Gwen and Gwen

[2019] FamCA 872

FAMILY COURT OF AUSTRALIA

GWEN & GWEN [2019] FamCA 872

FAMILY LAW – PROPERTY – Interim application by wife for exclusive occupation of the former matrimonial home and spouse maintenance – Wife granted exclusive occupation of the former matrimonial home – Consideration of the threshold test under section 72 of the Family Law Act 1975 (Cth) (“the Act”) – Wife able to support herself adequately – Wife’s application for interim spousal maintenance dismissed.

Family Law Act 1975 (Cth) ss 72, 114(1)(e)

Borzak & Borzak (1979) FLC 90-688

APPLICANT: Ms Gwen

RESPONDENT: Mr Gwen

FILE NUMBER: SYC 714 of 2019

DATE DELIVERED: 4 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 5 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laughton SC

SOLICITOR FOR THE APPLICANT: Holmes Donnelly & Co Solicitors

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers  

Orders

1. The mother and the child be permitted to return to the former matrimonial home, to the exclusion of the father, forthwith.

2. The mother’s application for interim spouse maintenance is dismissed.

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 Gwen & Gwen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 714 of 2019

Ms Gwen

Applicant

And

Mr Gwen

Respondent

REASONS FOR JUDGMENT

1. The matter of Gwen was an application for interim financial relief filed by the wife on 7 February 2019. There was a multitude of orders sought, but the orders she pressed before me at the interim hearing was exclusive occupation of the former matrimonial home for she and her daughter, and a spouse maintenance order.

2. In relation to the spouse maintenance order, the wife conceded that if I determined she had a right to spouse maintenance, at present the husband can afford $300 to $320 a week towards her support, despite her asserted needs being far in excess of that sum.

3. The husband disputes that the wife is a spouse who fulfils the threshold test under section 72 of the Family Law Act 1975 (Cth) (“the Act”), as being a spouse in need of maintenance and unable to support herself adequately. He disputed her reasonable needs as she set them out and asserted them to be. In any event, he said he had no capacity to pay any money towards her support.

4. Mr Laughton of Senior Counsel was for the wife and Mr Lloyd of Senior Counsel for the husband.

5. The evidence I read was as follows.

6. For the wife:

   a)Initiating Application and Affidavit in support, filed 7 February 2019. I was referred to paragraphs 1 to 130, 148, 150 and 151, however, I had read the entirety of that affidavit before this amended list was given to me;

   b)Affidavit, filed 1 March 2019;

   c)Financial Statement, filed 7 February 2019;

   d)Wife’s tender bundle, attached to her affidavit, filed 6 February 2019; and  

   e)Wife’s case outline.

7. For the husband:

   a)Response, Affidavit and Financial Statement, all filed 1 March 2019; and

   b)Two exhibits:

   i)Exhibit 1, a map of the distance and time between where the party’s daughter, X, is living in Suburb B with her grandparents and her school at Suburb D and where she trains for sports at Suburb H; and

   ii)Exhibit 2, bank account statements of the wife, being a Westpac account ending the digits …37, disclosed to the husband’s lawyer this past Saturday and not before.

The short relevant facts

1. The parties commenced cohabitation at marriage in 2003. At the time, the husband owned several valuable properties in Sydney, some with his brother, some on his own. They were:

   a)A property in Suburb E;

   b)A property in Suburb J;

   c)A property in Suburb F;

   d)Two properties in K Street, Suburb L; and

   e)Various businesses.

2. A quick reading of his assets and liabilities shows that he was a reasonably wealthy man at the time of commencement of the marriage.

3. In 2005, the parties’ child, X was born. Both parents have children from prior marriages and relationships.

4. They purchased the matrimonial home at Suburb J in 2010 for $1,800,000.

5. There had been significant sale purchases of properties and businesses since marriage and up to the purchase of Suburb J and post the purchase of Suburb J.

6. Significant funds were spent on renovating business premises and buying out the husband’s brother’s interest in those business premises, being the Business 1, which occurred from about 2011 when that business was purchased to 2014.

7. The husband asserts in his material that, by 2014, the debt over the Business 1 was $1,300,000.

8. In 2017, Business 1 is sold for $1,600,000 and the net sale proceeds was between $300,000 to $150,000 as the husband asserts. This is contested, as this is an interim hearing, I cannot make findings of facts. This money has been placed in a trust offset account as there has been litigation since the sale of this business in the Supreme Court which is ongoing.

9. This litigation is between the husband and wife (or their alter egos) as vendors and the purchasers of the Business 1. The parties agreed today before me that they would release monies from the controlled monies account to pay the legal fees for that unresolved litigation. 

10. In May 2018, the husband says he leased a business called the Business 2.  He says he did this to earn income after the sale of the Business 1 and this litigation having ensued. 

11. The parties separated under the one roof on 26 November 2018. The wife commenced proceedings in February 2019.

12. Neither party is living in the home pursuant to an agreement they entered into on 23 December 2018, a mere four weeks after the separation.  This agreement is not binding on me. I note the parties had a mediation with Mr G on 23 March 2019. 

13. The agreement, the husband asserts, was instigated by the wife, that is, its completion, its drawing-up and its negotiation. The wife asserts the husband overbore her to sign the agreement and it was rather more his document than her document. 

14. It is fairly clear to me, from both parties’ evidence, that they were living in an intolerable situation, perhaps pre-separation, but certainly for that month after they finally determined to separate.  There were many nasty altercations and perhaps poor behaviour by each of them.  I will go no further with that. I accept it is untenable for them to live together. There are allegations and counter-allegations of poor behaviour prior to and post-separation.

15. X, their daughter, is a talented sportsperson who trains daily in her sports.  The wife’s case is that she wishes to participate, if at all possible, in the next international sports event. The husband is not so certain she will continue her sports career, but both her parents have supported her in this endeavour.  It would appear that X has an excellent relationship with both her parents and she primarily resides with her mother and spends time with her father.  Having regard to her age, that is likely appropriate.

16. The husband has paid for X’s school fees and she attends C School. He has made substantial contribution to her overseas trips for sporting events.  The husband has rented a property in the Suburb J area, and he asserts that the wife and child can remain living in her parents’ home at Suburb B until resolution of the matter, either by their own agreement or at the soon to  be  mediation. Agreement may be some time away. 

17. It was submitted to me by Mr Lloyd SC that the wife’s evidence was not credible for she had failed to disclose and had not been truthful with the Court.  It was submitted she did not disclose her Westpac bank account in her filed material and that is correct. There was no bank account disclosed, and documents just landed in the husband’s wife’s solicitor’s office on Saturday morning.  Further, it was submitted that I could not accept that the wife was unable to support herself financially and that to allow her to return to the home could, in some way, jeopardise the mediation at the end of March 2019. 

18. As neither party could afford to buy the other out, and given the parties’ debt situation which, on the husband’s evidence is approaching about $2,000,000 with assets of over $4,000,000, the wife’s reduced income, the husband’s lack of income, his retirement given his age of 62 and health issues, including a replaced aorta some years ago; the husband says it is an inevitability that the home will be sold, and this should occur sooner rather than later, the parties pay out their debts, and then they can negotiate from what is left over in relation to a property settlement.

19. The wife’s case is vastly different. The wife cannot understand at this stage, why the parties are in this parlous or difficult financial situation given the assets they had, or the husband had, at the commencement of the relationship and the buying and selling of assets and businesses throughout the relationship.

20. The wife wants an opportunity to retain the home at Suburb J, and no one, at this early stage, could determine whether that was feasible or not.

21. The husband says that there are four cross-collateralised loans over the former matrimonial home at Suburb J, the two properties in K Street, Suburb L and a property in M Street, which have been paid from an offset account that was in existence prior to separation. He says there was about six weeks left of payments in that account and then those funds will run out, and neither he nor the wife are able to service those loans.

22. I clearly have power to make the exclusive occupation order the wife seeks by virtue of section 114(3) of the Act. In determining whether I ought make such an order, a decision of Wood J in Borzak & Borzak[1] family law cases, an older decision, his Honour held:

    Insofar as section 114(3) refers to the making of orders which appear to be just or convenient, considerations of convenience are not to be taken into account to the exclusion of considerations as to what is just.  Indeed, it would seem to me that insofar as the legislature has referred to the first requirement that the order be just or equitable and secondly that it may be convenient, then considerations of what is just would, if anything, override considerations of what is convenient.

    [1](1979) FLC 90-688.

23. Going to that issue. I accept the travel for X from Suburb B to Suburb D and then home from Suburb H is onerous given her school commitments, her age and the sports training she undertakes. It involves well over an hour of travel one way. That is well over two hours’ travel each day for her, and this is in circumstances where the former matrimonial home at Suburb J, much closer to her school, and Suburb H, where she trains, is available for she and her mother to return to.

24. I do not see the child’s absence for a tournament shortly and thus absence from the home is a matter that would have any impact upon my decision in relation to the justice of a decision or the convenience of a decision as was submitted by the husband. Ultimately, X and her mother, if they return to the home, will live at the home despite absences.

25. Despite submissions made, I cannot see on the evidence that the wife and child returning to the home will, in any way, jeopardise the mediation.

26. If, as the husband asserts, the mortgage on the properties are not paid, then the bank will take action, as they do, and the wife will have to face the harsh reality of what her life is now, not what it was, if his case be correct and her case not be correct. Whether the wife is in the home at Suburb J or in her parents’ home at Suburb B, this will occur on the husband’s case, so I do not see that this supports the submission that wife being in the home would jeopardise the mediation.

27. The mediation will be carried out on the basis of disclosure, reality and what is known at that time.

28. On these facts, I see it as both just and convenient that the wife be permitted to return with the child to the home to the exclusion of the husband, and I will so order.

29. Going now to the wife’s application for maintenance.

30. On the evidence, the wife’s income is gross $1,270 a week. This consists of work as a casual professional and rent from a property she owns in Suburb N.

31. Her weekly fixed expenses are set out in her material as follows:

    a)Tax of $45;

    b)Rates on Suburb N; and

    c)Landlord insurance on Suburb N $69.

32. The wife makes a claim for payment of the mortgages in respect of the four properties she and her husband have an interest in, however, she does not make those mortgage payments, and neither does the husband. Neither are expending $1,117 weekly, if that be the correct amount because that is being paid from an offset account.

33. When I deduct $1,117 from the wife’s fixed expenditure, the wife’s fixed expenses are $115 per week. 

34. Going now to her discretionary expenses in part N of the financial statement she has filed.

35. I accept the criticism that there is no evidence of house repairs at $35 per week and will disallow that amount. The amount for entertainment and holidays at $180 and $150 are not, as I see it, necessary expenditures at this point in time.  I will allow her gardening and lawn mowing for if she returns to the home that is something that will have to be carried out.

36. I see no evidence to support $50 a week for repairs, furnishings and appliances, books and magazines at $50 per week and gifts at $25 per week and I disallow as they are not necessary. This brings her discretionary expenditure down to some $607 per week.

37. When I add $115 fixed expenses to discretionary expenses, there is necessary expenditure for the wife to support herself and pay her outgoings of just over $800 per week.

38. The question for me is, is the wife able to support herself adequately and provide for her reasonable needs on the income she is able to generate herself, and as I have assessed her necessary needs she is. The wife has sufficient income to pay for what I regard as a necessary expenditure on the evidence filed today which may change when events change, and, therefore, I dismiss her application for interim spousal maintenance at this time.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 5 March 2019.

Associate: 

Date:  26 November 2019