Macleay and Glenister
[2019] FamCA 646
•12 September 2019
FAMILY COURT OF AUSTRALIA
| MACLEAY & GLENISTER | [2019] FamCA 646 |
| FAMILY LAW – INTERIM APPLICATIONS – for a raft of parenting orders – also for spousal maintenance and sole use orders. |
| Age of Majority Act 1977 (Vic) Family Law Act 1975 (Cth), ss 11F, 60CC, 72, 74, 75, 77, 114 |
| Banks & Banks [2015] FamCAFC 36 In the Marriage of Briers (1978) FLC 90‑483 In the Marriage of Redman & Redman (1987) 11 Fam LR 411 In the Marriage of Rowe (1980) 6 Fam LR 435 In the Marriage of Stein (2000) 25 Fam LR 727 In the Marriage of Stone (1976) 2 Fam LR 11,235 Marvel v Marvel (2010) 43 Fam LR 348 Perdicari & Perdicari [2019] FamCAFC 147 Redmond & Redmond [2014] FamCAFC 155 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Ms Macleay |
| RESPONDENT: | Mr Glenister |
| FILE NUMBER: | MLC | 8407 | of | 2019 |
| DATE DELIVERED: | 12 September 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 10 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Robinson |
| SOLICITOR FOR THE APPLICANT: | Blackwood Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms M. Smallwood |
| SOLICITOR FOR THE RESPONDENT: |
Orders
Paragraphs 24 and 25 of the applicant’s application for interim orders are dismissed.
The interim application for spousal maintenance is dismissed.
The interim application for an order that the applicant have sole use and occupancy of the family home is dismissed.
All interim parenting applications are referred to the Senior Registrar.
The application for hair follicle testing is dismissed.
The application for the provision of valuation evidence is refused.
Costs are reserved.
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 Macleay & Glenister 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 MELBOURNE |
FILE NUMBER: MLC 8407 of 2019
| Ms Macleay |
Applicant
And
| Mr Glenister |
Respondent
REASONS FOR JUDGMENT
Introduction
While sitting in the Judicial Duty List on 10 September 2019 I heard the contested interim applications brought by the applicant for parenting and property orders.
Mr A.G.E. Robinson of counsel who appeared for the applicant told me the mother sought orders in terms of paragraphs 1 to 25 of the interim orders set out in the applicant’s initiating application filed to commence this proceeding. Aside from paragraph 1 of the application for interim orders (the abridgment application), the other applications for interim orders addressed –
a)in paragraphs 2 to 18 parenting issues;
b)in paragraph 19 alcohol testing of the respondent;
c)in paragraph 20 the provision of a family report;
d)in paragraph 21 orders for spousal maintenance;
e)in paragraph 22 orders for sole use and occupancy;
f)in paragraph 23 orders for the provision of valuation evidence;
g)in paragraph 24 orders for financial disclosure; and
h)in paragraph 25 orders relating to mediation.
In support of her various applications brought before me the applicant relied on –
a)her affidavit made 25 July 2019;
b)her financial statement made 25 July 2019; and
c)the affidavit of Ms B affirmed 9 September 2019.
The mainstay of the applicant’s motions before me was her application for an order for sole use and occupancy of the home in which the applicant and respondent raised their two children presently aged 17 and 14. After seeking from Mr Robinson an indication of the interim applications he pressed, Mr Robinson told me his client did not press the application for financial disclosure in paragraph 24 of her application for interim orders nor did the applicant press orders for mediation at this time. All other applications were pressed.
On behalf of the respondent, Ms M.L. Smallwood of counsel submitted that the whole of the mother’s applications should be dismissed. She contended that the mother’s applications were neither urgent or genuine. Ms Smallwood made specific answer to each application in each paragraph of the applicant’s applications for interim orders. In the passages below I have addressed each.
Before going to an overview of my conclusions about these interim applications, it is necessary to recite in brief terms the essential facts, recognising that in respect of several assertions by the applicant, the respondent has denied those assertions and put forward a contrary factual scenario.
Certain factual matters emerged from the applicant’s affidavit filed in support of her interim applications. Relevantly paraphrased they were as follows –
a)the applicant is a 49 year old part-time Health Professional whose annual salary was $76,000 for the financial year ended 30 June 2018;
b)the respondent is a 55 year old Employee of several companies;
c)the applicant and respondent are parents to two boys, one 17 years old and the other 14 years old;
d)the applicant and respondent lived together for 22 years between 1996 and 2018;
e)in November 2018 they separated on a final basis;
f)they are married although she did not give the date of marriage;[1]
[1] Paragraph 39 of her affidavit
g)over summer in 2019 the applicant moved out of the family home for four weeks;
h)the applicant works night shifts;
i)the applicant has formed a new relationship with one Mr C;
j)the two children attend a school located six kilometres from their present home and travel home from school by bus;
k)the applicant commenced staying at Mr C’s house for alternative weeks from early 2019 thereby effecting her own weekabout regime in her parenting of the children;
l)the applicant asserts that the children’s performance at school is deteriorating;
m)by late July 2019 the applicant ceased her weekabout living arrangements;
n)during the marriage and since separation, the applicant and respondent deposited the salary of each into an account that the applicant controlled;
o)the applicant attends to the payment of expenses from that account pursuant to an arrangement between the applicant and the respondent;
p)the respondent pays the applicant $1,400 per week by way of supplement to her salary that is ordinarily in the vicinity of $1,000 per week;
q)the children’s schooling costs $18,000 per annum of which $17,000 is currently unpaid;
r)the applicant said she needs $50,000 for anticipated legal fees;
s)the applicant asserted that in 2004 she wanted to study for a higher qualification but decided against that; and
t)she said she did not have a good understanding of the assets she and the respondent owned nor the liabilities she and the respondent owed, yet she estimated their net asset position to be over $7.5m with superannuation.
In her affidavit the wife went to great lengths to describe what was a contentious issue in this case, namely, the respondent’s alleged addiction to alcohol. The applicant relied on an affidavit of Ms B made 8 September 2019 in support of her contentions about the respondent’s alcohol addiction.
The respondent filed a response on 5 September 2019. He sought interim parenting and property orders. So far as the parenting orders were concerned he sought orders for the children to live with him and that they spend time with the applicant as agreed. So far as property orders were concerned he sought orders –
a)that he have sole use and occupation of the former matrimonial home;
b)for valuation evidence of real estate and various companies; and
c)for discovery.
The respondent swore an affidavit on 5 September 2019. The following is a distillation of the more salient matters that arose from his affidavit –
a)the respondent was and remains a director of and shareholder in D Pty Ltd, E Pty Ltd and F Pty Ltd;
b)the respondent is a beneficiary under the Glenister Family Trust;
c)the applicant is also a beneficiary under that trust;
d)that trust no longer operates and holds no assets;
e)the respondent is a member of the E Pty Ltd Superannuation Fund;
f)for the financial year ended 30 June 2018 the respondent’s taxable income was $98,919;
g)he denied the allegations made against him by the applicant in relation to excessive consumption of alcohol;
h)during 2016 he and the applicant discussed separating, she alleging that he consumed alcohol to excess and he alleging that she was a hoarder;
i)one week prior to Christmas 2018 the applicant vacated the family home for a week without notice leaving the children in his care, returning on 9 February 2019 without notice;
j)the respondent denied driving after drinking alcohol;
k)the respondent denied behaving in a hostile manner towards the applicant and instead swore in his affidavit that he and the applicant had grown apart over a number of years;
l)the respondent denied invading the privacy of the applicant in the manner alleged by her;
m)the respondent denied waking the applicant in the manner asserted by her and said instead that she elected to sleep in an open-plan area of their home and she may have had her sleep disturbed on occasions by reason of her choosing to sleep in a common area of the house;
n)the respondent swore that he had not met the applicant’s new partner;
o)he denied the assertion that he encouraged the children to speak in derogatory terms about the applicant’s new partner;
p)the respondent swore that the children reported to him that the children had been instructed by the mother to not ignore her new partner;
q)the respondent drives the children to school each day;
r)the respondent swore that he and the applicant are rarely in their home at the same time by reason of their different work schedules;
s)he exhibited a collection of photographs depicting the home in a state of dishevelment;
t)the respondent agreed that the applicant was living in the family home on a weekabout basis;
u)he said that his and the applicant’s combined deposits into their joint account has been $124,800 per annum and he said they were required to meet annual mortgage payments of $24,000 plus $18,000 in school fees each year; and
v)he said he was at a loss why school fees had not been paid.
The foregoing revealed that a very significant factual disagreement existed in this case. It will be necessary to hear and determine conflicting factual matters at trial.
It is possible to distil certain other issues from the foregoing, even recognising that many factual matters are in dispute. They include –
a)the applicant and respondent jointly pay the mortgage over their home;
b)the children are teenagers, one of whom has almost reached his majority for the purposes of the Age of Majority Act 1977 (Vic);
c)the applicant spent some time in a weekabout arrangement living away from the family;
d)the family home is and has been in a state of dishevelment;
e)the applicant’s income is close to that of the respondent’s; and
f)the respondent has provided the applicant with $1,400 per week for some time.
Synopsis
For the reasons that follow –
a)I refer to the Senior Registrar for determination all interim applications relating to parenting;
b)I dismiss the application for hair follicle testing;
c)in view of the fact that the applicant did not press the application for discovery I dismiss it;
d)in view of the fact that the applicant did not press the application for mediation I dismiss it,
e)I refuse the application for sole use and occupancy;
f)I refuse the application for interim spousal maintenance including the application for $50,000 by way of lump sum payment;
g)I refuse the application for the provision of valuation evidence; and
h)I reserve costs.
Interim parenting issues
The evidence concerning parenting is in a highly embryonic state. The evidence of matters pertinent to s 60CC(3) is next to zero. I propose to refer all parenting issues to the Senior Registrar. In any event, the children are adolescents. The 17 year old is at an age when his wishes need to be ascertained. The 14 year old is in a similar situation. It was ambitious for the applicant to expect that parenting orders would be made by a judge in the Judicial Duty List –
a)in the face of wildly divergent evidence;
b)in the absence of any evidence that addressed s 60CC(3) issues; and
c)in the absence of an 11F report at the very least.
Alcohol testing
In paragraph 19 of her initiating application the applicant sought an interim order pursuant to which the respondent subjected himself to hair alcohol testing.
The evidence of his consumption of alcohol was disputed. I was not persuaded that such an order was necessary. The respondent disputed any addiction to alcohol. The issue is at large, to be determined at a later stage.
I dismiss that application.
Evidence on interim applications
In view of the disputed nature of most of the evidence in this case, it is appropriate for me to record the state of the law governing the proper approach to be taken.
In Marvel v Marvel[2] the Full Court addressed the complications that presented themselves when on an interim hearing the court is called upon to make findings of fact on disputed evidence. The Full Court embraced the cautioning remark sounded in SS & AH[3] where it was held that findings made at an interim hearing should be made with great circumspection.
[2] (2010) 43 Fam LR 348
[3] [2010] FamCAFC 13
In Deiter v Deiter,[4] a differently constituted Full Court held that interim hearings are necessarily truncated hearings and a court must be cautious to avoid being drawn into contentious trial issues. Instead, the court should look for agreed issues, care arrangements prior to separation, current circumstances of the parties and the children and the parties’ respective proposals.
[4] [2011] FamCAFC 82
In Eaby & Speelman[5] the Full Court held that frequently the judge must do the best he or she can by weighing the probability of competing claims and assessing the likely impact on the children in the event that a controversial assertion is relied upon or rejected. The decision in Banks & Banks[6] was to like effect as was the decision in Salah & Salah.[7]
[5] [2015] FamCAFC 104
[6] [2015] FamCAFC 36
[7] (2016) 56 Fam LR 299
In Redmond & Redmond[8] the Full Court held that guidance is often provided by independent expert evidence, even where on an interim contested hearing significant disputes exist in relation to the evidence on which reliance will be placed.
[8] [2014] FamCAFC 155
It seems appropriate to adopt a cautious approach when making any determinations on all issues presently before me. That said, a few agreed facts have arisen. They are recorded above at paragraph 12.
Sole use & occupation
Both the applicant and the respondent sought orders for sole use and occupation. In my view neither is entitled to such an order. That will have the practical consequence that each will live under the one roof, largely in a manner that has been their regime for some time.
It is accepted that the relevant source of power to make an order for sole use and occupation is s 114 of the Family Law Act. The Full Court decision in In the Marriage of Davis[9] provides ample authority for the point. In that case, the Full Court held that the relevant criteria to be established are as follows –
a)the means and needs of the parties;
b)the needs of children;
c)the hardship to either party or to the children; and
d)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.
[9] (1976) 1 Fam LR 11,522
It is necessary to address each of those four elements.
The means and needs of the parties
It is first relevant to consider the means and needs of the parties. In the Marriage of Gillie,[10] Woods SJ found that the income and financial resources of the parties, presence and availability of alternative accommodation and the degree to which the home is an essential part of any business owned or run by a party forms part of the consideration of this criterion. As to means, the applicant receives her salary on a regular basis together with a regular payment of $1,400 per week. Conversely, the respondent’s annual income for the 2018 financial year was marginally greater than the applicants. Yet he meets the mortgage liability and household expenses. The liability for school fees has not been paid yet the applicant applied $25,000 from funds controlled by her towards her own legal fees.
[10] (1978) 4 Fam LR 127
As to needs, the applicant’s evidence was unconvincing in my view. Her needs are presently met in full.
Means and needs of the children
Next it was relevant to consider the needs of the children. In circumstances where there is a need to parent children of the marriage, predominant consideration for sole occupancy has been given to the party who has care and control of the children although this is not a conclusive consideration.[11] The evidence of the children’s needs revealed that they required help from their father in the evening, a time when the mother works. If he is ejected, no satisfactory proposal was advanced by the applicant about who would meet the children’s needs during the evenings.
[11] In the Marriage of Stone (1976) 2 Fam LR 11,235; In the Marriage of Gillie (1978) 4 Fam LR 127; In the Marriage of Jolly (1978) FLC 90‑458; In the Marriage of Briers (1978) FLC 90‑483; In the Marriage of Davis (1976) 1 Fam LR 11,522
Hardship on the children or either party
It then became relevant to consider whether the making of the order sought by the applicant will orchestrate hardship to the respondent or to the children. In my view, if an order for sole use and occupation is made the impact on the father and children will be adverse.
The conduct of the parties
Finally, the conduct of the parties is relevant to a consideration of sole use. For example, misconduct by one party may establish a necessity for the other party to leave. Authority has held that one party must not be ordered to leave to simply allow the other to live more peacefully. Conduct that is annoying is not sufficient to establish a need, as was held in In the Marriage of Healey.[12] The conduct must be more serious, for example, physical assaults causing fear in someone for his or her life, as was the case in In the Marriage of Wolifson.[13] In this case, there is no evidence of physical abuse although on the wife’s version of events the husband has spoken in uncharitable terms about the wife in front of the children.
[12] [1979] FLC 90‑706
[13] (1977) 3 Fam LR 11,627
It must be emphasised that the four criteria mentioned above emanating from the decision in Davis are guidelines only and are not a fixed or immutable set of mandatory requirements. That was made plain by the decisions in In the Marriage of Fedele[14] and In the Marriage of Dean.[15]
[14] (1986) 10 Fam LR 1069
[15] (1977) 2 Fam LR 11,691
It has also been held that where either party to a marriage would have an equally good basis for excluding the other, the balance of convenience may properly decide the matter especially in cases of intense disharmony between husband and wife. The holding in In the Marriage of Healy makes good that point. While it seemed the parties were in dispute, “intense disharmony” was not exhibited, bearing in mind that the test for making the order sought is an objective one, as was held in In the Marriage of Rowe.[16]
[16] (1980) 6 Fam LR 435
It must not be overlooked that the mother absented herself from the family home during the Christmas holidays late last year, returning on 9 February 2019. In addition, she has embarked upon a regime of weekabout accommodation with her new partner. The evidence about the four criteria to be satisfied in an application for sole use and occupation was conflicting. I was not persuaded that the evidence demonstrated that any one of those criteria tipped in the balance such that the father should be excluded. The evidence revealed that he has been a satisfactory carer for the children and he drives them to school each day. They are at an age where they will be to a large extent autonomous yet to the extent that they have needs, the father meets those needs and their needs as adolescents are not in such conflict with the father that he should be ejected. If anything, the reverse is more persuasive, namely, the children are in disagreement with the applicant’s new partner and if the father is ejected from the family home, the children are likely to fall into disagreement with the applicant’s new partner when he visits. The father’s counsel told me (and I accept) that the father’s financial circumstances do not enable him to continue paying the mortgage over the family home as well as paying the applicant $1,400 per week and then meeting additional rental accommodation. In my view, the proposal urged on behalf of the applicant will orchestrate considerable hardship to the father.
Further, taking specifically the element of the conduct of the parties, the applicant departed from the home to engage in the weekabout living regime with her new partner. It could not seriously be contended that such conduct could be relied on to support her application for the respondent to be excluded. In addition I was not persuaded that the evidence of the respondent’s alcohol consumption as advanced by the wife was to be accepted nor called in aid to support her contention that the respondent’s conduct warranted an order for his expulsion.
In Perdicari & Perdicari,[17] Ryan J sitting as the Full Court, provided a very recent illustration of the relevance of determining where the balance of convenience lay, citing the decision of Evatt CJ, Asche & Marshall SJJ in In the Marriage of Sieling.[18] Ryan J held that the trial judge’s application of relevant legal principles was correct.
[17] [2019] FamCAFC 147
[18](1979) 4 FamLR 713
Before me, Ms Smallwood invited me to focus on the position of the respondent in certain respects. They may be enumerated as follows –
a)the applicant bore the burden of demonstrating her entitlement to an order for her to have sole use and occupation of the family home;
b)the applicant failed to discharge that onus;
c)the applicant said nothing in her affidavit about the alternative accommodation that was available to her every second week;
d)“it’s a sad world if you get basically excluded from your own property because it’s messy”;[19]
e)no evidence was adduced by the applicant about future arrangements if the respondent were to be excluded from the family home;
f)the assertion that the children were not being cared for properly by the respondent was disputed;
g)the respondent has cared for the children since the applicant vacated the family home;
h)the application for sole use and occupation lacked quality evidence; and
i)the applicant works night shift so if the respondent is excluded, the children will have no one to care for them at night.
[19] Those were Ms Smallwood’s submissions, verbatim
I agree with Ms Smallwood on each proposition recorded immediately above.
I dismiss the applicant’s application for an order for her sole use and occupation of the family home.
Spousal maintenance
So far as the spousal maintenance claim is concerned, ultimately the issue is determined by application of the principles in s 72 and s 74 of the Family Law Act, a matter addressed by the Full Court in In the Marriage of Stein.[20] There, the Full Court (Kay, Holden and Dessau JJ) held as follows[21] –
Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support.
[20] (2000) 25 Fam LR 727
[21] Ibid (at [55])
In Hall v Hall[22] the High Court described the legislative gateway to the operation of Part VIII of the Family Law Act in relation to spousal maintenance as being s 72(1) of the Family Law Act. The High Court pointed to the power conferred by s 74(1) to make an interim order as distinct to the power conferred by s 77 to make an urgent order. Under s 77 two preconditions were required, namely, the immediate need of financial assistance and, second, it must not be practicable in the circumstances to determine immediately what orders if any should be made. Conversely, under s 74 the making of an interim order calls for satisfaction of the threshold requirement in s 72(1) plus any relevant matter in s 75(2). On that last issue the High Court affirmed the observations of the Full Court of the Family Court in In the Marriage of Redman and Redman.[23] Hence, the High Court in Hall v Hall held that in an application for an interim order under s 74 the court cannot determine the application without finding on the balance of probabilities on the evidence before it the threshold requirement of s 72(1) are met plus any relevant matters in s 75(2).
[22] (2016) 257 CLR 490
[23] (1987) 11 Fam LR 411
Section 72(1) is in the following terms –
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 relevant matter referred to in subsection 75(2).
There was no evidence of the applicant’s inability to support herself by reason of the matters in subsection (a) or (b) of s 72(1). So far as subsection (c) was concerned, I did not see evidence of a matter capable of constituting “any other adequate reason” having regard to the matters in s 75(2).
Here, the relevant issue was s 72(1). It turned on the respondent’s capacity and on an inability of the applicant to self‑support.
In support of her contentions that I should dismiss the applicant’s application for spousal maintenance Ms Smallwood invited me to focus on certain issues. They were as follows –
a)the applicant earns $78,000 per annum;
b)the respondent pays $732 per week in reduction of the mortgage debt;
c)the applicant controls the joint account from which all liabilities are met;
d)the applicant paid her solicitors $25,000 in fees yet the children’s school fees of $17,000 remain unpaid;
e)the respondent has historically paid $1,400 per week to the applicant to be expended in such manner as she chooses;
f)the application for payment of $50,000 by way of lump sum spousal maintenance was absurd (Ms Smallwood’s words) because there was no prior default in meeting spousal maintenance;
g)the respondent has been exemplary (her words) in meeting payment of $1,400 per week to the applicant;
h)it is not proper to order maintenance to meet legal fees;
i)if the application for sole use and occupation succeeded, the respondent will be paying on an ongoing basis $1,400 per week, $732 per week for the mortgage, $17,000 for unpaid school fees plus the cost of alternative accommodation; and
j)when aggregated annually, the respondent pays the applicant tax free about $60,000 from his annual income of $98,000.
Ms Smallwood highlighted the unacceptably vague nature of the applicant’s evidence about the composition of assets said to comprise the pool of assets available for division. She submitted I should place next to no reliance on the overall value of assets available for division as estimated by the applicant.
In my view, Ms Smallwood’s submissions are correct. I was not persuaded that the wife was entitled to an order for spousal maintenance. I dismiss the application for spousal maintenance. I do so for the following reasons –
a)the applicant earns $78,000 per annum by way of income from her work as a Health Professional;
b)she receives about $60,000 tax free from the respondent in addition to her income;
c)she gave no evidence that she incurred expenses while in the weekabout living arrangement with her new partner;
d)despite controlling the family finances she had paid $25,000 to her solicitors yet she had failed to pay her children’s school fees; and
e)conversely the respondent’s taxable income was $98,000 per annum from which he met monthly mortgage payments.
According to the authorities on spousal maintenance surveyed above, the applicant failed to demonstrate her entitlement to such an order.
I agree with Ms Smallwood’s analysis of the application in relation to $50,000.
I dismiss paragraphs 21 and 22 of the applicant’s application for interim orders.
Conclusion
The applicant did not press the applications in paragraphs 24 and 25 of her application for interim orders. Accordingly I dismiss them.
I dismiss the interim application for spousal maintenance.
I dismiss the interim application for an order that the applicant have sole use and occupancy of the family home.
I refer to the Senior Registrar all interim parenting applications.
I dismiss the application for hair follicle testing.
I refuse the application for the provision of valuation evidence.
Costs should be reserved.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 12 September 2019.
Associate:
Date: 12 September 2019
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