McINNES & McINNES

[2019] FCCA 2835

FEDERAL CIRCUIT COURT OF AUSTRALIA

McINNES & McINNES [2019] FCCA 2835

Catchwords:
FAMILY LAW – Sole occupation order sought – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79, 114.

Cases cited:

Davis & Davis (1976) FLC 90-062

Davis & Davis (1983) FLC 91-319

Page & Page (1981) FLC 91-025

Sieling & Sieling (1979) FLC 90-627

Applicant: MS MCINNES

Respondent: MR MCINNES

File Number: HBC 572 of 2019

Judgment of: Judge Baker

Hearing date: 5 September 2019

Date of Last Submission: 5 September 2019

Delivered at: Hobart

Delivered on: 6 September 2019

REPRESENTATION

Counsel for the Applicant: Michael Foster

Solicitors for the Applicant: Murdoch Clarke

Counsel for the Respondent: John Lewinski

Solicitors for the Respondent: Butler Mcintyre & Butler

ORDERS

THE COURT ORDERS THAT:

1. The wife’s interim application filed 3 July 2019 for sole use and possession of the house and land situate at Property A in Tasmania be dismissed.

2. The husbands costs of and incidental to the wife’s interim application filed 3 July 2019 be reserved.

3. This matter be adjourned to 3 December 2019 at 9.30am for mention.

4. The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on … 2019 at 9.30am.

5. That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the Court, at least 7 days before the conciliation conference, copies of:

   (a)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

   (b)a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (c)written confirmation by each party or their solicitor that:

   (i)all relevant documents have been exchanged between the parties; and

   (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

6. That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.5) (a) to (c), the Registrar is directed to contact the chambers of Judge Baker in order to urgently list the matter before Judge Baker for further directions and submissions with respect to costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 572 of 2019

MS MCINNES

Applicant

And

MR MCINNES

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. The wife seeks a sole occupation order in respect of the use and possession of the house and land situated at Property A in Tasmania.

2. The husband opposes the application.

Background

1. The parties commenced a relationship in 1992, married in 1997 and separated in March 2019. There are three children of the marriage, [X] who is 17 years old, [Y] 16 years old and [Z] who is 14 years old.

2. The husband has been living in a shed on the property, which is 27.79 ha. The property is registered in the joint names of the parties.

3. The wife is seeking a property settlement on the basis of a 70/30 division of the assets. She is not seeking to retain Property A. The husband is seeking to retain Property A and the tools and plant and equipment located at the property.

4. The basis of the wife’s claim for sole occupation of Property A, not just the matrimonial home, is that the husband commenced an affair with his new partner in 2017.  In April 2018 the parties’ son [X] saw them kissing in the kitchen of the home.

5. The wife deposed:

   The respondent’s behaviour has had a debilitating effect on me and has been and continues to be very destructive to the welfare of our children.  He talked about moving out but had taken no steps to do this. On first April my solicitors, on my instructions wrote to the respondent asking him to move off the property. He continues to live in the shed on the property, although still spending many days living elsewhere, sometimes with his partner.  Each of the children has been directly confronted by the respondent’s behaviour and the secrecy with which he surrounds all aspects of his relationship with his partner.

6. The wife further deposed that the respondent’s behaviour is damaging her health:

   When I first learned of the affair I was so ill I spent a few days in bed. I sought help from my doctor and began counselling to deal with anxiety. I was prescribed antidepressants and continue to take these. As a result of the stress and anxiety which the respondent’s behaviour is causing me I am now having significant bowel issues and I have been referred for a colonoscopy to investigate the cause. I am depressed and anxious.

7. In respect of the impact on the children, the mother deposed that the children have all suffered significantly from the respondent’s behaviour.  She asserted that [X] has a difficult relationship with him and the affair has caused him great emotional distress.  She asserted that [Y] has had to deal with the stress of being exposed to the respondent and his relationship.  In respect of [Z], she deposed:

   Her bedroom window looks directly out at the shed where he sometimes stays so she is always confronted with the fact that her father is living in the shed and staying elsewhere and at times with Ms B. From my observations this caused distress for her. Her anxiety is displayed in a skin problem which she has developed. She was very interested in (omitted) but has lost confidence in this and in 2019 refused to try out for the club representative teams.

8. The husband deposed that there are usual tensions that exist following the breakdown of the marriage. He communicates with [X] daily and usually collects him from sports training and/or work on Tuesday Thursday Friday and Saturday. He attends his sports games when he plays. They speak regularly on the telephone.

9. [Y] assists the husband at his mother’s hotel at Town C on the weekend and he travels there with him. His relationship with him is good he also communicates with him daily. He deposed that [Y] has made it clear to him that he does not have any problem with his new partner and his involvement with her. He agreed that [Y] has had recent behavioural issues at school which he is trying to talk through with him. He deposed that [Y] has moved out of home to live with his aunt and told him that his mother made him leave. He still goes with him to Town C almost every weekend and is refusing to return to live with the mother.

10. In respect of [Z], they talk and communicate, although he agrees that there is some tension. He is involved in her life and takes her to various sports and training. He deposed that none of the children have indicated to him that they do not want him to be present or involved in their lives. He deposed “on the contrary they voluntarily come to see me in the shed on average about once per week.”

11. The husband has never taken his new partner to the house or his shed and he does not intend to do so.  He has never been inside the main house since separation, without specific invitation of a child or children, and only when they have been present. He denied that he has taunted the wife by saying that she cannot make him leave and he will not leave.

12. The reason he is unable to vacate the shed is that he stays at Town C on two or three nights of a weekend when possible, but it is not realistic for him to live there. He is employed at Employer D and his normal work hours are 7:00am to 4:00pm Monday to Friday. He spends 2 to 3 nights per week in the shed, so that he can load his utility with tools equipment that he needs for employment, and so that he is also not spending too much time at his new partner’s premises, which he said she does not want.  He cannot stay at her premises on a full-time basis because she is renting, and he cannot store his tools equipment or vehicle safely at the premises. There is no garage. He is not able to afford to rent new premises.

13. The husband wants to stay at the shed on a part-time basis on two or three nights per week to enable him to attend to the livestock on the property, and to conduct general maintenance and fencing from time to time. He deposed that cannot afford to rent new premises, pending finalisation of the property settlement. The wife’s proposal that he not pay $800 per week towards the joint bills, was made only recently. Even if this enabled him to afford a rental property, there are other reasons why he wants to remain on the jointly owned property, as just discussed.

14. In respect of the shed in which the husband is living, it is approximately 35 metres away from the house. He can access the paddocks without going past the house. He would be happy for the horse float to be parked near the window, from where the shed can be seen, so as not to upset [Z], as alleged by the wife.

Relevant Law

1. The power to grant exclusive occupancy of a property to a spouse pending a determination of proceedings pursuant to s.79 of the Family Law Act 1975 (Cth) (‘the Act’) is to be exercised pursuant to section 114(1) of the Act. This grants the court power to grant such injunction as it considers to be proper. This is a discretionary power that should not be exercised lightly.

2. The case authorities indicate that it is a serious order to make to eject a spouse from a jointly owned home, and the discretion to do so should be exercised with caution and only after proper cause has been shown.

3. Counsel for the husband cited Sieling & Sieling.[1] At 78, 264 the Full Court stated:

   The power to grant injunctions is, of course, a discretionary power not to be exercised lightly. The court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.[2]

   [1] (1979) FLC 90-627.

   [2] Ibid 78, 264.

4. In Davis & Davis[3] the Full Court said that the criteria for the exercise of the power under the subsection are simply that the court may make such order as it thinks proper, but went on to say at page 75, 309:

   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.[4]

   [3] (1976) FLC 90-062.

   [4] Ibid 75, 309.

5. In case with the same name, Davis & Davis,[5] the Full Court held that in an application for exclusive occupation, it is not necessary for the applicant to show that it is impossible or intolerable for him or her to continuing occupation of the house, or that there has been some conduct by the other party which justifies his or her expulsion from the home. All that is necessary 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.[6]

   [5] (1983) FLC 91-319.

   [6] Page & Page (1981) FLC 91-025.

6. This is not a usual application in which a spouse is seeking sole occupation of the matrimonial home. She has sole occupation of it already. The husband is prepared to consent for the locks on the house to be changed.

7. The issue to consider is whether it is reasonable to expect the husband to move from a shed on a jointly owned property, which is 35 metres from the matrimonial home in which the wife is living.

8. There is no evidence that the husband and wife come into contact with one another.

9. The wife does not want the husband living close to her, but I consider that more than that must be shown for her to be successful.  I am not persuaded by her evidence that her health is being affected by his presence in the shed on two to three nights per week. I agree with the submission of counsel for the husband that the wife has not provided any psychological or medical evidence to corroborate her assertion. 

10. I am not persuaded by her evidence that the welfare of the children is being impacted by the husband living in the shed on two to three nights per week.  [Y] does not live on the property, the father’s evidence is that he sees [X] regularly and his evidence about [Z] is that there is tension between them, but he still is involved in her life. He is prepared to move a horse float in front of her window. 

11. The husband does not have any cause to enter the matrimonial home, so the wife has exclusive occupation of it.

12. I consider it is a serious step to eject the husband from a jointly owned property and I do not consider that proper cause has been shown.

13. I exercise my discretion not to make the order sought by the wife and to dismiss her application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Baker

Associate: 

Date: 4 October 2019