Kay and Kay and Ors - [2011] FMCAfam 1075

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAY & KAY & ORS

[2011] FMCAfam 1075

FAMILY LAW – Interim orders – application for exclusive occupation of former matrimonial home – where husband obtained order from State Magistrates Court excluding wife from the home – where order obtained by husband was unjustifiable in law – wife permitted to resume residing in home.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules2001
Federal Magistrates Court Regulations

Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Fedele (1986) FLC 91-744

Applicant:

MS KAY

First Respondent:

MR P KAY

Second Respondent:

[W] PTY LTD

Third Respondent:

[KAY] FAMILY TRUST

Fourth Respondent:

MR D KAY

File Number:

MLC 8118 of 2011

Judgment of:

Walters FM

Hearing date:

27 September 2011

Date of Last Submission:

27 September 2011

Delivered at:

Melbourne

Delivered on:

27 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr P Testart

Solicitors for the Applicant:

SMR Legal

Counsel for the Respondent:

Mr Meehan

Solicitors for the Respondent:

Riordan Legal

ORDERS

The matter be adjourned to:
(a)10 October 2011 at 10.00 am for interim hearing (with an estimated hearing time of 4-5 hours); and
(b)on a date to be advised in 2012 at 10.00 am for final hearing (with an estimated hearing time of 3 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The husband and the respondents do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.
All parties’ costs be reserved.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
There otherwise be orders, some by consent and some not by consent, in terms of the Minute of Orders & Directions signed by or on behalf of the parties and dated 28 September 2011 (“the Minute”).

IT IS DIRECTED THAT:

The Minute be placed upon the court file.
The solicitors for the wife do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, hearing, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8118 of 2011

MS KAY

Applicant

And

MR P KAY

First Respondent

[W] PTY LTD

Second Respondent

[KAY] FAMILY TRUST

Third Respondent

MR D KAY

Fourth Respondent

REASONS FOR JUDGMENT

(Ex tempore – although revised to repair formal or grammatical errors, or awkward phraseology)

I have made all the comments that I am minded to make about the circumstances in which the wife was unfairly and unjustly excluded from the home as a result of the extraordinary application for an intervention order made by the husband, being the application comprising annexure PDK3 to the affidavit of the husband sworn

22 September 2011. I cannot know how the husband managed to persuade a State Magistrate to make the order that was made on

8 March 2011, but the fact of the matter is that the order was made. The effect of the husband’s actions has been to fragment a previously intact family, at least from the point of view of the children, and ultimately to separate siblings. The husband’s behaviour in applying for and obtaining the orders that he did at that time was reprehensible.
Nevertheless, I am confronted with a factual situation that cannot be ignored. The intervention orders were obtained by the parties some six months ago at least. I take into account the matters that the wife has raised in her affidavit, and the importance (from her point of view) of regaining access to the home for herself and for the parties’ daughter, [X]. There is much conflict between the parties’ versions of the evidence as to the practicality of the husband being able to continue working on the property if he does not live in the home. He and his family members have clearly instructed Mr Meehan and Mr Faram to press every conceivable argument as to why the husband should not be excluded from a house which, in my opinion, it is completely unnecessary for him to physically occupy in order to continue to run the [omitted] business.
I am convinced that if (and by way of example only) the home had burnt down, the husband and his family would have been able put in place arrangements within 24 hours to enable the business to continue. Of that, I have no doubt. But the position they have adopted in this Court is to argue as forcefully as they can that every option that does not involve the husband living in the house is too difficult, and that no alternative is suitable. An attitude of that nature reflects poorly on them as litigants, and as the father and grandparents of two children (one of whom is an adult, of course) with differing but real needs at this time of their lives. I find that it is an unreasonable attitude, and comprises bullying behaviour on their part.
Nevertheless, I am not here to punish one side or reward the other. I am here to exercise my discretion according to law, and to make orders that are appropriate in all the circumstances.
The law in relation to orders for exclusive occupation is well known. The considerations that might be considered appropriate are summarised in the decisions of the Full Court in Davis (1976) FLC 90-062, Davis (1983) FLC 91-319 and Fedele (1986) FLC 91-744.[1]
[1] In Davis (1976) FLC 90-062, the Full Court said (at page 75,309):
In Davis (1983), at page 78-170, the Full Court refers to a passage from the decision of Lindenmayer J in the unreported case of Price. The relevant part of that passage is as follows:
All that is necessary, it seems, is that the court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.
That is the test that the court must apply when determining whether or not to exclude one party or the other from a home where both are currently living under the one roof. It has been held, however, that there can be no distinction drawn in law between a situation in which one party has already left the home and now seeks to return to it (on the one hand) and a situation in which both parties are currently living in the home at the time of the hearing (on the other hand).
After the above passage, the Full Court in Davis (1983) referred to certain findings that had been made by the trial judge in that case. Those findings were that the wife’s present accommodation was less than adequate, that the husband’s conduct was preposterous, that pursuant to the order the children will be housed in less suitable accommodation than might otherwise have been available, and that the conflict between the parties was such the wife could tolerate it no longer and left the home. Such findings illustrate the type of behaviour, actions and factors that a court might be minded to consider in an application for exclusive occupation.
There are other factors, of course, such as the practicality of the competing arrangements.
It is clear in the present case that, for the reasons set out in the wife’s affidavit, her present accommodation is less than adequate. Her present accommodation is also uncertain and insecure.
It is also clear, and I find on a balance of probabilities on the basis of the evidence now before me (in particular the application for an intervention order filed by the husband), that the husband's behaviour was preposterous.
As a result of the arrangements that the husband caused to be put in place, both children are now housed in less suitable accommodation than would otherwise have been the case: in the case of [Y], because he should have been entitled to have his mother (who had previously been his principal caregiver) available to assist him in this difficult academic year for him; and in [X]’s case, because she did not need to have the disruption in her life that followed from what I have found to be the preposterous behaviour of the husband.
The decisions in the two Davis cases were discussed by the Full Court in Fedele. In essence, the Full Court in Fedele reaffirmed the type of approach that Lindenmayer J had spoken about in the passage to which I have referred above.
The difficulty confronting the Court in this matter is that there is competing evidence before it as to the need for the husband to be present at the [business] at all times to maintain the property and its profitability in the ways about which Mr Meehan and Mr Faram have spoken. Given the time that has passed since the wife left the home, and having regard to the possible impact on [Y], it is difficult to conclude that the most appropriate course of action is to exclude the husband from the house – even though I have little doubt that he could make appropriate arrangements to accommodate himself elsewhere if he were minded to do so. But he is not minded to do that, and he and his family have elected instead to erect as many barriers to such a course of action as they can.
I need then to look at what orders might be considered proper and just with respect to this subject. The first and most obvious consideration is that the orders that were made on the husband’s application to the State Magistrates’ Court on 8 March 2011 should probably never have been made.
The wife was initially quite comfortable with the proposition that she should be able to share the home with the husband, and her affidavit reveals that fact. Certainly, she applied for and obtained an intervention order against him, but her primary concern was that he should not be permitted to approach, intimidate or assault her.
Both parties argue that they now need to occupy the home, and there are merits in each party's argument. There are also important reasons to support both [Y] and [X] living in the home. There are strong arguments to the effect that the husband's behaviour towards the wife which led to the granting of the intervention order which she obtained could comfortably justify his expulsion from the home, but I am conscious that the wife did not an initially seek that this should occur. On the other hand, even giving full weight to the complaints made by the husband in his application for an intervention order, the wife has done nothing that would have justified or would now justify her expulsion from the home.
In all the circumstances, I am certainly not persuaded that it is impossible or intolerable for these parties to continue in co-occupation of the house with each other. Nor do I regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together. Indeed, in the unusual circumstances now before me I find that it is reasonable, sensible and practicable to expect the parties, and their children, to share the home with each other.
I propose, therefore, to restrain the husband from preventing the wife from reoccupying the home and continuing to live there, and I will make the same order in respect of [X]. I will be asking Mr Testart to draft the appropriate orders.
The husband can continue to live in the house if he wishes to do so. Clearly, [Y] should continue to live in the house, and [X] can live in the house if she wishes to do so.
I have indicated that I will make an order in relation to [Y] spending time with the wife, and that will avoid any jurisdictional issue – as

Mr Meehan has properly conceded.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Walters FM

Date: 11 October 2011

The criteria for the exercise of the power (to make an order for exclusive occupation) ... 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.
In Davis (1983) FLC 91-319 the Full Court cited with approval the following passage from a previous unreported decision of Lindenmayer J in Price (19 July 1982):
... it is no longer necessary that (an applicant for an order for exclusive occupation) show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.
The Full Court in Davis (1983) also emphasised (see page 78,171) that there can be no distinction drawn in law between a situation in which one party has already left the home and now seeks to return to it (on the one hand) and a situation in which both parties are currently living in the home at the time of the hearing of the application (on the other hand).
In Fedele (1986) FLC 91-744, the Full Court said (at page 75,431) that the various reported Full Court cases dealing with exclusive occupation of a former matrimonial home contain useful guidelines for the assistance of trial judges in the exercise of their discretion, but that they –
... should be treated as guidelines only to assist in the proper exercise of the important discretion (given under section 114 of the Family Law Act). They should not be seen as laying down a fixed list of criteria which must be established for the application to be successful. The judge is required to exercise his own discretion in the matter, but no doubt in the proper exercise of that discretion he will be guided by assistance given to him in authoritative judgments in (the Full Court).