Hathaway and Hathaway

[2016] FamCA 619

FAMILY COURT OF AUSTRALIA

HATHAWAY & HATHAWAY [2016] FamCA 619

FAMILY LAW – Interim injunction – sole use and occupation of a property conceded to have been the matrimonial home – balance of convenience – proper – expedited final hearing

APPLICANT: Ms Hathaway

RESPONDENT: Mr Hathaway

FILE NUMBER: MLC 8027 of 2015

DATE DELIVERED: 21 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 November 2015, 21 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Lakey Family Law and Mediation

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Tasiopoulos Lambros & Co

Orders

1.    Paragraph 2 of the interim and procedural orders sought by the respondent husband is dismissed.

2.    Until further or other order the wife have the sole right to occupy the real property at B Street, Suburb C and the husband, his servants or agents be restrained from entering the property without the consent in writing of the wife.

3.    That subject to further order of the Court this matter be tentatively fixed for final hearing before me on 12 December 2016, estimated to take three to five days.

4.    That all extant interim applications be otherwise dismissed.

5.    This matter be listed for a first day of hearing before me on 24 August 2016 at 9.00am.

6.    That each party file and serve an undertaking as to disclosure by 5 August 2016.

7.    That all documents produced in compliance with a subpoenae be released to the practitioners for the parties for inspection and copying.

8.    Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpoenas (“the court date”).

9.    Where a party seeks to inspect and/or take copies of documents produced in compliance with a subpoena before the court date, I dispense with compliance by the issuing party with rule 15.22(1)(a) for service of the documents referred to in (i) and (ii) thereof to be effected on the named person by hand (as opposed to ordinary service) and for an Affidavit of Service to be filed pursuant to rule 15.30(3) where:-

(a)The document(s) are produced by or on behalf of the named person prior to the court date;

(b)No notice of objection has been given pursuant to rule 15.31(2);

(c)Rule 15.30(1) has been otherwise complied with evidence by a letter signed by a lawyer for the issuing party.

1. If by 1 August 2016 the parties have not agreed to a single expert witness for the valuation of:-

   (a)Real properties;

   (b)The husband’s legal practice;

   the parties each exchange the names and fee structure and availability of not less than three appropriately qualified persons to undertake the said valuations and be in a position to make submissions on the first day of the hearing about the appointment of a single expert witness.

2. My Reasons for decision this day be transcribed and when transcribed be made available to the parties.

IT IS NOTED

A     That in the event that a party fails to attend a hearing or defaults in the filing of documents or things required by him or her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

B.    That the parties are requested to give consideration to the appointment of a private mediation after the first day of hearing and to attend Court having had discussions about an appropriate mediator and a timetable for a private mediation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hathaway & Hathaway 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 MELBOURNE

FILE NUMBER: MLC 8027 of 2015

Ms Hathaway

Applicant

And

Mr Hathaway

Respondent

REASONS FOR JUDGMENT

Ex Tempore Settled from Transcript

1. This matter first came before me on 5 November 2015 in a busy duty list when I had limited time to deal with the matter. I took submissions from Mr Dickson QC, who was counsel for the applicant wife, and Mr Sweeney, who appeared for the respondent husband. Through no fault of the parties I have not delivered the decision and, upon realising that was the case yesterday I appointed this telephone mention.

2. Today, a new solicitor appears on behalf of the husband. When I say new, a notice of address for service was filed by Tasiopoulos Lambros & Co in December of last year. Mr Lambros is not the solicitor who had conduct of the use and occupation application at the hearing in November 2015 but he appears today for the husband. Ms Lakey appears on behalf of the wife. Both parties are linked in by telephone.

3. The parties deserve a decision now rather than waiting even longer for perhaps a better composed set of reasons from me as to why I am going to decide the competing applications for interim sole use and occupation of the property at B Street, Suburb C in favour of the wife as well as to expedite the final disposition of the financial proceedings.

4. At the hearing on 5 November 2015 there was agreement on all interim issues except use and occupation of the property at B Street, Suburb C. In relation to the matters agreed, I made orders by consent. These reasons necessarily relate only to the injunctive relief sought in relation to the property at B Street, Suburb C.

5. The wife’s application initiating proceedings was filed on 8 October 2015. It was abridged and, in paragraph 2 of the interim orders sought, the wife sought an order that she have the sole right to occupy the property at B Street, Suburb C (“the Suburb C property’).

6. The husband, in his Response to Initiating Application filed 2 November 2014, sought that the wife’s application for use and occupation of the Suburb C property be refused and that “the wife and her agents be excluded from and not remain upon the property”.[1]

   [1] 3 [3].

7. The evidence in support of each party’s application includes an affidavit affirmed by the wife on 7 October 2015 (“the wife’s affidavit”), and affidavit sworn by the husband on 2 November 2015 (“the husband’s affidavit”) and affidavit material from each of the two children of the marriage, being Ms D Hathaway and Mr E Hathaway, both affirmed 30 October 2015 filed and relied upon by the husband (“the children’s affidavits”).

8. I will not set out all of the facts and matters rehearsed in the submissions of counsel or the documents. In settling these reasons I will retrieve details of the various entities as described by the husband and the wife on affidavit and refer more extensively to the submissions of their counsel.

9. In this early interim hearing, a statement of fact is not a finding of fact. The evidence has not been tested. No one sought to cross examine the opposing party. I am not in a position to wholly reject the evidence of one party in favour of the evidence of the other party. To the extent that I recite facts or history, it is purely to demonstrate the context within which I make the decision. I accept that evidence may emerge after discovery and full investigation which paints a quite different landscape from that which I have cobbled together from the affidavits and the submissions at this early stage.

10. The husband is a professional by occupation. The wife is not in paid employment. There are four children of the marriage, Mr E (aged 25), Ms D (aged 23), Ms F (aged 21) and Ms G (aged 18). Ms D lives with the husband at H Street, Suburb I. The three other children live independently of each other and the parties. The wife deposes that all children are aligned with the husband against her.

11. On any account there are significant property interests. It appears that the wife contends that the property interests to which the court must have regard under section 79 of the Family Law Act 1975 (Cth) (“the Act’) exceed those which the husband is going to contend are relevant to an alteration of property interests between himself and the wife.

12. At paragraph 15 of the wife’s affidavit, she describes property in sub-paragraphs (a) to (w). These include three properties in the wife’s sole name being J Street in Suburb K, L Street, Suburb M and N Street, Suburb O. There is the Suburb C property and other properties including P Street, Suburb Q, R Street, Suburb S (a shop); business premises at T Street, Suburb U; V Street, Suburb W (the husband’s business premises), H Street, Suburb I, which is the one in which the husband and Ms D continue to live. There are other financial interest other than real property.

13. Apart from the three properties owned directly by the wife, the balance of the property interests are in the names of entities of which it emerges that the husband has intermediate control or control. The husband appears to own no real or personal property in his own name.

14. Counsel for the husband has not been any more precise than to say that a significant proportion, which I take to approximate half of all property described by the wife in paragraph 15 of the wife’s affidavit, is property held in various trust structures, including a discretionary family trust structure, which may or may not be treated as property of either or both of the parties for the purpose of the Part VIII proceedings.

15. Mr Sweeney (for the husband) submitted that the wife’s property and financial interests are valued at approximately $12m and I gather that the remaining property, which is identified by the husband as not being under the control of the wife, is also worth somewhere in the vicinity of $10 or $12m.

16. Mr Dickson QC (for the wife) submitted that ownership and control are shaping up to be live issues in this case. It does not appear to be controversial that, when the parties commenced cohabitation in November 1985, neither had assets of significance. The property interests of the wife and the various entities which the husband says are ultimately controlled by the oldest two children of the marriage, were all accumulated during the marriage as a consequence of the effort, funding and various contributions of the husband and the wife. That is, there have been no gifts or loans or bequests from the parents or family of either party nor have there been any windfalls.

17. The Suburb C property is one of the assets which the wife does not control. Whether the Suburb C property is to be considered property under the control of one or both parties and beneficially owned by the husband or the husband and the wife is a moot point on which, as I have said, counsel for the husband would not be drawn other than to say that, whether the husband and wife have an interest in the Suburb C property, “will be a trial issue”.

18. I understand from what the husband and wife have deposed in their affidavits and the submissions of counsel:

    a)The Suburb C property is owned by a unit trust called Z Trust No. 3.

    b)The trustee of Z Trust No. 3 is Z Pty Ltd which is a company of which the husband and the wife were previously directors, but which, as a consequence of documents signed by the wife in approximately 2011, the husband is now the sole director.

    c)My impression is that the wife alleges there was some postponing conduct around the execution of documents, however, it is beyond dispute that the husband is currently the sole director of the trustee of the relevant trust.

    d)All of the units in the Z Trust No. 3 are owned by AA Pty Ltd.

    e)AA Pty Ltd is a company of which the husband is the sole director. The husband and wife each hold one of the two issued shares in AA Pty Ltd. The husband deposes, and I do not understand it to be contentious, that the wife holds her share in AA Pty Ltd on trust for him pursuant to a deed dated 29 June 1993.

    f)AA Pty Ltd holds all its units in the Z Trust No. 3 on trust for the Hathaway Trust of which the husband’s mother was appointor originally as well as when the Z Trust No. 3 purchased the Suburb C property in 1995.

    g)The husband and the wife are the primary beneficiaries of the Hathaway Trust and their descendants and spouses and some other classes of persons are the secondary beneficiaries.

    h)The husband alleges that the parties separated in 2009. In August 2015, the husband filed an application for divorce in which he alleges that the parties separated under the one roof at the Suburb C property in August 2009. This is the date from which he deposes at [6(c)] that “save for the times that I was hospitalised for cancer treatment, I slept in a single bed in a separate room from the wife”. It is common ground that he moved out of the Suburb C property in 2011 and that the parties have not lived under the one roof since. In the wife’s response to the husband’s divorce application, she maintains that the date of separation is 10 May 2015.

    i)In 2010 the property at H Street, Suburb I was acquired by BB Pty Ltd as trustee of the BB Trust.

    j)BB Trust is a discretionary trust. The husband and Ms D are directors of the trustee. Ms D is the appointor of BB Trust and the husband deposes at [3] that Ms D therefore has effective control of the property.

    k)The husband says at [6(a)] that H Street, Suburb I was purchased “to enable myself and the children to move” to from the Suburb C property.

    l)On 1 September 2010 the husband’s mother passed her position as guardian or appointor of the Hathaway Trust to two of the children, Ms D Hathaway and Mr E Hathaway. On my calculation Ms D and Mr E would have been approximately 18 and 20 years respectively. Documentation for the substitution was done by the solicitor acting for the husband’s mother, a Mr Jack Cyngler.

    m)In July 2011, the husband went to live at H Street, Suburb I with some or all of the children.

    n)At the time of the hearing on 5 November:

    i)Mr E Hathaway was a tertiary student. He is married and resides in Suburb CC in a property controlled by the husband.

    ii)Ms D was also a tertiary student. She lives with the father at H Street, Suburb I.

    iii)Ms F Hathaway is a tradesperson who lives in Suburb CC.

    iv)Ms G Hathaway is studying and lives independently in Suburb O.

    o)It appears that Ms F Hathaway (21 years old) and Ms G Hathaway (18 years old) do not hold a position of control in any entity.

    p)None of the entities to which I have referred nor Ms D Hathaway and Mr E Hathaway or their younger sisters are parties to these proceedings.

19. The legal consequence of the trusts referred to above is that neither party has direct ownership or absolute control of the Suburb C property. The husband says that the two oldest children of the marriage have ultimate control by virtue of their power of appointment over the entity in which beneficial ownership of the property vests.

20. Pursuant to section 114(1)(f) of the Act, 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 an injunction relating to use and occupancy of the matrimonial home. The Suburb C property was for some years the matrimonial home. The competing applications were argued before me on the basis that both the husband and the wife have standing to seek the orders they seek about the Suburb C property by virtue of that property being the matrimonial home.

21. Counsel for the husband stops short of saying that the husband and the wife have no beneficial interest in the Suburb C property, he merely reiterates the husband’s evidence about effective control/ownership reposing in Mr E and Ms D as a result of their positions as guardians of a trust.

22. Counsel for the husband did contradict the assertion that all property interests identified by the wife at [15], including the Suburb C property, were acquired during the marriage through the efforts of the husband and the wife and funded by them.

23. Apart from the historical context above, I have taken the following matters into account when deciding whether it is “proper” to make orders in the terms sought by the wife, by the husband or perhaps some other order.

24. The wife’s application initiating proceedings seeks a final alteration of property interests as 55 per cent to her and 45 per cent to the husband. She does not specify that she seeks a transfer to herself of the Suburb C property but counsel for the wife stated that the wife seeks the Suburb C property as part of any alteration of property interests between herself and the husband. The alteration of property interests sought by the husband in his response is wholly unspecified. He seeks permission to “further particularise the Orders he seeks upon completion for discovery and the obtaining of valuations”.[2]

    [2] 2 [2].

25. The husband deposes that in 2009 his expressed intention was eventually to move back in to the Suburb C property and to make that property a home for himself and the children. He deposes that it was his expressed intention that he do so when the wife relocated to a property she owns in Suburb K which was in the process of renovation. The wife’s case is that renovations are not complete. It does not appear, however, that the wife conceded that the Suburb C property would not be retained or occupied by her into the future.

26. The husband’s case before me is that the wife has had a very long time in which to complete renovations to the Suburb K property and to take up residence there so she should go and do so now. Furthermore, that the wife has caused or permitted the Suburb C property to fall into a dishevelled state and disrepair. The husband contends that the wife should be excluded from that property in favour of him so that he can restore it to a habitable state.

27. Today, Mr Lambros (for the husband) described the basis of the husband’s application on 5 November 2015 to exclude the wife was that the husband required to move back into the Suburb C property because his living arrangements at H Street, Suburb I were temporary and unsatisfactory. That is not my recollection. Mr Sweeney, who appeared for the husband on 5 November, described the husband’s current residence as sufficient accommodation for the husband and Ms D.

28. In terms of the most recent history relevant to the relief sought, the wife organised a holiday to Italy departing Australia on 29 August 2015. She says that the husband was aware of her trip. The wife deposes:

    [45]. I was served with divorce papers on the day before [her departure] being 28^th August 2015.

    [46]. I was advised by a friend of mine that [Mr Hathaway] had removed my motor vehicle from the [Suburb C property] and left it on the street. On 9 September 2015 my friend also observed people at the property who were packing up my belongings and they indicated that [Mr Hathaway] had authorised them to do so to rent out the property.

    [47]. This had not been discussed with me prior to my departure.

    [48]. I emailed him after I discovered the car had been moved. He replied that he had done so (sic) that he could move his car out of the driveway, but never mentioned that he was moving me out of the property.

29. The wife provides a narrative of negotiations between her lawyers and the lawyers for the husband commencing with her lawyer’s letter on 10 September 2015 requesting that the husband desist from removing her items from the property.

30. The wife deposes at [51] and [52], and the husband does not deny, that

    On 16th September, 2015, I instructed my solicitors to write to [Mr Hathaway’s] solicitors again asking for discovery and that I would not be moving from my home at [B Street].

    Upon my return from [Europe] on 5 October, 2015 I returned to the property at [B Street]. The locks had been changed but I was able to access the back and let myself in. During my absence, the stove had been removed, along with the shower, the kitchen plumbing had been removed, the hot water service was turned off, and all my belongings were boxed and bagged.

1. The wife deposes at [53] that

   I stayed the night and early the next morning I was confronted by [Mr X], a workmate of [Mr Hathaway’s], and another lady with a large dog. I asked [Mr X] and the lady to leave. [Mr X] was arguing with me and holding in one hand two pairs of gardening scissors, and in the other hand coffee, and he threated (sic) to walk right through me. He spilt coffee on me and pushed me. He refused to leave saying that [Mr Hathaway] had told him to do the gardening. He said he had brought the dog as he knew this would happen. [Mr Hathaway] knows that I am scared of dogs. I then called the police who attended at the property. The police told them to leave, and it took around 20 minutes for them to finally leave.

   The husband responds at [30(k)] that he was informed by workers who attended that “the circumstances were not as deposed by the wife” but does not elaborate.

2. The wife sent the husband an email directly asking her to restore her belongings to the Suburb C property. She deposes at [55] that

   My solicitors then received a letter from [Mr Hathaway’s] solicitor demanding that I vacate the property by 6pm 7 October 2015 with a signed letter from my children that they in effect owned the property and were demanding that I leave the property. I do not intend on leaving the property but am very concerned for my welfare whilst I remain, hence this Application. It also alleges that I have a partner (which I do not) and that this partner (who is a friend not a partner) has moved in which he has not.

   The husband’s response at [30(l)] is confined to restating that the wife has “been with [Mr Y] for several years and he has regularly stayed in the same premises with her”.

3. The husband deposes, by way of support for his actions, that in September 2015 he discussed the state of the Suburb C property with Ms D and Mr E and the three of them agreed that he (the husband) should take possession of the property for the purpose of putting it into a better state of repair and to live in it. This is corroborated by the children upon whose evidence the husband relies. It is apparent, however, that no one told the wife about what the husband and older children had agreed between themselves.

4. In response to the wife’s assertions that the husband’s action to remove her belongings from the Suburb C property in her absence amounted to financial and emotional abuse, the husband deposes that:

   [18] … On 6 October2015 a letter was forwarded by my solicitors to the wife’s solicitor to which was attached an Authority signed by both [Mr E] and [Ms D] as the effective owners of the property, to the effect that they had authorised me to enter, occupy and use the property. The Authority further stated that they had not authorised their mother to enter, occupy or use the property. Finally in this Authority [Mr E] and [Ms D] stated as follows:

   “Our father should be allowed full occupancy rights and has been authorised by us to clean up, repair and refurbish the property”.

5. The children’s statement that they had not authorised the wife to enter, occupy or use the Suburb C property must be taken in the context that she went into occupation in the 1990s, many years prior to their ascendency as guardians of the trust. Also, their statement that “[w]e have not authorised our mother [Ms Hathaway] to enter into, occupy or use the property”, appears to be contradicted by the evidence of the husband at [12] that “[f]rom 8 September 2010 until September of 2015, both [Ms D] and [Mr E] agreed to [the Suburb C property] being occupied by the family and then by the wife”.

6. It is not surprising that the husband, Ms D and Mr E caused the wife’s belongings to be reinstated at the Suburb C property shortly after the wife’s return to Melbourne. The hearing on 5 November 2015 was concluded on the basis that no further steps would be taken by the husband to disturb the wife’s use and occupation of the Suburb C property pending me delivering this decision.

7. As to whether the injunctions sought should be made now, the husband disputes that the wife had actually been living at or been in occupation of the Suburb C property as at September 2015. It is common ground that the family occupied the Suburb C property as the family home from the time it was acquired in the mid-1990s and that the wife remained in occupation when the husband and children moved out in 2010 or 2011.

8. The husband deposes at [14] to believing that “in or about September of 2015 the wife was living at [Suburb K]”. More equivocally, the husband deposes [15(p)] that “it is my understanding from my son that the wife has previously lived in the [Suburb K] property and can return to occupy that property”. Notably, Mr E does not give that evidence in his affidavit.

9. On 5 November, Mr Sweeney of counsel (for the husband) stated that his client had believed that the Suburb C property had been vacant for much of the period since 2012. The wife deposes at [24] to having remained living at the Suburb C property since 1997.

10. Interestingly, each of Mr E and Ms D depose:

    [4]. My mother has been primarily in occupation of the [Suburb Q] property from the time that my father vacated it in around mid-July 2011 when he commenced living at [H Street, Suburb I] together with myself and my sisters.

    [5]. I attended at the [Suburb C] property approximately one month ago to collect some personal belongings. My mother was not present. The house was in an absolute shambolic state. I have seen the photos of the property taken by my father and confirm they reflect the state of that property.

11. Notably each child says that the wife has been primarily in occupation of the Suburb C property from 2011. They each affirmed their affidavits on 30 October 2015 so the fact that the wife was not in attendance when they attended the Suburb C property approximately a month prior is not surprising given that the wife did not arrive back in Australia until 5 October 2015. Insofar as the children observed the property to be in a shambolic state a month prior to affirming their evidence on 30 October 2015, the husband’s evidence is that in September 2015 he had employed workmen to remove rubbish and debris from the property and attempted to clean up the property.

12. Through his counsel, the husband stated he does not know for certain who has been in occupation of the Suburb C property. That is curious as he and Ms D live only 50 or so houses away from the Suburb C property. Presumably he has been able to, if not required to, pass the Suburb C property regularly and, from that perspective, would have been able to gauge whether or not it was being occupied by anyone.

13. The wife clearly had personal belongings and effects at the Suburb C property because the husband removed them after she left Australia. The fact that the husband waited until the wife had gone overseas before attempting to re-enter and take control the Suburb C property is, at best, suggestive of him wanting the wife out of the way whilst he did so and, at worst, acting with subterfuge.

14. Mr Sweeney (for the husband) submitted that the clincher or determinative indicator of the wife not having resided at the Suburb C property prior to her trip to Italy is that that husband deposes at [14] that on 17 July 2015 the wife’s lawyers wrote to the husband’s lawyers referring to the property at J Street, Suburb K as “her primary residence” and that “she has been improving the real property where she resides at J Street, Suburb K for some years”. It is a good point but not, in my view, conclusive of anything in this proceeding. My impression overall is that those statements were made with an eye towards the adverse taxation treatment of any increased capital value of the property at J Street, Suburb K referrable to periods for which the wife (or the parties) are unable to claim that property as having been the wife’s primary place of residence. Given the number of real properties over which the wife and the entities have control, it follows that the wife will have use and occupation or control of more than one property. She deposes at [42] to having furniture at the Suburb C property and excess furniture at J Street, Suburb K and “otherwise retained my belongings at [B Street]”. That is plausible evidence. My impression is that the wife has a foot in both the Suburb C property and the Suburb K property but it does not follow, on the particular facts of this case, that it is “proper” within the meaning of s 114(1)(f) of the Act to confine the wife to use and occupation of one property only.

15. Doing the best I can with the conflicting evidence which I have, I am satisfied that it is more likely than not that the wife was at all material times using the Suburb C property to live in and was in occupation of it. That is not to say that it is habitable by any reasonable standard. Indeed, it looks like a terrible mess but that does not preclude the wife using it as a place to sleep and a place to live.

16. Under section 114(1)(f) of the Act, I am required to make a decision or grant an injunction that I consider proper with respect to the matter to which the proceedings relate, that is, the property. When I balance the respective positions of the husband and the wife vis-à-vis the Suburb C property, I appreciate that the husband’s position has some merit in terms of tidying up loose ends and putting the property in a better state of repair than the wife left it. The most favourable complexion I can put on his behaviour is that he is a newcomer and late starter to this activity at the Suburb C property which, I am satisfied, has been primarily occupied by the wife for the last five years without any complaint by anyone until she was about to leave or had left Australia in August 2016. A less favourable, but no less accurate, description is that the husband acted brashly and opportunistically to try to gain an advantage for himself at the cost of the wife whilst she was not in the jurisdiction to defend her position. Either way, the husband deserves credit for his subsequent agreement to reinstate the wife at the Suburb C property and await a determination from the court about use and occupation of the property.

17. Looking forward, I am satisfied that there is potentially more harm that will flow from excluding the wife from the Suburb C property, prior to an orderly and final determination of her entitlement to that property, than there is benefit to be gained from enabling the husband to put the premises in a better condition and to reside there himself. That said, I am looking at this as a short extension of a situation which has been in place for the last five years so it is also proper and fair to lend as much momentum to resolution of the case as is possible.

18. This case exhibits all the hallmarks of a case of potential complexity. I am far from having a clear and accurate view of anything. Mr Sweeney (for the husband) was unable to say whether or not his client’s case would be that the Suburb C property is a financial interest to be considered divisible between the husband and the wife. This is notwithstanding my impression that the husband does not dispute that the assets of the Hathaway Trust and all the other property interests described by the wife at [15(a)] to [15(w)] of her affidavit have been accumulated and funded by the parties during the marriage and without the benefit of injections of capital or income from others. How and on what basis the assets came to be held as they are is a matter which the parties’ lawyers have not started to unravel.

19. Mr Dickson QC (for the wife) submitted that, whilst the documents provided by way of limited discovery substantiate the husband’s assertion that two of the parties four children have control over the trusts which hold title to some of the financial interests, their control of entities is not determinative of the entitlement of the husband and the wife in this court. The husband is currently in control of the trustee of the Hathaway Trust. He seeks to rely on the fact that the children have power to remove the trustee (in effect the husband) as indicative of the trusts not being under his ultimate control. However, there is force in Mr Dickson’s submission that the children’s control is somewhat remote. Ms D and Mr E Hathaway have power to remove the trustee but there is no suggestion by the husband or by either of them that they have or will move to do so. In fact, Ms D and Mr E Hathaway appear to be wholly supportive of the husband to an extent that is inconsistent with seeking to exclude him from anything.

20. Mr Sweeney (for the husband) conceded that the argument about control of the Hathaway Trust is an argument for a later date.

21. The husband has not made out a case in which it would be proper for me to order that the wife be excluded from the property and that he take over the property. My impression is that the relief sought by the husband and opposed by the wife may, if granted, do an injustice to the wife which would not necessarily be able to be corrected on a final determination. I consider it preferable to make an order akin to a holding order. This matter is not going to get better the longer it waits for a hearing. It is regrettable that my decision in this particular matter has been delayed but, henceforth, I would be prepared to accord the matter priority.

22. Subject to one rider, I will accede to the wife’s application for sole use and occupation of the Suburb C property and dismiss the husband’s application that the wife be excluded therefrom. I am satisfied that it is proper within the meaning of s 114(1) of the Act for me to do so.

23. The rider to the relief which I grant the wife is that the parties should work towards a final resolution at the earliest opportunity. I will accord the matter an early first day of hearing. If I subsequently form the view that there is undue delay on the party of one or both parties, I may reconsider the order I make today.

24. In according this matter priority, I am pushing back cases which have been waiting their turn. However, my impression is that if the parties are not compelled to concentrate on a final hearing they will occupy themselves with a series of interim applications or skirmishes which will be costly for the parties financially, wearing emotionally for the parties and the children of the marriage and consume a great deal of court time.

25. There will be a first day of hearing listed before me at 9.00 am on 24 August 2016.

26. For the above reasons, I make orders pronounced.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 June 2016.

Legal Associate:

Date: 1 August 2016.