Mansfield and Mansfield (No.2) - [2017] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSFIELD & MANSFIELD (No.2)

[2017] FCCA 1117

Catchwords:
FAMILY LAW – Property and children’s proceedings – wife seeks to live in parties’ investment property pending finalisation of relocation application – property subject to mortgage and currently rented – wife seeks that husband pay recurrent expenses arising from property – husband seeks that wife pay commercial rent to occupy property – application analogous to one for interim spousal maintenance – matters to be considered – capacity of husband to pay mortgage – capacity of wife to support herself adequately – what is proper order to be made.

Legislation:

Family Law Act 1975, ss.72, 72(1), 74, 75(2), 75(3), 79, 80(1), 114(1)(b)

Cases cited:
Mansfield & Mansfield [2016] FCCA 2233
Mansfield & Mansfield (No.2) [2017] FCCA 13
Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Padget [2008] FamCAFC 23
Brown & Brown (2007) FLC 93-316
Saxena & Saxena (2006) FLC 93-268

Applicant:

MS MANSFIELD

Respondent:

MR MANSFIELD

File Number:

ADC 4119 of 2014

Judgment of:

Judge Brown

Hearing date:

18 May 2017

Date of Last Submission:

18 May 2017

Delivered at:

Adelaide

Delivered on:

26 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Jacqui Ion Pty Ltd

Counsel for the Respondent:

Mr Weil

Solicitors for the Respondent:

Scanlan Carroll Pty Ltd

ORDERS

In the event that the wife gives written notice to the husband of her intention to occupy the property known as and situate at Property E hereinafter referred to as “the Property E property” no later than close of business on 2 June 2017:

It is ordered as follows:

The parties thereafter give appropriate legal notice to the tenant of the Property E property that vacant possession of the property is required as soon as is legally possible.
Upon the Property E property becoming vacant until further or other order the wife be entitled to occupy the said property exclusively subject to the condition that she provide the sum of $180.00 per week in respect of the mortgage secured against the property to the husband and be responsible for all expenses arising in respect of the property which have hitherto been borne by the previous tenant of the property but otherwise the husband bear all other outgoings in respect of the property.
If the wife fails to give notice in terms of order one hereof her application in a case be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mansfield & Mansfield (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4119 of 2014

MS MANSFIELD

Applicant

And

MR MANSFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

This application, analogous to one for interim spousal maintenance, arises in bitterly contested proceedings relating to the division of matrimonial property and parenting arrangements. It is necessary to place the application within the context of the proceedings, which have inexorably grown in complexity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mansfield and Mansfield (No.2)

Details

AGLC: Mansfield and Mansfield (No.2) [2017] FCCA 1117
Case: [2017] FCCA 1117
Decision Date: 26 May 2017

CaseChat Overview and Summary

In *Mansfield and Mansfield (No.2)*, the dispute before Judge Brown concerned the occupation of a property. The wife sought to occupy the property, and the court was required to determine the conditions under which this occupation would be permitted.

The central legal issue was whether the wife should be granted exclusive occupation of the property, and if so, upon what terms. This involved considering the wife's intention to occupy, the practicalities of obtaining vacant possession from the existing tenant, and the financial responsibilities associated with the property during the period of exclusive occupation.

Judge Brown ordered that if the wife provided written notice of her intention to occupy the property by a specified date, she would be entitled to exclusive occupation until further order. This entitlement was conditional upon her paying $180 per week towards the mortgage and being responsible for expenses previously borne by the tenant. The husband was to bear all other outgoings. If the wife failed to provide the requisite notice, her application would be dismissed.

Orders

Orders of the court

It is ordered as follows:

The parties thereafter give appropriate legal notice to the tenant of the Property E property that vacant possession of the property is required as soon as is legally possible.

Upon the Property E property becoming vacant until further or other order the wife be entitled to occupy the said property exclusively subject to the condition that she provide the sum of $180.00 per week in respect of the mortgage secured against the property to the husband and be responsible for all expenses arising in respect of the property which have hitherto been borne by the previous tenant of the property but otherwise the husband bear all other outgoings in respect of the property.

If the wife fails to give notice in terms of order one hereof her application in a case be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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