HOWARTH and OLIVER

[2022] FCWA 1

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HOWARTH and OLIVER [2022] FCWA 1

CORAM: DUNCANSON J

HEARD: 21 DECEMBER 2021

DELIVERED : 13 JANUARY 2022

FILE NO/S: [Redacted]

BETWEEN: MR HOWARTH

Applicant

AND

MS OLIVER

Respondent

Catchwords:

PROPERTY - exclusive occupation of former matrimonial home - balance of convenience - disclosure

Legislation:

Family Court Rules 2021 (WA) r 199, r 202
Family Law Act 1975 (Cth) s 114

Category: Reportable

Representation:

Counsel:

Applicant	:	Mrs T Farmer
Respondent	:	Ms A Sassella

Solicitors:

Applicant	:	Meillon & Bright
Respondent	:	Carr & Co

Case(s) referred to in decision(s):

Davis & Davis (1976) FLC 90-062

S & S [2002] FamCA 59

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Howarth and Oliver has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1The substantive proceedings concern the division of the property of the applicant husband [Mr Howarth] and the respondent wife [Ms Oliver]. At this interim stage the parties are unable to agree who should live in the former matrimonial home [known as "the [Suburb A] property"]. Both parties seek occupation and use of the Suburb A property to the exclusion of the other.

THE ORDERS SOUGHT

2On 30 November 2021 the husband filed an amended initiating application, in which he seeks final property orders including an order that the wife transfer to him her interest in the Suburb A property. By way of interim orders, the husband seeks orders including the following:

•he have exclusive occupation of the Suburb A property;

•the wife pay the home loan repayments and outgoings pertaining to the house, although in submissions his counsel said those would be paid by the husband; and

•an injunction restraining the wife from disposing of property, including that she not make any payments relating to her entities exceeding $1,000 without giving him 7 days' notice of doing so.

3The husband filed an application in a case on 1 December 2021 seeking orders in relation to valuations and relevantly an order that:

•the wife give the husband or his nominee read only user access to the [accounting] files of [Company A], which trades as [Service A].

4The wife filed a document called an amended Form 2A response to initiating application in July 2021, in which she sought a number of final orders including that she retain the Suburb A property. By way of interim orders, she sought orders including that she have sole occupation of the Suburb A property and that the husband pay half of the mortgages and outgoings.

5The wife's position is clarified in her amended response to an application in a case filed 15 December 2021 in which she seeks the following orders:

•she have exclusive use and occupation of the Suburb A property;

•the husband give up all keys and remove items;

•the husband be restrained by injunction from entering the property;

•while she occupies the property, the wife pay the [Bank A] loan repayments and outgoings; and

•the husband's applications be otherwise dismissed.

6At the hearing the issues of valuations and injunctions were not pressed. The issues for determination were exclusive occupation of the Suburb A property and disclosure.

EXCLUSIVE OCCUPATION

Background

7The husband is 62 years of age. He is a [professional]. The wife is 57 years of age. She is also a [professional]. The parties married [in] 2012 and separated on a final basis [in] 2020. The parties each have four children and a former spouse.

8In February 2011, the parties purchased the Suburb A property in their joint names. At the time of purchase, the home had approximately six bedrooms. The parties renovated the property in 2013 and added the second storey, which comprised a bathroom and additional bedrooms.

9The husband deposed that in December 2012, the parties established and registered Company A which trades as Service A. The wife deposed that the company was created in late 2010 to separate the [businesses] of the wife and her first husband.

10The parties worked together at Service A, until the husband's employment was terminated in March 2020.

11Upon separation, the parties continued to reside under one roof at the Suburb A property until September 2020.

The interim FVRO

12On 10 September 2020 the wife obtained an interim Family Violence Restraining Order ("FVRO") against the husband. This required that he vacate the Suburb A property by [September 2020].

13The wife deposed to conduct of the husband during the period when they were living separated under one roof, which included allegations of the husband appearing nude in her personal space on two occasions; leaving doors open allowing mosquitos into the house which she said exacerbated her [Condition A]; leaving all five gas burners on while he was not cooking and attempting to break into her side of the property.

14The husband objected to the FVRO on an interim and final basis. At trial [in] September 2021, the interim FVRO was dismissed.

15The husband deposed that the trial judge stated:

I'm not satisfied that the applicant [the wife] honestly apprehends, perceives, fears that unless the respondent [the husband] is restrained she will be subjected to acts of family violence, and I'm not satisfied there are objectively reasonable grounds for that apprehension in the circumstances.

16Counsel for the husband submitted the trial judge described the wife as having "deliberately exaggerated her evidence at the ex-parte hearing to obtain the family violence restraining order".

17Counsel for the wife submitted that counsel for the husband had not referred to other comments made by the trial judge, whereby the trial judge expressed concerns about the credibility and reliability of the wife and the husband, both of whom gave evidence in those proceedings.

18The wife deposed, notwithstanding that her application for a final FVRO was unsuccessful, she continues to feel physically, emotionally, and financially abused by the husband and finds him physically intimidating.

The parties' living arrangements

19The husband deposed that since leaving the Suburb A property, he has struggled to secure long-term accommodation and has lived in five private rental properties. He most recently lived in a [home] located in [Suburb B]. [In] October 2021 he was advised that the owners of the property would be terminating his lease [in] January 2022.

20The husband's youngest [child] [Child A], lived with him in the Suburb A Property on a week about basis. Counsel for the husband submitted that with five changes of residence in 12 months, it has been very difficult for the husband to provide appropriate or stable housing for that child. The husband also deposed that two of his [children] have indicated that they would live with him in the Suburb A property if he was to occupy it.

21The wife has continued to reside at the Suburb A property. The wife's youngest [child] [Child B] lives with her on a week about basis and attends [School A]. Child B either walks, or the wife drives her to school.

22The wife deposed that her mother is her dependent. The wife's mother was scheduled to undergo [an operation] [in] December 2021 and to remain in hospital until [later that month], after which it was intended she would stay with the wife during her recovery. The wife deposed she has carried out improvements to the Suburb A property since the husband left, including the replacement of wooden boards to assist in the rehabilitation of her mother.

23As well as her interest in the Suburb A property, the wife owns two residential apartments located in the same suburb as the former matrimonial home. The Suburb A property was used as cross security for the purchase of these properties.

24The husband deposed that the wife's [child] [Child C] and [their] friend live in one of the properties, a three-bedroom apartment. The wife deposed that Child C and another of her [children], [Child D], will rent the apartment and the wife uses the third bedroom as an office. The husband questioned why the wife uses that as an office when she owns and operates office space at Service A. He considered that she has alternative accommodation available to her by way of the spare bedroom or, given her income, by way of obtaining rental accommodation.

The parties' health

25Both parties have several health issues. The husband deposed to a diagnosis of [Condition B], which he says is regularly flared up due to dust in the carpets. He deposed that flooring in the Suburb A property is tiles or timber floorboards, except the corridor and laundry, and that reduces triggering of his chronic Condition B. He deposed he had not been able to secure comparable suitable accommodation and was concerned he would not be able to do so prior to [January 2022]. [Dr A], the husband's [doctor], reported as to the husband's difficulties in his rented accommodation in comparison with living in the Suburb A property.

26The husband deposed that he suffers from [Condition C], which increases the likelihood of falls, and that living in multi-level accommodation increases his risk of falls and subsequent fractures. The husband deposed that when the parties purchased the Suburb A property, it was a one level property with no stairs. He said the renovations, including the addition of the second storey, were built for the parties' four youngest children and that he and the wife continued to live and use the rooms on the ground floor. He deposed that all living areas for him are located on the ground level, and there would be no requirement for him to go to the second storey.

27The husband deposed that he had sought medical and psychological treatment for stress and anxiety and since the FVRO and subsequent stress and anxiety, his weight had increased. The Suburb A property is located close to amenities he used to frequent, such as [Lake A,] where he used to go for regular walks, the Suburb A pool and his gym located on [Road A].

28Following the husband's eviction from the Suburb A property, he was unable to take his pet dog with him. The husband misses taking the dog for daily morning walks, which he said formed an integral part of his routine. The wife feeds and cares for the dog and her own cat at the Suburb A property.

29The wife referred to the various medical conditions deposed to by the husband, including his diagnosis of Condition B. She deposed she was not aware the husband had that medical diagnosis, and the husband did not have a diagnosis of Condition C during their relationship, and hence it was not a consideration for acquiring the property.

30The wife deposed that the steps around the entrance of the property are uneven and [many years old], and the property is not ground floor accessible as stated by the husband. She deposed the nature of the entry is likely to lead to the husband to fall given his listed conditions. Counsel for the wife submitted that the Suburb A property was, in fact, "wholly unsuited" to the husband in light of his stated health concerns.

31As to her own health conditions, the wife deposed she suffers from Condition A, associated problems, and various other conditions. In 2012 and 2013, the wife had [Condition D] and underwent [surgery].

32The wife deposed that the majority of her medical conditions are exacerbated by stress. She is concerned about the impact on her health if she is required to source another property.

Financial capacity of the parties

33The wife deposed that in March 2020, the husband's employment at Company A came to an end, resulting in him bringing an unfair dismissal case. She further deposed that the matter was ultimately settled, and he was paid the sum of $70,000 over a period of six months. The husband deposed he had received medical advice that he should not return to work until October 2020.

34The wife was concerned that the husband would not be able to meet the costs associated with the Suburb A property, which is cross security for investment properties owned by her and occupied by her children and her mother, given his financial position and ailments. The Suburb A property is one of the major assets of the parties, and the wife is keen to ensure it is properly maintained and does not fall into a state of disrepair. The wife has solely paid the mortgage repayments and outgoings since separation. Counsel for the wife submitted this was the best evidence as to the parties' ability to service the property.

35On 16 December 2021, the husband filed an updated financial statement. He is the owner of and is employed by [Company B] as a [professional]. He deposed that he regularly bills between $7,000 and $10,000 per week, and he has an average weekly income of $4,200. He deposed he has the current financial means and capacity to meet all outgoings and expenses for the Suburb A property and that he has received in principle finance approval to borrow up to $1.35m. Counsel for the husband confirmed should the husband be successful in his application for exclusive use and occupation of the Suburb A property, he proposed to service the entire loan repayments and outgoings.

36The husband deposed to weekly personal expenditure of $3,844. Counsel for the wife submitted the weekly expenses and upkeep of the Suburb A property are $1,862. Counsel submitted that while the wife accepted that the husband's expenditure included his current rent, she questioned how the husband could afford the other maintenance costs associated with the Suburb A property.

37In response, counsel for the husband submitted there was no evidence before the court as to expenses for maintenance and upkeep as referred to by the wife. Counsel submitted that the wife's repair of floorboards to accommodate her mother and addition of solar heating and a deck were improvements rather than maintenance of the property.

THE LEGAL PRINCIPLES

38The Court's power to grant an injunction relating to the use or occupancy of the former matrimonial home is contained within s 114(1)(f) of the Family Law Act 1975 (Cth) ("the Act"). Such an order may be made if the Court considers it proper to do so. Section 114 provides as follows:

114 Injunctions

(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:

…

(f)an injunction relating to the use or occupancy of the matrimonial home.

39In S & S [2002] FamCA 59 the Full Court said:

38.An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

"It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

40In Davis & Davis (1976) FLC 90-062 the Full Court said at 75,309:

The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

41These considerations are not exhaustive.

42These are interim proceedings. There are limits to an interim hearing in that I cannot resolve disputed issues of fact and in these proceedings, there are many.

DISCUSSION AND CONCLUSION

43The parties are the joint registered proprietors of a very substantial home.

44The parties lived separately under one roof for a period of time. The husband described this as untenable. The wife deposed she continues to feel physically, emotionally, and financially abused by the husband and finds him physically intimidating. Both parties agree that they cannot live separately under one roof at the Suburb A property.

45In the circumstances, I am satisfied it is necessary to make an order for exclusive occupation of the Suburb A property. It follows I must consider which of the parties should occupy the Suburb A property to the exclusion of the other.

46Both parties seek an order for the transfer of the Suburb A property as a final order. Both parties assert they are in a position to meet the loan repayments and outgoings in relation to the property. To date, the wife has financially maintained the Suburb A property, which is a major asset of the parties.

47During the parties' relationship, various of their children lived with them at the Suburb A property. The wife's youngest child continues to live there on a week about basis.

48Also living with the wife at present is her mother, who she says is dependent on her at this time. It is intended that her mother, who has recently had an operation, will recuperate with her at the Suburb A property. In this regard, the wife deposed to the replacement of wooden boards in the north section of the home to enable the rehabilitation of her mother.

49Both parties have health problems. The husband's health difficulties, in particular Condition B and Condition C, have made it difficult for him to find suitable rental accommodation. The Suburb A property is also conveniently located close to the gym and pool, the use of which he says are conducive to maintaining his good health.

50The wife also has health difficulties. The Suburb A property is convenient to her, including with respect to her [places] of work and her child's school. The wife says being required to source another property would cause her stress and, in turn, exacerbate her medical conditions.

51Both parties have the means to meet the cost of alternative accommodation. The husband had rental accommodation and, although his lease was coming to an end, he had the financial means to enter into another lease for suitable accommodation. Similarly, the wife can afford to pay rent for alternative accommodation.

52In weighing the balance of convenience, I have taken into account the means and needs of the parties and the needs of the child living with the wife. I have also taken into account that the wife has financially maintained the Suburb A property to date. I can make no finding as to the conduct of the parties either prior to their separation or during the period of living separately under one roof.

53I have concluded that the balance of convenience favours the wife continuing to reside in the property. I am satisfied it is proper that the order for exclusive occupation sought by the wife should be made. It follows the wife would continue to meet the loan repayments and outgoings.

DISCLOSURE

54The parties worked together in [Service A] until the termination of the husband's employment in March 2020.

55The husband seeks an order that disclosure be provided by the wife by way of read-only user access to Company A's [accounting] account, and deposed to his concerns that the wife is paying her children and other family members to reduce her own income. He also questioned whether the wife is receiving rental income from her children and her mother.

56Counsel for the wife submitted that the wife has employed family members for in excess of 20 years. The wife proposed to provide the wage printouts for parties related to her for their period of employment with Company A to date. Counsel submitted this would adequately cover the wife's disclosure obligations.

57Counsel for the husband referred to the Family Court Rules 2021 (WA) and the disclosure obligations upon both parties. Rule 199(2) provides:

A party to a financial case…must make full and frank disclosure of the party's financial circumstances…

58Rule 202 provides:

The duty of disclosure applies to each document that -

(a)is or has been in the possession, or under the control, of party disclosing the document; and

(b)is relevant to an issue in the case.

59Counsel submitted that the documents are clearly relevant in the context of matters before the court and should be made readily available. Counsel submitted the wife had not said that the documents were not relevant or not within her possession or control.

60I am satisfied the documents are relevant and should be disclosed. I consider that an order that the read-only access to Company A's [accounting] account be provided, is proper in the circumstances.

THE PROPOSED ORDERS

61Subject to hearing from counsel, I propose to make the following orders.

1Until further order the wife have exclusive use and occupation of the [Suburb A] property;

2Within 21 days the husband do all acts and things and sign all documents necessary to, at his expense and to the extent not already complied with:

(a)deliver up to the wife or her nominee, all keys, garage or other remote controls, and alarm codes for the [Suburb A] property; and

(b)remove the items it is agreed that he is to retain from the [Suburb A] property.

3The husband be restrained and an injunction be granted restraining him, his agents or any third party acting on his behalf from accessing, entering or attending upon or within the perimeter of the [Suburb A] property without the prior written consent of the wife or in compliance with paragraph 2(b) hereof.

4Until further order and during her period of occupancy, the wife pay or cause to be paid the following in respect of the [Suburb A] property and as and when they fall due and payable:

(a)[Bank A loan account 1];

(b)[Bank A loan account 2];

(c)[Bank A loan account 3];

(d)council rates;

(e)water rates;

(f)insurances; and

(g)utilities.

5Within 14 days, the wife do all acts and things and sign all documents to make available to the husband or his nominee access to the "read-only user access" to [Company A] [accounting] files from when they were first commissioned to the current date.

6All interlocutory applications and responses be otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

13 JANUARY 2022