objects of this Part

   The object of this Part is to allow the court, in relation to the property of a party to a marriage, to:

   (a)make an order under section 79 or 114; or

   (b)grant an injunction under section 114;

   that is directed to, or alters the rights, liabilities or property interests of a third party.

   Section 90AC – This Part overrides other laws, trust deeds etc.

   (1)This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part):

   (a)any other law (whether written or unwritten) of the Commonwealth, a State or Territory;

   (b)anything in a trust deed or other instrument.

   (2)Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

   Section 90AE - Court may make an order under section 79 binding a third party

   (1)In proceedings under section 79, the court may make any of the following orders:

   (a)an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor;

   (b)an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor;

   (c)an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made;

   (d)an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.

   (2)In proceedings under section 79, the court may make any other order that:

   (a)directs a third party to do a thing in relation to the property of a party to the marriage; or

   (b)alters the rights, liabilities or property interests of a third party in relation to the marriage.

   (3)The court may only make an order under subsection (1) or (2) if:

   (a)the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

   (b)if the order concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

   (c)the third party has been accorded procedural fairness in relation to the making of the order; and

   (d)the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and

   (e)the court is satisfied that the order takes into account the matters mentioned in subsection (4).

   (4)The matters are as follows:

   (a)the taxation effect (if any) of the order on the parties to the marriage;

   (b)the taxation effect (if any) of the order on the third party;

   (c)the social security effect (if any) of the order on the parties to the marriage;

   (d)the third party's administrative costs in relation to the order;

   (e)if the order concerns a debt of a party to the marriage--the capacity of a party to the marriage to repay the debt after the order is made;

   Note:See paragraph (3)(b) for requirements for making the order in these circumstances.

   Example: The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.

   (f)the economic, legal or other capacity of the third party to comply with the order;

   Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).

   (g)if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters--those matters;

   Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

   (h)any other matter that the court considers relevant.

   Section 90AF - Court may make an order or injunction under section 114 binding a third party

   (1)In proceedings under section 114, the court may:

   (a)make an order restraining a person from repossessing property of a party to a marriage; or

   (b)grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.

   (2)In proceedings under section 114, the court may make any other order, or grant any other injunction that:

   (a)directs a third party to do a thing in relation to the property of a party to the marriage; or

   (b)alters the rights, liabilities or property interests of a third party in relation to the marriage.

   (3)The court may only make an order or grant an injunction under subsection (1) or (2) if:

   (a)the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

   (b)if the order or injunction concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

   (c)the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

   (d)for an injunction or order under subsection 114(1) - the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

   (e)for an injunction under subsection 114(3) - the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

   (f)the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

   (4)The matters are as follows:

   (a)the taxation effect (if any) of the order or injunction on the parties to the marriage;

   (b)the taxation effect (if any) of the order or injunction on the third party;

   (c)the social security effect (if any) of the order or injunction on the parties to the marriage;

   (d)the third party's administrative costs in relation to the order or injunction;

   (e)if the order or injunction concerns a debt of a party to the marriage--the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

   Note:See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

   Example:The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.

   (f)the economic, legal or other capacity of the third party to comply with the order or injunction;

   Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

   (g)if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters--those matters;

   Note:See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

   (h)any other matter that the court considers relevant.

   Section 114(1) and (3)

   (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.

   …

   (3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

1. The relevant reported cases are referred to in the following discussion.

Discussion

1. Mr Berman SC, counsel for the wife, challenged the basis upon which the husband sought the anti-suit injunction against the wife’s parents. He highlighted the orders sought by way of final orders by the husband in the Initiating Application describing the section 106B application as “mischievous” when considered in the context of the husband seeking final orders that the property was held in trust. He challenged whether there was sufficient “common substratum” to establish the basis upon which this Court could exercise the jurisdiction central to the wife’s parents’ application in the District Court.

2. When referring to Ascot Investments Ltd v Harper (1981) 148 CLR 337 the High Court decision, Mr Berman SC emphasised that the Court should not lightly remove the rights of other parties.

3. Ms Clark, for the wife’s parents, conceded that the Court probably did have the power in appropriate circumstances to make the orders sought, but maintained that these circumstances do not fit the necessary criteria.  She emphasised that the wife’s parents were only seeking possession of the property and that the husband could continue to assert his rights and claims in the Family Court. 

4. It is significant that the husband is seeking the sale of the property at P and is not seeking any orders that he retain the property or any interest in the property by way of final order.

5. Ms Clark properly conceded that whilst the basis for the final orders sought by the husband had not been made out this would need to await the determination and merits at the final hearing of the property settlement proceedings.

6. Mr Mellows, counsel for the husband, maintained that there was a clear case made out on the affidavits filed by the husband for declaratory relief based upon a constructive trust or gift.  He maintained that any difficulties arising from the alleged gift being unperformed were overcome by arguments in relation to constructive trust and unconscionable behaviour.

7. I am satisfied that this Court has jurisdiction to entertain the applications by the husband, notwithstanding that his orders sought include an order restraining the second and third respondents from pursuing their proceedings for possession in the District Court.  The ownership of the P property, both at law and in equity, is a fundamental issue between the parties in the Family Court of Australia proceedings.  The determination of that issue is so basic to the dispute between the parties as to clearly fulfil the requirement that provides this Court with the accrued jurisdiction.

8. Once this Court has the appropriate jurisdiction and power it is still necessary to consider whether that discretion should be exercised.

9. One factor which would suggest such the discretion should not be exercised is the fact that the husband does not seek to retain the property for himself by way of final orders, but is in this Court seeking the payment of a sum after the sale of the property.

10. However, whilst the husband’s claim to have an equitable entitlement to an interest in the property at P remains untested, it would be appropriate to temporarily restrain the second and third respondents from continuing with the proceedings in the District Court of South Australia.  To do otherwise would involve the husband and the second and third respondents in separate Court proceedings (one in a State Court and one in this Court) seeking a determination about the same issue namely, whether the husband had any equitable right in the property which would give him a basis upon which to oppose the possession orders sought by the wife’s parents.

11. Upon request from counsel for the second and third respondents, such an order would be made upon the basis that the husband gave an undertaking as to payment of any damages to the second and third respondents arising from the injunction.

12. The wife’s interim application seeks an order that the husband vacate the former matrimonial home. She is supported in this application by the other respondents.

13. The wife maintains that notwithstanding the parties keep out of each other’s way in the former matrimonial home as much as possible that the situation is nonetheless inherently unsatisfactory. 

14. The husband maintains his financial position makes it difficult for him to find separate accommodation. 

15. The wife’s health and ongoing future treatment are significant.

16. Counsel for the wife’s parents indicated that if the husband was ordered to leave the property arrangements could be made for him to continue to store his personal effects at the property and have access to those personal effects upon reasonable notice.  This offer would overcome any difficulties of the husband finding rental accommodation which allowed him to store all of his personal effects.

17. The husband maintained that this was not a major issue.  The significant difficulty for him was alleged to be finding other suitable accommodation which he could afford.

18. The evidence does not suggest that the husband has assaulted or harassed the wife, however, the evidence of the wife does indicate that the stress of the husband and wife continuing to occupy the former matrimonial home whilst having been separated since mid 2009 is significant.  The wife’s doctor’s report makes it clear that “It would be clearly advantageous to reduce any associate extra stresses within her life” (last page of report of Dr PN).

19. The relevant criteria in sole use and occupation cases has been discussed by the Full Court in the matter of S & S [2002] FamCA 59 wherein the Full Court stated “The criteria to be applied when determining a sole use application are surprisingly vague”.  (Paragraph 32 of the Full Court judgment).  The Full Court then went on to refer to the often cited authorities of Davis v Davis (1976) FLC 90-062, Page v Page (1981) FLC 91-025 and Seiling v Sieling (1979) FLC 90-627.

20. In Page v Page (Supra) the Full Court referred to the English decision of Bassett v Bassett (1975) 1 All ER 513 at page 520 which included a section which said:

    “I extract from the cases the principle that the court will consider with care the accommodation available to both spouses, and the hardship to which each will be exposed if an order is granted or refused, and then consider whether it is really sensible to expect a wife and child to endure the pressures which the continued presence of the other spouse will place on them.  Obviously inconvenience is not enough.  Equally obviously, the court must be alive to the risk that a spouse may be using the instrument of an injunction as a tactical weapon in the matrimonial conflict.”

21. In the Full Court decision of S & S (Supra) the Full Court again referred to the decision of Davis and Davis (1983) FLC 91-319 which quoted from an unreported decision of Lindenmayer J in P v P (unreported, 12 July 1982) which included:

    “…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 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.”  (Emphasis added)

22. Similarly, the Full Court in S & S (Supra) referred to Seiling v Seiling (Supra) at 78,264 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.”

    (Emphasis added)

23. In the matter before me there is a considerable dispute as to whether the husband has any property rights and whether he is indeed in any way an “owner” of the property.

24. The Full Court in S & S (Supra) concluded that an injunction prohibiting a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.  (Paragraph 38).  In that paragraph however they continue to refer to English cases which made it clear that such an order should not be allowed to become “a routine stepping stone”.  Whilst quoting all of those cases however the Full Court continued in paragraph 40 with their conclusion:

    “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.”

25. In the more recent judgment of Mikele & Mikele [2008] FamCA651 His Honour Justice Cronin referred to the decisions of Davis v Davis (Supra), Page v Page (Supra) and Seiling v Seiling (Supra).  In relation to the first two cases His Honour correctly said at paragraph 32:

    “The comments of the Full Court have to be read cautiously having regard to the fact that they do not set down any specific principle. Those comments reinforce the obligation of a court under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make an order which is proper and more importantly, to exercise discretion judicially.”

26. A Judge at first instance therefore has the guidance of the Full Court decisions, however, the Court is required to exercise the discretion under section 114 taking into account the particular circumstances of this individual matter.

Conclusions

1. The husband works in his partnership business, owns a property in K (although subject to a caveat by the wife) and does not have an obligation to support any other person.  There are no children of the relationship.

2. The wife has the capacity to support herself.  The stress of continued joint occupation of the former matrimonial home needs to be seen in the context of the wife’s health factors.  The requirement for the wife to continue with ongoing chemotherapy and later radiotherapy is a significant factor which takes the matter beyond a case where there is mere tension in the home.

3. Weighing carefully the husband’s claims about financial difficulties, the Court is satisfied that nonetheless such an order is just and equitable in all of the circumstances.

4. Balancing the asserted difficulties of the husband in finding and paying for other accommodation and the significant stress to the wife caused by the combination of the husband continuing to occupy the premises and her health treatment issues, I am satisfied that it is proper in these particular circumstances, reasonable, sensible and practicable for the husband to vacate the former matrimonial home.

5. If the husband complies with the order of this Court to vacate the former matrimonial home the District Court proceedings by the wife’s parents would become unnecessary. (They are only proceedings seeking an order for possession against the husband).

6. The interim orders sought by the husband included an injunction restraining all of the respondents from attempting to take possession of the property at P.  That application should be dismissed as it is clearly contrary to the orders proposed to be made by this Court directing the husband to vacate the property.

7. The injunction concerning the District Court proceedings is obviously inappropriate or unnecessary if an order is made in this Court directing the husband to give up possession of the property.

8. There is no indication that the respondents have commenced or propose to commence proceedings to warn the caveat placed over the P property by the husband.  This matter will need to be determined by the Family Court of Australia when considering the orders to be made after the final trial.  The caveat placed on the Certificate of Title by the husband provides him with temporary security of preventing the transfer of the property.  There is no evidence that the respondents have taken or proposed to take any steps to remove the caveat pending the determination of these Family Court proceedings.

9. Considering all of the factors and the appropriate legislation the orders are proper and just.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 November 2010.

Associate: 

Date:  30 November 2010