HARPER & PINT

[2010] FamCA 34

FAMILY COURT OF AUSTRALIA

HARPER & PINT [2010] FamCA 34

FAMILY LAW – PROPERTY – Sole use and occupation of the former matrimonial home – Where the Husband wishes to sell the property – Where the Wife is pregnant and requires stability of accommodation – Where the Husband’s application would limit the trial Judge’s exercise of discretion – Application for sole use and occupancy acceded to

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Mother will have a period of hospitalisation – Where the child will live with the maternal grandparents – Changeover to occur as directed by the Mother

APPLICANT: Mr Harper

RESPONDENT: Ms Pint

FILE NUMBER: MLC 8349 of 2009

DATE DELIVERED: 20 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Barry J

HEARING DATE: 20 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort of Counsel appeared for the Applicant Husband

SOLICITORS FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: The Respondent Wife appeared in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Property Issues

1. As from the date of this Order the Wife has the sole right to use and occupy the property at C (“the subject property”).

2. All moneys held by the Husband in cash in the safe deposit box at the Commonwealth Bank, M, be paid within forty-eight (48) hours in reduction of the loan from the Westpac Bank secured by mortgage over the subject property.

3. If the said cash is not deposited within forty-eight (48) hours, the matter is to be
   re-listed at 10.00 am on 27 January 2010 in the Family Court of Australia, Melbourne.

4. The Husband is restrained from encumbering, disposing of, or in any way dealing with his interests in the subject property.

5. The Wife is to pay $175 per week to Westpac Bank in reduction of the mortgage debt over the subject property.

6. The Husband is to continue to make all other outstanding payments on the mortgage to the Westpac Bank in relation to the subject property.

7. The Wife is to pay the insurance on the subject property, and once such insurance is paid, she is to notify the Husband in writing, who is to forthwith indemnify her 50 per cent of all such moneys paid.

8. The Wife is to pay the rates on the subject property, and once such rates are paid, she is to notify the Husband in writing, who is to forthwith indemnify her 50 per cent of all such moneys paid.

9. Within fourteen (14) days of the date of this Order the Husband is to provide to the Wife full particulars with supporting invoices and accounts for all moneys expended in the construction of the home on the subject property.

10. Within twenty-four (24) hours the Husband is to authorise in writing and thereafter ensure within four (4) days that all appliances currently paid for or partly paid for are installed in the subject property.

11. The Husband is restrained from entering the subject property, save for the purposes of authorising his agents to install the appliances under Order (10) herewith.

12. If the appliances are not so installed within the time stipulated, the matter is to be forthwith re-listed in the Family Court of Australia, Melbourne.

13. The Wife is authorised to have any work completed on the subject property to improve its value, including but not limited to dealing with S Builders, L Company and T Fencing.

14. The Wife is to supply copies of invoices and receipts to the Husband for all expenditure in relation to carrying out landscaping and fencing on the subject property within seven (7) days of receipt of any such documentation.

15. The Husband or his legal representatives is to notify the Wife in writing within forty-eight (48) hours of confirmation of payments made, by way of insurance, rates, mortgage instalments or any other payments made pursuant to these Orders.

Children’s Issues

1. Order 3 (e) of the Orders of 19 October 2009 is discharged and the Father is to collect and return the child, B born … October 2008, from such a venue as the Mother may from time to time in writing direct.

2. During any period of hospitalisation of the Mother, the Father is to collect the child from such venue as the Mother may advise in writing being from the Mother’s parents’ property or such other venue within a five (5) kilometre radius of such property.

3. On 9 February 2010, the Father’s time with the child is to commence at the completion of the family assessment process with the Father to return the child to the Mother at 7.00 pm.

4. Liberty to apply to both parties on forty-eight (48) hours notice.

5. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

a.The Mother and Father are to attend for an assessment by a Family Consultant on  9 February 2010 at the Dandenong Registry of the Family Court.

b.The parties are to attend for a conciliation conference at 11.00 am on 24 March 2010 at the Melbourne Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8349 of 2009

MR HARPER

Applicant

and

MS PINT

Respondent

REASONS FOR JUDGMENT

1. In the proceedings for determination today Ms Pint is the applicant.  She is the respondent in substantive proceedings filed some time ago.  She is not legally represented.  In her application in a case filed on 5 January this year she seeks an urgent determination.  She seeks orders restraining the father, Mr Harper, from disposing of certain assets.  She seeks an order that she have the sole use and occupation of a property at C, and an order restraining the father from entering the property without her agreement in writing.  She proposes that she pay a weekly rental of $175 for the use of the property.

2. By paragraph 5 she also seeks an order that the father give permission in writing for the mother to have any work completed on the house to improve its value, including, but not limited to, dealing with S Builders, L Company and T Fencing.  She seeks an order that any money the father has pre-paid for legal expenses be refunded into the Westpac loan account, that the father continue to meet the Westpac home loan payments using his fortnightly income from his security job.

3. She additionally seeks an order that when she is in hospital that the child B will live with her parents and visit her daily in hospital.  No submissions were made on this aspect but I make the obvious point that her parents are not party to these proceedings and I have no intention of interfering with whatever arrangements the mother may care to make while she’s in hospital, between her parents and herself.  The father’s rights are stipulated pursuant to the orders of October last year.

4. Whether the child or her parents visit her in hospital is a matter for them.  She seeks a further order that for the six weeks after her period in hospital when she’s unable to drive that the father undertake the collecting and returning of the child.  The father is to supply the mother with all correspondence and receipts relating to the matrimonial home including from S Builders and Westpac Bank, that he take out home insurance – I’m informed that that’s been done but I’ll raise it as an issue later – and the father must immediately arrange for appliances to be installed into the matrimonial home.

5. The mother’s application and affidavit were filed on 5 January and I’m informed were served on 8 January.  The father is legally represented.  There was no response and no affidavit served on the mother until today.  Time will tell whether a satisfactory explanation for failing to file this material at an earlier point in time is forthcoming.  Suffice it to say, for present purposes, the orders the father seeks are:

   (1)That the property at C be placed on the market for sale.

   (2)That the property be sold by auction and the proceeds be distributed to pay costs and commission to discharge the mortgage to Westpac Bank and the balance then remaining to be held in trust by his solicitors.

6. I intend to, first of all, deal with the property issues.  The property was vacant land which was purchased in about late 2008.  It’s described in various ways as being either … or C.  It matters little.  It’s at C.  It was purchased in the father’s sole name.

7. The explanation for this is that this was done because of the Federal Government’s first home owner’s grant system.  The mother had previously expended her money, presumably, and he was able to get the full benefit of that by acquiring the property in his name.  The mother’s parents, I’m informed, and for present purposes I accept, advanced approximately $180,000 to secure the purchase.  As I understand the position, no security is held for this loan.  The father obtained a mortgage with the Westpac Bank.  The mortgage debt on the property is now $250,000.  The father says that he spent $190,000 on the home.  The difference is $60,000 and of the $60,000 he says $40,000 remains invested in a separate account, the details of which he has failed to disclose.

8. Of the balance of $20,000, $12,000 has been spent in legal fees and $8000 on personal expenses over and above, presumably, money received from his employment.  I propose to direct the father, that in fourteen days, to supply every single invoice, every account, every single piece of documentation for the construction of the building and any associated costs, to confirm the cost of $190,000.  It’s common ground, as between the parties that the $40,000 is to be paid to Westpac Bank to reduce the indebtedness under the mortgage.

   RECORDED  :  NOT TRANSCRIBED

9. I will be directing the father to take that $40,000 in cash and within 48 hours to pay it to the Westpac Bank.  If he fails to do that the matter is to be mentioned before me in the Family Court at Melbourne at 10.00 am on 27 January.  More of that later.  The mother seeks an order that the father be restrained from further encumbering or in any way dealing with the subject property.  That’s not opposed.  She seeks further orders in relation to his car and various tax refunds, etcetera.  It seems to be those moneys have already largely been expended.  I don’t propose to make an order over the car at this point in time.

10. Outstanding property issues, thereafter, as I’ve enunciated them from the mother’s application include the right to occupy the subject property.  The mother says she should be allowed to.  The father says, “Sell the property.”  There’s the issue of appliances which, as I understand it, have been paid for but not yet installed.  There’s the issue of fencing problems and, as I’ve said, there’s the injunction freezing the other assets which I’m not amenable to making orders in those terms.

11. Alternative issue of sole use.  The court has recently been granted jurisdiction over de facto property claims.  There is no difficulty in categorising this as a de facto property claim.  The court has the same wide powers available given by the legislature, as it has in relation to married couples.  In other words, I am satisfied the court has jurisdiction to make an order for sole use and by its injunctive powers to restrain the father from entering the property.  The case law applicable to such decision is similar to the case law in relation to cases under the Family Law Act prior to the amendments.

12. In support of her application for sole use, the mother says has the care of her 15-month-old, the parties’ child, and she’s pregnant with the parties’ second child and that child is due in the first week of March.  She says that her parents reside within about five minutes drive from the subject property, as does the father.  Currently, she resides some 50 minutes from the subject property down at Y.  She says it’s important to have the security of accommodation at this stage of her life with a young child to look after and another one to be born, and she would have the support of her parents in close proximity during this period.

13. She says that the property she currently rents at Y is owned by her parents.  She makes the obvious point that her parents are unsecured to the tune of $180,000 at the present time with the property all in the father’s name.  The parents may well wish to rent the subject property at Y to at least give them a source of income from that property.  The other argument which wasn’t advanced but which has occurred to me in the mean time was the greater proximity to her parents and the father is that it will save the child having to be driven for almost two hours every day when the father spends time with the child.

14. The father spends two days a week with the child and that situation is likely to continue.  It’s obvious from the father’s affidavit the mortgage is two months in arrears and if she’s not to occupy the property it will remain unoccupied and not income producing, presumably pending its sale.  I propose to accede to the mother’s application to allow sole use and occupation.  To allow the sale of the property, as sought by the father, is to remove the discretion of the trial Judge as to the range of orders that he or she could make.  It’s obvious that the mother would want to consider, as one option, the right to purchase the property.

15. She would have the right to bid on any property but it seems to me that it’s not the sort of order for the sale of the only major asset of the parties that one makes at an interim hearing heard simply on the papers.  There are other issues in dispute as to whether any other outstanding moneys are said to be owing and if so, by whom and for how much? 

16. Further to the order empowering the mother to have sole use and occupation of the property, I propose to issue an injunction restraining the father from entering the property.  The mother offers to pay the father, $175 a week.  I would have thought that that was better directed to pay the mortgage instalments and I propose to make an order that from the moment she occupies the subject property, she is to pay $175 a week to the Westpac Bank in reduction of the mortgage.

17. Now, with the payment of $40,000, the bank will, I assume, accept that the mortgage is not in arrears for quite some considerable period of time to come.  The mortgage is $350 a week.  One could extrapolate that the mortgage is good for perhaps the next two years.  It will be even better than that because the mother is paying half for the right to occupy what was effectively, joint property.  However, because of the father’s conduct in taking out the additional $60,000 advance from the bank it left the parties with no equity whatsoever in the property.

18. Briefly, the calculations are as follows:  the father says in his financial statement, he is the registered proprietor of the property – it’s worth $380,000.  $250,000 is owing to Westpac.  Once $40,000 is paid, that reduces to $210,000.  The other liability is to the mother’s parents of $180,000 – means there is a total indebtedness of $390,000 and a property worth $380,000.

19. All of this is based on assumption that the father is able to satisfy the court, at some point in time, that $190,000 has been expended on the building and associated costs.  There are various other pieces of evidence about advances made by the mother and paying for certain expenses, but they are not matters for determination today.  The father said that the appliances were not installed because if they had been, and the property remained unoccupied, the property could not be insured.

RECORDED  :  NOT TRANSCRIBED

1. What I propose to do is this:  that the mother is to pay the insurance on the property and the father is to indemnify the mother forthwith, the sum of 50 per cent of the insurance costs.  The mother is to pay the rates on the subject property as and when they fall due and the father is to forthwith indemnify her in the sum of – one half of the rates.  The father is to continue to make all other outstanding payments on the mortgage other than the sum of $175 per week paid by the mother.  And so if the rates go up, he will pay more; interest rates go down, he will pay less.

2. In the event – I will not make this part of the order – but it is obvious that in the event the father defaults on any of that, the mother can seek an order and his wages can be garnisheed.  It is as simple as that.  So I suggest the father pays the instalments as ordered by the court.

3. Within four days of today’s date, the father is to ensure that all appliances are installed in the subject property.  If that is not done, then the matter is to be mentioned before me in the Family Court of Melbourne at 10 o’clock on 27 January.

4. I propose to make an order in terms of paragraph 5 of the mother’s application, albeit it is in relatively wide terms.  I propose to authorise the mother to have any work completed on the house to improve its value, including but not limited to dealing with S Builders, L Company and T Fencing, if they wish to do it.

5. Whether a Judge accepts, at some future point in time, that such expenditure is reasonable is a matter for another day.  But I accept that because of the interest of the mother’s parents in fetching the best value for money in the property,  she will ensure that the property is in a fit state.  Whether the property ever gets sold, as I say, is a matter for another day.

6. There was nothing in the father’s affidavit material – why those orders should not issue as per paragraph 5, and no submissions were made in that regard.  I turn to consider child-related issues.  These form into a relatively narrow band.

7. They first relate to the arrangements to be made in the event of the hospitalisation of the mother for the birth of the child.  She has made arrangements for her parents to care for the child.  I propose to make an order which – as I understand, it is not really opposed – that during any period of hospitalisation of the mother, the father is to collect the child, B, from such venue as the mother may advise in writing being from the mother’s parents’ property or such other venue within a five kilometre radius of such property.

RECORDED  :  NOT TRANSCRIBED

1. The mother is further concerned that when released from hospital she will be unable to drive for a period of six weeks.  Under the current orders, the changeover is to be at a Police Station which I assume is somewhere between where the mother currently resides and where the father resides.

RECORDED  :  NOT TRANSCRIBED

1. I propose to make an order that for the purpose of spending time with the child, the father is to be responsible for collecting and returning the child to such address in C.

RECORDED  :  NOT TRANSCRIBED

1. Why don’t I just make it from such address in C as the mother may direct in writing - … is a suburb of C.

RECORDED  :  NOT TRANSCRIBED

1. So the father is to be responsible for collecting and returning the child – I gather it is only a five-minute drive.  Now, I am going to read into the record what I propose are the draft orders and I will give either party then the right to be heard in relation to the drafting exercise.  But I am not prepared to alter the substance of the reasons that I propose to issue for the reasons I have already given.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  20 January 2010