Hansen and Peel

[2020] FamCA 80

FAMILY COURT OF AUSTRALIA

HANSEN & PEEL [2020] FamCA 80

FAMILY LAW – PROPERTY – Exclusive Occupation – Where the parties executed a binding financial agreement during the course of their marriage – Where both parties currently live under the same roof in a residential property owned solely by the wife – Where the current terms of the binding financial agreement entitles the wife to retain sole ownership of the property to the exclusion of the husband – Where the wife sought orders compelling the husband to vacate and remain away from the property – Where the husband made an oral application for an interim order precluding the wife from ejecting him from the property, but withdrew his oral application and still wanted reasons published for the grant of relief sought by the wife – Concluded there is no basis for an injunction overriding the wife’s existing legal rights – Ordered the husband vacate the property and is thereafter restrained from remaining upon, attending at, or loitering around the said property

Family Law Act 1975 (Cth) s 114

APPLICANT:  Ms Hansen

RESPONDENT:  Mr Peel

FILE NUMBER: NCC 3777 of 2019

DATE DELIVERED: 4 February 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 4 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Peter Hamilton And Associates

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Mullane & Lindsay

Orders

1. By 4:00 pm on Tuesday, 18 February 2020, the husband shall vacate the wife’s property situate at and known B Street, Suburb C, NSW, after which time the husband is restrained from remaining upon, attending at, or loitering around the said property.

2. Otherwise, save as to costs:

   a.The application for interim relief set out within the Initiating Application filed on 21 November 2019 is dismissed;

   b.The application for interim relief set out within the Response filed on 16 December 2019 is dismissed; and

c.Any and all other outstanding applications for interim relief are dismissed.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. No order as to costs.

NOTATION

A.The proceedings remain listed before the Registrar for further procedural directions on 1 April 2020.

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 Hansen & Peel 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 NEWCASTLE

FILE NUMBER: NCC 3777 of 2019

Ms Hansen

Applicant

And

Mr Peel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant wife and the respondent husband married in 2008.

2. During their marriage, in July 2010, they executed a binding financial agreement governing their financial rights in the event of their marital separation.

3. Although the husband appears to doubt the truth of it, the wife swears that she regards the marriage as being at an end ever since May 2019. Indeed, the husband admits the wife told him at that time:

   I need to divorce you and have a property settlement as soon as I can…

4. Presently, the parties still live under the same roof in a residential property which is wholly owned by the wife. 

5. The wife commenced proceedings in November 2019, seeking enforcement of the binding financial agreement. She also sought interim relief in the form of an injunction requiring the husband to vacate and stay away from her property.

6. The husband joined issue, to also seek financial relief, including the amendment and then the enforcement of the binding financial agreement. The husband eventually wants an order amending the terms of the binding financial agreement so that it then declares his partial proprietary interest in the wife’s property, which proprietary interest he does not presently enjoy either at law or under the agreement. Today, he made an oral application for an interim order which would authorise his continuing occupation of the property against the wife’s wishes. 

7. The interim hearing before me today entails one issue: whether the husband can continue to reside in the wife’s property, even though she is legally entitled to eject him as a trespasser. The wife wants an injunction compelling the husband to both vacate her property and to remain away from it. The husband wanted an injunction restraining the wife from exercising her legal right to eject him, thereby thwarting her entitlement to exclusive occupation of the property, though he eventually withdrew that application during the course of submissions. Notwithstanding the withdrawal of his application and the wife’s undisputed legal entitlement to exclusive occupation of her home, the husband still requested the publication of reasons for the grant of relief sought by the wife. 

8. Both parties relied upon the power set out within s 114 of the Family Law Act 1975 (Cth) as the foundation for the relief they sought. While the parties agreed the power existed to make the orders they each proposed, they sought that the power be exercised in diametrically opposite ways.

Evidence

1. In the prosecution of her application the wife relied upon:

   a)her financial statement filed on 21 November 2019;

   b)her affidavit filed on 21 January 2020 (but only paragraphs 1-8, 14-18, 43-55, 65-86, and 99);

   c)a letter from her treating doctor dated 31 October 2019 (Exhibit W1); and

   d)a copy of the binding financial agreement (Exhibit W2).

2. The husband relied upon:

   a)his financial statement filed on 16 December 2019;

   b)his affidavit filed on 28 January 2020 (but only paragraphs 1-11, 40-52, 81-84, 89, 100-118, and 134-136); and

   c)a plan and photographs of the wife’s home (Exhibit H1).

Consideration

1. The wife is the sole legal proprietor of the subject property. Her exclusive proprietorship of the property is presently under no threat at all. The express terms of the binding financial agreement entitle her to retain sole ownership of the property to the husband’s exclusion (Clauses 7 and 10). 

2. The husband’s purported application to vary the terms of the binding financial agreement, before it is then enforced, faces several procedural and substantive obstacles. His present application for such orders may not be an impossible aspiration, but it would not be unfair to presently characterise it as ambitious. 

3. The parties’ circumstances, insofar as they could influence the determination of where the balance of convenience lies, are quite disparate.

4. The wife is 71 years of age. She has terminal cancer and has a life expectancy of less than a year. She is in palliative care at home and wants the quiet enjoyment of her home without undue stress. She cannot work and she has no income. She has savings of some $65,000, but expects to spend it on medical treatment and legal fees.

5. By comparison, the husband is 66 years of age. He is a self-employed professional. He believes his professional practice is worth $500,000 and it affords him a continuing income stream. He owns his own residential property, which is currently unoccupied and is therefore readily available for his use. He admits its value is $1.1 million, though it is encumbered. He deposed to debts of about $530,000 but, besides his income stream to service the loans, he has savings of $89,000, two cars worth $40,000, other miscellaneous personal property he estimates to be worth $40,000, and financial resources in the form of two trusts which he estimates to be worth some $120,000. 

6. In the face of those facts, there could be no persuasive basis upon which discretion could be exercised to make an injunction in the terms initially sought by the husband, to thereby override the wife’s existing legal rights. 

7. The husband’s ultimate claim upon the wife’s property appears tenuous at best, which makes his current demand to remain in occupation of the wife’s home all the more audacious. His oral application, although withdrawn, is formally dismissed.

8. Conversely, the wife’s application is granted. I was initially inclined to refuse her application for an order compelling the husband to vacate her home (as distinct from an order restraining his return to it), because an order to that effect does no more than confirm her existing legal right to eject him. However, the husband’s apparent refusal to accede to the wife’s legal rights and his decision to press, at least initially, his application for an order entitling him to remain in her property persuades me that orders should be made to clearly govern the parties’ rights, lest it be necessary for the wife to engage police assistance or to take enforcement action. 

9. The wife was prepared to allow the husband 14 days to vacate the property, so I will not order him to do so any earlier, though he should be thankful for her generosity because she is at liberty to engage the police to eject him forthwith. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 February 2020.

Associate: 

Date: 14 February 2020