K and K
[2003] FMCAfam 214
•20 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & K | [2003] FMCAfam 214 |
| FAMILY LAW – Children – injunction – exclusive occupation of home – wife alleges conduct of husband unbearable. MAINTENANCE OF SPOUSE – Interim – factors considered – husband pays for all groceries – wife did not work in paid employment throughout the marriage – wife aged 47 years – 23 years cohabitation. |
Family Law Act 1975, ss.68B; 72; 75(2)
Davis (1976) FLC 90-062
Page (1981) FLC 91-025
Davis (1983) FLC 91-319
Fedele (1986) FLC 91-744
| Applicant: | L J K |
| Respondent: | J K |
| File No: | PAM 1571 of 2003 |
| Delivered on: | 20 May 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 19 May 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Houghton |
| Solicitors for the Applicant: | Baker Ryrie Richards Titmarsh |
| Counsel for the Respondent: | Mr Berry |
| Solicitors for the Respondent: | McDonnell Milne Toltz |
ORDERS
The application by the wife for exclusive occupation of the former matrimonial home is dismissed.
UNTIL FURTHER ORDER the husband is to pay to the wife the sum of $120.00 per week by way of spousal maintenance, the first payment to be made on 30 May 2003.
UNTIL FURTHER ORDER the parties are restrained from further encumbering the former matrimonial home situated at and known as
12 C Street, S S in the State of New South Wales, being the whole of the land in Lot and Deposited Plan.The proceedings are transferred to the Family Court of Australia at Parramatta.
NOTED:
The value of the matrimonial property is estimated to exceed $700,000 and the Respondent does not consent to jurisdiction.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1571 of 2003
| L J K |
Applicant
And
| J K |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the wife for certain property orders. The interim orders said to be sought are an order for exclusive occupation of the former matrimonial home, an order for spousal maintenance, an order for residence of the younger children, an order that the children exercise reasonable contact with the husband and an order restraining both parties from further encumbering the former matrimonial home and from doing any acts or things and increasing the parties indebtedness to any mortgage. The respondent opposes those orders.
It is a situation where the matrimonial property has an estimated value in excess of $700,000 and the respondent does not consent to this Court exercising its jurisdiction in property proceedings and I will be transferring the proceedings to the Family Court.
Quite clearly as there are matters associated with the property proceedings, it would be inappropriate to do anything other than transfer all of the proceedings to the Family Court so that they could be heard in the one venue.
At this stage, however, the applicant wife seeks to move on the interim orders that she seeks in the application and it is the position that this Court can make interim orders on the transfer of the proceedings to the Family Court and clearly it is in the interests of the parties for me to do so.
The first order that he sought is an order that the wife have exclusive occupation of the matrimonial home in S. It was submitted by Mr Berry of counsel yesterday and I am of the view that it is appropriate to deal with this issue before dealing with issues of either spousal maintenance or interim parenting orders. It was quite clear that whether or not the respondent is required to vacate the matrimonial home would have a significant effect on the other proceedings.
Basic facts are that the applicant is some 47 years of age, the respondent is 50 years of age. The parties cohabited for about five years and were married on 9 June 1984. They separated but under the one roof in about March 2001.
There are five children of the marriage, the wife also has an adult child from a previous relationship. Some of the children of the marriage are either over the age of 18 years or are independent. There are however three younger children who are at school and in a dependent position. J is 15 years of age, M is 13 years of age, S is age 10.
The applicant deposes to the fact that she did not work during the marriage and was the primary care giver for the children. The husband is in employment and there is some dispute between the parties as to whether he is an employee of a company or whether he is in effect in business for himself.
The situation certainly is that it was the husband who maintained control of the household finances attending to grocery shopping, paying bills, buying clothes et cetera. The applicant deposes that until about 12 February this year the husband paid her the sum of $20 per day for her own purposes but she says that he said:
I'm not going to pay you any more money after that date.
The husband in his affidavit gives a different picture admitting that he pays to the wife the sum of $120 per week for her personal needs and he deposed that he covered all other expenses of the family.
The wife deposes that she is now receiving money from Centrelink in the sum of $329 per fortnight. She has no other income. She says that she has borrowed money from the children and from friends to survive financially and doesn't know what the husband spends in relation to household bills. She has made inquiries about renting in the area, intends to reside there and believes it will cost her approximately $300 a week to rent a three bedroom home.
She has filed a financial statement in which she estimates that because it is required for her own personal support an amount to the sum of $127 per week. That is out of an amount of $517 per week which includes other members of the household.
The first thing obviously which needs to be considered is the application for exclusive occupation of the former matrimonial home. It was submitted on behalf of the husband yesterday that the evidence is not sufficient to justify such an order.
The application is made pursuant to section 68B of the Family Law Act seeking an injunctive order dealing with the welfare of the children.
I will get onto the law in a minute. The evidence is, however, that the parties have been separated under the one roof for about two years now, that the husband in February of this year perhaps exacerbated the situation between them by on the wife's evidence indicating he was not going to pay her any more and the wife says that she has asked the husband to leave the house but he has refused to do so. She deposes that it is becoming unbearable to reside in the same house as the husband, alleging that he says words to her of an insulting nature, such as:
You are a slut. Have you got a new boyfriend yet? Have the children got a new step-father?
He has also made other comments in front of at least one of the children, the child S, which she says he said:
You know when you leave this house I'm not going to see the children, I'm going to have nothing to do with the children.
The wife says that she has observed S and M crying as a result of the comments that the husband has made to the wife.
The husband denies that although he gives an example of his step-son attempting to attack him which resulted in the police coming about a month ago, simultaneously with, or approximately simultaneously with, the wife deciding on his evidence that she would no longer cook and prepare meals for him.
He deposes to handling the family finances and taking a role with the children. He says that he pays the wife $120 a week. He said that as far as her expenses are concerned that he pays for all the food including the $50 allocated by her to food and he reiterates in his affidavit that he is paying her $120 per week.
He concedes there have been some heated exchanges. He alleges that the wife has on one occasion at least initiated an argument in front of the children S and M and admitted that the child M was in tears.
The application for exclusive occupancy is brought under the provisions of section 68B of the Family Law Act. It is an injunctive order and it is described as an injunction in relation to children. Basically section 68B of the Family Law Act gives the Court jurisdiction to make such order or grant such injunction as it considers appropriate for the welfare of the children, which would include an injunction for the personal protection of the child or an injunction for the personal protection of the child's parents or a person who has a residence order or a specific issue order in relation to the child. That injunction could restrain a person from entering or remaining in a place of residence or employment or education of the child or entering or remaining in a place of residence or employment or education of a parent of the child, in this case the wife.
I note from the comments in the Butterworths practice in the footnotes there is the comment:
There appear to be few decisions on section 68B and it seems likely that this reflects the lack of difficulty in applying the section rather than its lack of use.
Well, certainly the authorities relating to exclusive occupation tend to refer to section 114 injunctions or its predecessor. The decision of the Full Court of the Family Court in Davis (1976) FLC 90-062, an order had been made by the judge at first instance effectively excluding the husband from the former matrimonial home in favour of the wife and in favour of the child. The Court held that such an order should not depend merely on the balance of convenience issues and in that case it was held that there were no sufficiently cogent reasons given for excluding the husband.
In the decision in Fedele (1986) FLC 91-744, the Court looked at the needs of the children. It was established that the children were living in very cramped circumstances, the environment in which they were residing was held to be not in their best interests and the Full Court held that it was an appropriate exercise in the discretion of the Court to grant an injunctive order giving the wife and the children exclusive occupation of the former matrimonial home.
In a later decision also called Davis (1983) FLC 91-319, the Court found that the conduct of the husband was preposterous and consequently it was held that it was not reasonable or sensible or practicable for the wife and the children to continue to live with him in the former matrimonial home.
In the decision in Page (1981) FLC 91-025, the evidence established that the parties could not both live in the home. It was held that if the conduct of one of the parties has been such that a reasonable man or woman could not be expected to live with that party in the matrimonial home an injunctive order for exclusive occupation would be warranted.
What is the situation in this case? Clearly, the parties have lived on their evidence, in a situation of being more or less separated under the one roof for a period of more than two years. In the month leading up to the filing of the wife's application the situation has deteriorated with the wife claiming, although the husband denying, that the husband was not giving her any more money for her own purposes and referring to arguments and unpleasantness in front of the children. There is no allegation of violence. There is certainly allegations that the situation is tense.
Is this a sufficient reason to make an order excluding the husband from the former matrimonial home? It is certainly noteworthy that the proceedings before the Court on a final basis include an application by the wife for a final order that the parties take all necessary steps to place the former matrimonial home on the market and that the respondent husband seeks a similar order. In fairness I should say that Ms Houghton for the wife has pointed out to me that it may well be during the property proceedings, depending on the evidence available as to the husband's assets, that some different order may be sought. At this stage, however, an amended application has not been filed and the final order sought relates to the sale of the matrimonial home.
There is certainly evidence of a degree of tension in the household. There is evidence on behalf of the husband an assertion that the adult step-son B demonstrated violence towards him and the police then had to be called. There is certainly evidence of unkind and unpleasant comments. It is regrettable that some at least of these comments seemed to have taken place in the presence of the children.
It is not, however, despite the wife's assertion that it is unbearable, a situation where the husband's behaviour could be categorised as preposterous. It is not a situation where I am satisfied that it could be said to be not reasonable or sensible or practicable that the parties reside under the one roof any further for what is certainly envisaged to be a relatively limited period. It is not a situation where there is evidence which would satisfy me that the conduct of one of the parties has been such that a reasonable man or woman could not be expected to live with that party in the matrimonial home.
In short, I am not satisfied that the evidence establishes the parties cannot both live in the home for the immediate future. I am not satisfied that sufficiently cogent reasons have been advanced on the affidavits to warrant the serious step of making an order removing the respondent from the home of which he is a registered proprietor.
I propose to dismiss the application for exclusive occupation.
I turn now to the question of spousal maintenance. The application for spousal maintenance is an interim application not brought under the provisions of section 77 but under the provisions of section 72 of the Family Law Act. What the Court has to be satisfied about is the threshold test set out in section 72 which says that:
A party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if and only if that other party is unable to support herself or himself adequately whether a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; b) by reason of age or physical or mental incapacity for appropriate gainful employment; or c) for any other adequate reason having regard to any other relevant matter referred to in sub-section (75)(2).
There is certainly a factual dispute as to whether the husband is paying the wife $120 per week or not. The wife says he is not, he has not paid her any money since 12 February. He reiterates in his affidavit sworn in May that he is. Mr Berry for the husband submitted that the wife's own material did not establish a case for spousal maintenance on the basis that the husband is paying for all the groceries including the food that the wife consumes, that he is providing the money for the overall running of the family home. Indeed, that seems to be the case.
There is no evidence at this stage that the wife has attempted to seek employment although I note that she has been out of the workforce for a period in excess of 23 years on her material. She is 47 years of age, that does not make her too old to be employable but I accept the fact that she has been out of the workforce for a considerable period of time. There is no evidence as to what skills she would have but I am of the view that it would be difficult certainly in the near future for her to obtain employment.
There are three children of school age and it would appear that the wife wishes to continue her role as a parent, which again is a factor referred to in sub-section (75)(2). For her to continue that role she would only be able to obtain part-time employment. There is no evidence as to what employment she could obtain but I am satisfied that her absence from the workforce for such a prolonged period of time would make it, at least in the interim, unlikely that she would be able to obtain appropriate gainful employment.
That situation may well change when the matters comes on for final hearing, which of course will be in the Family Court and indeed any claim for spousal maintenance on a final basis should only be considered after the Court has considered what is an appropriate division of the matrimonial assets.
That said I am looking at today's situation. It is not to my mind sufficient to argue that if the applicant is able to remain in the house where groceries are provided that there is no need for her to receive any money. The amounts that she receives from Centrelink is an income tested benefit or allowance and I am of the view that it should not be taken into consideration.
It was also argued that the applicant has not established a capacity to pay on behalf of the respondent. I am of the view that there is evidence that the respondent had a capacity to pay the sum of $120 per week which he says he is still paying, although the wife's assertion was that she got $20 per day which was arbitrarily terminated on 12 February.
I am of a view therefore that the evidence allows me to find that at this stage the wife does have a need. It is not a position where she should be left with no money at all to spend on things that she would need.
I am of the view that there has been shown to be a capacity of $120 per week and a need of approximately that amount. It was put to me yesterday that an order should be made that the husband should pay to the wife at least the amount that he says that he allocates to himself but I am not of a view that that is a position that the law allows me to take. I propose to order that until further order the husband is to pay the wife the sum of $120 per week by way of spousal maintenance.
I will look at the question of the parenting orders. At this stage there is evidence by way of assertion that each of the parties has a good relationship with the child although there are allegations that hurtful comments have been made about the children or the father's relationship with the children in the course of arguments. It is no stronger than that.
I am not of a view that at this stage it is appropriate for me to make any parenting orders certainly whilst the parties are all residing in the one residence. If that situation changes, and I note it is envisaged that it will change by the applications to sell the house that both the applicant and the respondent have on, then it may well be that the question of parenting orders needs to be looked at again, but I am not of a view that it is appropriate at this stage.
I note that there is also an order sought that the parties be restrained from further encumbering the former matrimonial home and from doing any acts or things increasing the parties indebtedness to any mortgage. Mr Berry of counsel for the husband submitted that whilst he was not seeking such an order, that the Court could make such an order. It is a somewhat lukewarm endorsement but I am of a view that it is an appropriate order to be made and I propose to make that order and I propose to transfer these proceedings to the Family Court of Australia to be dealt with in that Court.
I note the value of the matrimonial property is estimated to exceed $700,000 and the respondent does not consent to jurisdiction.
I require a transcript of my reasons for this decision.
Parties should pay their own costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C.Soliman
Date: 13 June 2003