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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HOWARTH and OLIVER

Details

AGLC: HOWARTH and OLIVER [2022] FCWA 1
Case: [2022] FCWA 1
Decision Date

CaseChat Overview and Summary

The case of Howarth and Oliver concerns the division of property between the parties, with a focus on the exclusive occupation of the former matrimonial home. The matter was heard in the Family Court of Western Australia and the decision was delivered by Duncanson J on 13 January 2022. The central issue in this interim application was whether the wife should have exclusive occupation of the former matrimonial home, known as the Suburb A property. Both parties sought exclusive occupation of the property and the wife also sought an injunction to restrain the husband from entering the property. The husband filed an application seeking read-only access to the accounting files of a company associated with the wife, and the wife sought to limit the disclosure to wage printouts for family members employed by the company.

The court considered the balance of convenience in favour of the wife having exclusive occupation of the Suburb A property. Factors taken into account included the health issues of both parties, the presence of the wife's youngest child and mother in the property, the financial capacity of both parties, and the wife's maintenance of the property since separation. The court concluded that the balance of convenience favoured the wife remaining in the property, and that it was proper to make an order for exclusive occupation in her favour. The court also determined that the husband should be granted read-only access to the company's accounting files, as sought.

The final orders made by the court include that the wife have exclusive use and occupation of the Suburb A property, with the husband delivering up keys and removing personal items. The wife is required to pay the mortgage repayments, rates, insurances, and utilities in respect of the property. An injunction is granted to restrain the husband from entering the property without the wife's consent. The wife must also provide the husband with read-only access to the company's accounting files. All other interlocutory applications and responses were dismissed.

Orders