Maddigan and Maddigan

[2008] FamCA 203

FAMILY COURT OF AUSTRALIA

MADDIGAN & MADDIGAN [2008] FamCA 203

FAMILY LAW – Interim – Consent orders

Family Law Act 1975 (Cth)

Davis v Davis (1976) FLC 90-062
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627

APPLICANT: MS MADDIGAN

RESPONDENT: MR MADDIGAN

FILE NUMBER: MLC 1895 of 2008

DATE DELIVERED: 26 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 26 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CURTAIN

SOLICITOR FOR THE APPLICANT: AUGHTERSONS

COUNSEL FOR THE RESPONDENT: MS CURTIS

SOLICITOR FOR THE RESPONDENT: JANE CURTIS & ASSOCIATES

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the applicant wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the details of the rental properties in P be marked as Exhibit “B” and remain on the court file.

4. That by 4.00pm on 17 April 2008, the husband vacate the real property at P2.

5. That from 4.00pm on 17 April 2008 until further order, the wife have exclusive occupancy of the real property.

6. That notwithstanding paragraph 5 of these orders, the husband have liberty to moor the boat at the real property and have reasonable access to it.

7. That the husband and the wife do all things necessary including signing any document to enable the draw down of $1000 against the Citibank Ready Credit line of credit for the purposes of contributing towards the husband’s rental bond and moving expenses such steps to be all taken by no later than 4 April 2008.

8. That the wife be responsible for and pay all mortgage payments in respect of the real property as and when they fall due.

9. To the extent that the wife increases any liability that might otherwise be a joint liability for the purposes of paying the mortgage, she will be responsible for such increase in the liability.

10. That the parties attend a conciliation conference at 11.00am on 6 June 2008.

11. That the parties appoint a single expert witness for the purposes of the valuation of the boat noting that in the event that there is no agreement as to the appointment, all parties are to immediately comply with the provisions of the Family Law Rules 2004.

12. That all interim applications be otherwise dismissed and removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1895 of 2008

MRS MADDIGAN

Applicant

And

MR MADDIGAN

Respondent

REASONS FOR JUDGMENT

1. This matter is being determined on an interim basis in the Judicial Duty List. 

2. Each party filed material and was represented.

3. There were a number of issues on the papers but the parties managed to resolve most of them and I was asked to make orders in terms of minutes which have now been incorporated into the interim orders.

4. Although there were a number of issues that required determination, they fitted into two categories.  The first related to the wife’s application for exclusive occupancy of the home at P2 and the second related to the question of the husband desiring to reduce the time of the children in day care by them spending it with him.

5. By way of background, the parties married in 1999 after living together from 1994.  They separated on 4 February 2007.  At that time, they were living in the home at P2. 

6. The wife is 37 years of age and in employment with a government department.  She has limited future promotional prospects because of the rural area. 

7. The husband conducts his own business.  He is 44 years of age.  Between them, the parties have very limited income resources.  Their capital resources are equally modest.

8. There are two children of the relationship C who was born in February 2002 and who is aged six years and R who was born in June 2004 and who is aged three years.

9. Two significant things have happened since the separation in early 2007.  The first is that the parties have managed to work out an arrangement in respect of the two children with whom they have shared.  The second is that although the husband has remained living in the home, it has been on the market for the best part of 12 months now and there has been no sign of a purchaser. 

10. Both of the facts to which I have just referred give rise to a dilemma.  In respect of the children, the parties have relied on assistance to care for them and all of the indications are that each party has done a very good job otherwise.  In her application filed on 3 March 2008, the wife sought a sharing arrangement.  In his response filed on 26 March 2008 the husband sought that the children live with him alone.  The status quo for the last 12 months is now reflected in the orders that the parties have reached agreement about today.

11. The husband’s view however was that the children spend too much time in day care but I have indicated that having regard to the very limited amount of material upon which I was asked to determine that issue, I was not prepared to make any order to disturb the arrangement.  Both parties seemed to be able to work out issues between themselves and I have urged them to continue talking to one another about the future of their children.

12. It is inappropriate in the circumstances for me to make any interim orders other than those about which the parties have agreed.  To change what the children have been enjoying in a longstanding arrangement would be not necessarily in their best interests particularly having regard to the fact that both parties are engaged in employment.  With the limited information I have available, I decline to make any other parenting orders.

13. The second issue related to the question of the wife’s application for exclusive occupancy.  This is not a case in which she sought to live in the house with the children for the reasons that we would normally see.  Both parties acknowledged that the house is on the market and they want it to sell as soon as possible.  It is clear that if the property does sell reasonably soon, both parties will either have to rent somewhere or alternatively, have limited resources in which to acquire another property.  It seems that the equity in the house is around the $400,000 mark and apart from a boat worth $50-100,000, there are no other assets of substance.

14. The major dilemma in relation to the house is the fact that the mortgage is not being paid on time.  The mortgage is currently up to date but only as a result of the husband drawing down from his superannuation fund.  The wife says that if she was given the opportunity to live in the home, she would make the full payment.  The husband says that whilst that may be so, she is drawing down from a line of credit to do so.  In either event, it seems that the parties do not have the income to currently pay what is a very high mortgage repayment on a weekly basis.  On what I was told and this can be seen from an Exhibit “B”, there are a number of rental properties available in the area which are immediately available and are within the parties’ financial capacities to afford.

15. If the property sold immediately therefore there would be no dilemma because both parties are content for that to occur.  The real problem in this case is firstly that the house mortgage has to be paid and the wife is offering to do so.  In so far as she is using borrowed funds to continue to make those payments, I have indicated that I will order that should she be increasing debt then she can be responsible for that increased debt.  In relation to a second issue however, it is clear that the husband has not maintained the property according to an acceptable standard of cleanliness which is obviously needed when it is on the market for sale.  The wife deposes to the fact that the parties had to engage a cleaner.  That does not auger well for a quick and easy sale. 

16. It is obvious therefore that the most logical solution to an immediate problem is for the wife to move back into the home and for she to be responsible for the totality of the mortgage payment. 

17. The husband did not necessarily strongly argue against that course of action on the basis that it is the most logical step to take.  His position was that he needed extra time but having regard to the Exhibit “B” to which I have referred, 21 days ought to be sufficient.  That coincides of course with the fact that the wife has to move out of her property which has been sold and in which she can no longer stay.  The children are accustomed to living in this house and I have indicated that in so far as the husband is not immediately able to obtain rental accommodation then he has the option of living on the boat.  Whilst it would be inappropriate for the children to live there, common sense dictates that the husband could live there and the children remain in the home until the husband sorts out his accommodation situation.

18. Having indicated to the parties that I thought that was a sensible solution, the next dilemma that arose was the fact that the husband did not have sufficient funds to organise the necessary bond and payment in advance.  It transpires that he has a mooring for the boat which he has rented out but which has not appeared in his financial statement.  He does not want to put that at risk and so he wants to use the house mooring.  Whilst that is opposed by the wife, having regard to the parlous financial situation of both parties, it makes sense for the boat to remain in that position so that it can be accessed and maintained.  The husband will need access to the boat notwithstanding the exclusive occupancy order that I propose to make.

19. To overcome the problem of the money to get the husband into his own accommodation, the wife sensibly offered to draw down $1000 which will no doubt be a joint responsibility against a line of credit and I will make orders to that effect.

20. The law in relation to exclusive occupancy has been examined a number of times by the Court[1].

    [1] See S & S [2002] FamCA 59; Davis v Davis (1976) FLC 90-062; Sieling v Sieling (1979) FLC 90-627.

21. The various cases refer to the fact that there are four factors that a court ought to take into account in exercising its discretion.  These are the means and needs of the parties, the needs of the children, the hardship to either party or the children and where it is relevant, the conduct of the parties.  It is clear that there is no onus on a party seeking an order for exclusive occupation to demonstrate irrational or wrongful behaviour.  It is my responsibility to examine the entire family’s circumstances and to determine whether on the particular facts, an exclusive occupancy order is warranted.  The underlying principle in every such case is that the court has to be satisfied that it is proper and that justice is done to both parties.

22. It is clear therefore that in this case, the means and needs of the parties would appear to favour the wife remaining in the property but not the husband.  The children’s needs are not affected in this case to a very large degree because if they are not living in the home with the wife they are living with the husband.  In that case, both parties have an opportunity to provide appropriate accommodation for the children.  In my view, there is no hardship for either party in this case because in both circumstances, the parties will end up having to sell the property and find alternative accommodation.  The most relevant issue in this case is the fact that the husband has not maintained the property to such a level that the parties could feel comfortable about it being sold as their flagship.  I think it is appropriate in the circumstances to make the observation that of the positions adopted by each party, the wife’s position is the more sensible because she is taking the greater responsibility for the protection of the assets of the parties.  In those circumstances, it is proper and in the interests of both parties and justice that the exclusive occupancy order be made.

23. I have otherwise ordered that the parties attend a conciliation conference.  There is little in this case about which there is a dispute.  Although Mr Curtain did not have comprehensive instructions in relation to the question of contribution, it is clear that there is little about which they are prepared to argue.  The major argument between them seems to be over the question of the future and that depends very much upon the question of where the children will live in the future.  That gave rise to the question of the husband’s assertion that it is the wife’s intention to move away from the P area.  Mr Curtain sensibly indicated that his client was aware of the problems that she would face in disturbing the status quo but she also faces the dilemma of being restricted in her promotional prospects.  I am satisfied however that in a case such as this, on any view, the s 75(2) component of the argument is modest.  The parties need to resolve that issue and accordingly, I have appointed a conciliation conference.

24. The parties have also indicated to me that there are no discovery issues that the solicitors cannot sort out between themselves but there is a dispute between them over the boat.  Accordingly I have ordered that a single expert witness be appointed for the valuation of that boat and in the event that the parties cannot agree on who that appointment should be, the rules will be applied rigorously so that a registrar can make an appointment in sufficient time to enable the conciliation conference to proceed in June.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 March 2008