Langley and Tarelli

[2017] FamCA 446

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI [2017] FamCA 446

FAMILY LAW – PROPERTY – Interim injunctions – Where previous interim orders as to use and occupation of home by de facto wife – Where conditions of such occupation not complied with – Where enforcement action underway by mortgagee – Where de facto husband seeks property to be sold – Where appropriate to allow de facto wife to cure her default – Where in default previous orders for sale to apply.

Family Law Act 1975 (Cth) ss 114, 114(1), 114(3)

Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Langley

RESPONDENT: Mr Tarelli

INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 27 June 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 5 May 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Langley

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT: Mr David of B David & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Robertson of Robertson Solicitors

Orders

1. That within 21 days from this date the de facto wife Ms Langley do all things necessary to pay to the mortgagee of the property at B Street, Suburb C such amount as is necessary to pay out all arrears under the said mortgage and the mortgagee’s reasonable costs of enforcement proceedings to date so as to cause such enforcement proceedings to cease.

2. That in default of the de facto wife complying with the previous order by the due date or otherwise not complying with her obligations under orders made 8 July 2015 the de facto wife shall in accordance with orders made 8 July 2015 vacate the subject property and thereafter the de facto husband Mr Tarelli shall have sole use and occupation of the subject property for the purposes of sale as provided for in orders made 8 July 2015.

3. That any application for costs of the application be made by way of written submissions within 28 days from this date with any submissions in reply within a further 14 days.

4. That otherwise all interim applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli 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 PARRAMATTA

FILE NUMBER: PAC 4311  of 2014

Ms Langley

Applicant

And

Mr Tarelli

Respondent

REASONS FOR JUDGMENT 

1. The current matter for determination is an interim application in the context of long-running parenting and property proceedings in this Court.

2. Proceedings were initially commenced in the Federal Circuit Court of Australia by the de facto husband on 10 September 2014. Proceedings were transferred to this Court on 8 July 2015 on which date Judge Harman in the Federal Circuit Court made certain interim orders pending further order.

3. Relevantly, orders made on 8 of July 2015 in summary provided that the de facto wife have sole use and occupation of the property at B Street, Suburb C upon condition:

   a)that the de facto wife “forthwith commence and maintain all payments of principal and interest due in respect to the mortgage secured over the property at [B Street, Suburb C]”;

   b)that the de facto wife no later than 21 August 2015 discharge all arrears in respect to the said mortgage;

   c)that the de facto wife keep the property in a neat, fit and proper state of repair at all times.

4. It was further ordered that in the event that the wife should fail to comply with the conditions of her occupation and specifically:

   a)failed to discharge arrears as provided;

   b)fall into arrears in respect to principal and interest payments for a period of more than 10 days;

   then her right to the use and occupation of the said property shall cease and she shall vacate the property within 21 days of the date of default with the husband thereafter entitled to take occupation of that property with orders providing for an orderly sale and application of the proceeds of sale.

Context

1. The present application for determination comes before the Court by reason of an Application in a Case filed by the wife on 26 April 2017. In that application she seeks in summary the following orders:

   a)that the order made on 8 July 2015 providing for the conditions of her use and occupation of the property be discharged;

   b)that the husband pay within seven days the difference between mortgage instalments payable under the mortgage secured against the property and the sum of $470.00 per week paid by the wife since 8 July 2015;

   c)that the husband within seven days pay any principal, interest, costs, charges or penalties owing to the mortgagee arising from his failure to pay the required monthly payments for the period from 8 July 2015 to date of orders;

   d)that within 14 days the husband obtain the lowest competitive interest rate for the mortgage repayments and inform the Court as to the applicable interest rate and what reasonable steps he has taken to obtain the lowest competitive interest rate;

   e)that within seven days the  husband apply for relief to the mortgagee under financial hardship provisions of the National Credit Code requesting that mortgage repayments be changed to interest only or be suspended pending determination of property proceedings;

   f)that to comply with the previous order the husband contact a nominated officer of the mortgagee bank;

   g)that in the event that the mortgagee refuses to grant relief the husband seek to refinance the mortgage on an interest only basis;

   h)that the husband pay mortgage payments as they fall due and payable until compliance with the preceding orders.

2. The wife relies on her affidavit filed 26 April 2017 and the affidavit of her mother filed 3 May 2017.

3. The husband seeks that the wife comply with her obligations under orders of 8 July 2015 and in default the property be sold. He relies on his affidavit filed 3 May 2017.

4. The application was heard on 5 May 2017 with judgment reserved.

5. Otherwise on that day further orders were made by consent relevantly as follows:

   a)that the mother do all things necessary to permit access to the former matrimonial home at B Street, Suburb C by the appointed single expert real estate valuer for the purposes of that valuer’s physical inspection and assessment of that property at 11.00 am on Monday, 15 May 2017;

   b)that the father, Mr Tarelli, do all necessary things and sign all necessary documents so as to authorise and direct that the Proper Officer, Commonwealth Bank of Australia provide to the mother, Ms Langley, such information and documents as may be reasonably required by her in respect to Commonwealth Bank of Australia Home Loan Account …05 including the provision to the mother of such documents as she may request falling within the categories set out in the subpoena for production of documents addressed to the Commonwealth Bank of Australia filed 1 May 2017 and returnable on 5 May 2017 and in default of the father signing the requisite authority and providing that written authority to the mother within 48 hours from the date of this order, this order shall be sufficient authority for the mother to obtain the said information and documents from the Commonwealth Bank of Australia;

   c)that the return date of the subpoena for production of documents filed on 1 May 2017 directed to the Proper Officer, Commonwealth Bank of Australia be extended to Friday, 26 May 2017;

   d)that the mother inform the Proper Officer, Commonwealth Bank of Australia of the extended return date and the outstanding issues as to compliance.

6. The matter as to final parenting and property was listed for trial for seven days commencing 1 June 2017. Trial dates were vacated by reason of the mother’s outstanding appeal against the refusal of legal aid. 

7. The parties commenced cohabitation in 2012. They did not marry. They separated in February 2014 when the child was but 12 months old.

8. There is one child of the relationship D born in 2013.

9. During the relationship the parties purchased in the name of the husband the subject property for $750,000.00. The purchase price asserts the wife comprised in part $380,000.00 from her, the husband asserts $340,000.00. The wife asserts other funds were proved by her mother. A first home owner’s grant of $10,000.00 was obtained. The balance of purchase price was funded by way of mortgage advance $460,000.00 with the husband asserting $20,000.00 set aside to meet mortgage payments. It is clear that the husband by comparison to the wife has made at most a modest financial contribution to the home.

10. The wife seeks to retain the home for the accommodation of herself and the child. She has had occupation of the home now for nearly two years.

11. The wife, by reason of a caveat registered by her against the title to the property, says that in early April 2017 she received correspondence from the mortgagee asserting arrears in payments and intention to sell the security property. The wife asserts that she had no notice that the mortgage was in arrears.

12. The wife by reason of orders July 2015 paid out the then arrears of mortgage and says she met what she thought were the due and payable regular payments to the mortgagee.  Yet the mortgagee asserts arrears of about $7,500.00 in October 2016.

13. It appears that the wife was of the understanding that the mortgage would remain interest only with her weekly obligation about $470.00: as can be seen below she did not even meet that obligation. Indeed, the mortgage was interest only for a fixed period and thereafter reverted to principal and interest payments at a higher rate. A circumstance, it appears, contemplated by orders of July 2015.

14. The wife denies knowledge of the increase in the payment obligation. Yet asserts that she “negotiated” the mortgage. She complains that the mortgagee would not provide her with information as to the mortgage notwithstanding the husband asserting that he has authorised her to do so. It is clear that the wife’s former solicitors were informed of her default and the amount she was required to pay.

15. Yet the wife purported to pay some mortgage payments at the higher rate in the period from 1 July 2016 to 26 October 2016 but all of those payments were dishonoured. She paid a lump sum of $5,640.00 on 27 October 2016, $2,350.00 on 6 December 2016 and $1,880.00 on 3 January 2017.  Thereafter she has made no payments.

16. The wife asserts that the husband failed to make a hardship application to the mortgagee. It is clear that by reason of her obligation under the orders he was not required to.

17. The wife has a financial resource available to her with, it appears, funds available from her mother to meet her obligations in circumstance where she is not in employment. As at 3 June 2017 monthly payments were due in the sum of $2,791.00 ($644.00 per week): Exh “A”.

18. The husband is self-employed, he says earning about $930.00 per week. He lives in a rented property at Suburb E with his de facto partner. He pays $330.00 per week rent. He says he has no capacity to meet mortgage payments.

19. Section 114(1) of the Act provides that the Court may make such order or grant such injunction as it considers proper with respect to the property of a party to the marriage. Section 114(3) provides that the Court may grant an injunction, by interlocutory order or otherwise in any case in which it appears to the Court to be just and convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate.

20. Section 114 of the Act enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper. Discretionary though the remedy may be, it is not unfettered and must be exercised according to law (see Stanford v Stanford (2012) 247 CLR 108).

21. The wife’s application in effect seeks injunctive relief to preserve the asset pending final hearing. The husband seeks injunctive relief to enforce the orders made in July 2015.

22. It is clear that the wife has made no genuine attempt to meet her obligations under the July 2015 orders such as she asserts was her understanding of same.

23. The current arrears and add on enforcement costs of the mortgagee simply reflect her ignoring the notices received from the husband’s solicitors as to her obligations under the orders.

24. In all the circumstances it is appropriate to give her a short period to remedy the default under the mortgage to the mortgagee’s satisfaction. If not, the property is to be sold.

25. Orders will be made accordingly.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 June 2017.

Associate: 

Date:  27 June 2017