Menotti & Lamb

[2014] FamCA 518

FAMILY COURT OF AUSTRALIA

MENOTTI & LAMB [2014] FamCA 518

FAMILY LAW – Exclusive occupation application – Evidence controversial – Clean hands principle applied – Application dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bassett v Bassett (1975) 1 All ER 513
Davis and Davis (1976) FLC 90-062
Page v Page (1981) FLC 91-025
Scholte and Scholte [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627

APPLICANT: Ms Menotti

RESPONDENT: Mr Lamb

FILE NUMBER: ADC 465 of 2008

DATE DELIVERED: 16 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne by video link from Adelaide Registry

JUDGMENT OF: Cronin J

HEARING DATE: 11 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shaw QC

SOLICITOR FOR THE APPLICANT: Iles Selley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler

Orders

1. That paragraph 7 of the interim orders sought by the applicant in the application filed 13 May 2014 is dismissed.

2. That paragraphs 2-6 are struck out with a liberty to both parties to apply to the Honourable Justice Cronin for a relisting upon either of the following:

   (a)The filing of a further application in a case supported by affidavit; or

   (b)Certification by both parties that the matter remains unresolved and requires an interim hearing; or

   (c)Certification by one party that they require interim orders in the terms of the application struck out but the other party is refusing to cooperate in respect of the matter being relisted.

3. That the parties attend a conciliation conference on a date to be fixed with the registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Menotti & Lamb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 465  of 2008

Ms Menotti

Applicant

And

Mr Lamb

Respondent

REASONS FOR JUDGMENT

1. The discrete issue for determination in this case is whether the Court should grant an order under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to exclude a party from what was described as the “matrimonial home”. A raft of other injunctive relief was not pressed on the basis that it was said that the exclusive occupancy issue was urgent. The outstanding issues seem to me more related to discovery and consequently, I intend, with the parties’ concurrence, to strike them out giving the parties a right to reinstate them if they cannot reach some compromise. Bearing in mind what I am about to say, I would be concerned if some agreement was not reached.

2. I propose to dismiss the wife’s application for exclusive occupation; my reasons follow.

3. Ms Menotti was the applicant and Mr Lamb, the respondent.

4. The applicant and respondent were married to each other. That marriage came to an end and they divorced. In 2008, the parties began litigation in this Court but it did not proceed to a conclusion because they went back to live with each other. Their renewed relationship ended in January 2014 with the applicant leaving their jointly owned home.

5. There are two adult children of the parties’ relationship and when the applicant left the home, the children remained living with the respondent. That situation continued until late May 2014 when an altercation occurred between the respondent and his 18 year old daughter. That incident culminated in her being told to leave the home. That unpleasant incident, and some interesting descriptions of what had occurred in previous years, was encapsulated in an affidavit, no doubt sought by, and filed on behalf of, the applicant by her lawyers. This affidavit was filed presumably to attack the credit of the respondent and particularly that he was less than candid.  He swore his affidavit only days after the incident with his daughter and portrayed a picture that both adult children were happily living with him. The daughter’s affidavit has not been answered by the respondent but to the extent it was considered for this hearing, the inference must be that the respondent was not truthful about his relationship with his children. But, the matter of credit does not end with questions about the respondent. The applicant’s candour was clearly put in issue as well.

6. In his responding affidavit, the respondent pointed to a number of matters that had not been adequately or indeed at all, mentioned by the applicant about her financial position. Mrs Shaw QC for the applicant submitted that the focus of the applicant’s material was on other things relevant to the injunctive relief she was seeking. That is not an inference I would draw from what was read.

7. It is not appropriate or satisfactory to make orders on untested material. An example of the problem follows.

8. The applicant produced some bank documents that she said were not signed by her. She went further and alleged they were indeed forged by the respondent because she recognised his writing. The respondent denied on oath that he forged anything and questioned why he would so in any event because one of the documents was for the applicant’s benefit. Clearly, I cannot make any finding about the applicant’s allegation. Having so responded, the respondent then asserted that the applicant had recently forged his signature on a motor car registration of ownership form and then proceeded to dispose of the European motor vehicle which was said to be worth about $60,000.  Mr Jordan of counsel for the respondent said this evidence was led to show that the applicant had money she had not disclosed in circumstances where she was saying that she needed the home to live in. No response was provided by the applicant notwithstanding she had seen the affidavit of the respondent for over 3 weeks.

9. These matters are all significant because the order sought by the applicant, based on s 114 of the Act, requires the Court to exercise its discretion if it is satisfied that it is proper and just to do so. In language no longer used in this jurisdiction, if the applicant comes to equity seeking justice, he or she must come with clean hands.

10. Notwithstanding the able and proper submissions of both counsel, I am very reluctant to draw any inferences here about what was not responded to and what was not answered, because I consider that the Court is not being given a comprehensive picture of uncontroversial facts.

11. The proceedings were given to me to deal with by video link because the resident Adelaide judges were disqualified. The agreement to have me hear the application undoubtedly delayed matters but hopefully not by much. In the intervening period, the court file reveals a flurry of activity occurred but not much of it was referred to or helpful.

12. As the applicant’s counsel began her case, I was informed that only the exclusive occupancy case was to proceed and that the other parts of the application were to remain alive. I was to be asked to adjourn them and set another date. I declined to do that because of resource issues of the Court but also because it would most likely have been over three months between the applicant’s filing of the application for urgent injunctive relief and the determination. Urgency is a relative term but this proposed adjournment seemed very odd when the thrust of the applicant’s case was that she knew nothing about the financial position and was “concerned” as she described it, about the respondent’s potential to dispose of assets. The applicant’s affidavit began with a statement that she wanted the hearing to be ex parte because she was fearful of what the respondent might do if he found out she was making the application. Having now seen the respondent’s material and, even allowing for the fact that the evidence of both parties remains untested, the decision not to proceed on an ex parte basis was a wise one. I remind lawyers of their obligations to the Court in respect of those matters including that of putting evidence before the Court and not just the narrative expectations of their clients.

13. I return then the discrete issue.

14. The jurisdiction of the Court was not in issue. That said, to the extent that the marriage power was being asserted as the basis for substantive relief, the parties have been divorced for a long time. No issue about that was raised by the respondent. To the extent that Part VIIIAB was invoked, the applicant left that part of her application blank. The issue of jurisdiction will no doubt be considered in the future.

15. Orders sought in the substantive application have not been pleaded with any precision. To say that precision should be left until later ignores the fact that everyone in this case knows what the assets are. The applicant’s injunctive relief related to assets that she also owned. It seemed common ground that the applicant owns a property in her own right, is the joint proprietor of another with the respondent and holds directorships and shareholdings with the applicant in the only income-earning business that the parties have. It was the respondent’s complaint that the applicant had not adequately disclosed her interest in a warehouse property. Nothing about that could be gleaned from her affidavit and its reference in the financial statement was simply obliquely stated an “unknown” value. It transpires that it is the subject of Supreme Court litigation. All of this uncertainty arises in the context of an application where one of the relevant factors for the exercise of discretion concerns the financial circumstances of the parties.

16. Another issue of some controversy (according to the respondent) related to the applicant drawing funds from an account and placing them in an account of another person. The financial statement shows nowhere near the amount said to have been withdrawn. Whilst the account in the name of the other person is clearly disclosed, no reference was made in that same statement to the disposal of assets in the last 12 months. I am not in a position to make any finding as to whether the omission was deliberate (as seemed to be the respondent’s submission) or whether in the haste to seek injunctive relief, the drafting left out a number of important matters. It is troubling in this case that the applicant asserts the conduct of the respondent is not be trusted with financial matters saying that she had no understanding of the position yet she neglected to put in matters that must have been within her knowledge or control.

17. Before turning to submissions, a summary of the evidence of the parties follows.

18. The applicant said she feared the respondent would dissipate assets. Despite a search of the affidavit, nothing of any probative value supported that allegation. At its highest, the applicant said that she believed the respondent had used money because no-one else had access to the accounts. That had some significance save that she had neglected to mention the drawing mentioned earlier.

19. The parties had conducted ventures with franchises run through corporate entities. The applicant was obviously aware that those had been sold because she was with the respondent when that all occurred. She said she did not know what the respondent had done with the money. In a detailed affidavit in reply, the rhetorical question was answered. Having regard to the applicant’s corporate position, it is surprising that inquiries of other sources were not first made before the affidavit was so vaguely drawn.

20. The applicant then said that the respondent used aliases. Extraordinarily, she did not justify how that conclusion arose.  The plausible explanation given by the respondent not only answered the query but also made me wonder how the applicant could possibly say that she did not know the circumstances. That bald statement did her no credit even if the evidence remained untested.

21. The evidence supporting the exclusive occupancy order was contained in three paragraphs. I have endeavoured to read the other paragraphs of the affidavit to see if the relief sought can be justified.

22. The applicant said that because of her disability, it was difficult to secure alternative accommodation. This raises a number of issues. It seemed common ground that the applicant left the home in January and nothing in the affidavit set out why that occurred other than the following:

    In fact I left the home in January 2004 because of the threats and intimidation by the respondent in the first place.

23. Senior Counsel for the applicant referred to the affidavit of the parties’ daughter as evidence as I have earlier indicated. That affidavit which was unanswered by the respondent, made reference to what was described as a “medical incident” in which the respondent left the applicant unattended in 2005 when she was obviously badly injured. The circumstances of that incident, although raised by both the applicant and the daughter seem to me to have nothing to do with this application.

24. Similarly, the daughter’s reference to her perception of her father when she found a topless woman sleeping in her parents’ bed on one occasion and another woman sleeping in her absent brother’s bed on another occasion, was curious as to relevance. The affidavit later refers to her father’s interest “in other women” while he was in a relationship with her mother. Throughout the period since January 2014, the daughter said she stayed in the house because all of her property was there and it was the most convenient place to live. What probative value is the Court to obtain from such statements? This affidavit was drawn by a lawyer. Perhaps at some future hearing, if the affidavit is used in any way, its admissibility under ss 55 and 56 of the Evidence Act 1995 (Cth) can be shown. The daughter then referred to her father’s drunken behaviour in “more recent times” when he would get angry at her. She said she felt threatened. She then referred to the incident in which she had the falling out with her father. Ironically, that was over money. I will not descend to the detail of that incident but it clearly reflects badly on the respondent even if his daughter is an adult.

25. The daughter now no longer lives in the former home. It was also uncontroversial that she was in university but has now left her course. She said that although she was not living with her mother but rather, at an undisclosed address, she had nowhere to live. She thought her brother would continue to live in the home irrespective of whether or not her father remained there. The thrust of this evidence was apparently to show that the respondent’s statement about the family situation was untrue. He said the children and he were “happy and settled in this environment”. No doubt as this affidavit was sworn some few days after the departure of his daughter, he will explain the settled and happy life.

26. The applicant said that she had been able to obtain shared accommodation with a close friend but that could not continue and she could not “continue to reside away from my children”. In respect of that, the son does not appear to be following in his sister’s footsteps. The applicant’s position was that there was no evidence from the son. Perhaps it might be better if the children were not brought into the dispute at all. The respondent’s position was that subsequent to January 2014, the children did not have much contact with the applicant. In addition, the daughter says she is not living with the applicant. All of this evidence is therefore difficult to assess and in my view, it is not appropriate that one particular aspect, which clearly goes to credit, is used as it was being put by the applicant.

27. The evidence of the respondent was that, leaving aside the money not being comprehensively disclosed by the applicant and the vague nature of her assertions, the parties have a property which is a commercially rented premise some 25 kilometres or 55 minutes’ drive away that is unoccupied and could be used by the applicant.

28. The applicant was living in a rented property and the respondent was paying the rent. For reasons that remain unclear, he missed two payments and a notice to remedy the default was given. The applicant in the meantime unilaterally vacated those rented premises and the lease is now lost. The applicant has since been relying upon the friends about whom she gave little evidence. The respondent’s position was that there was a property into which she could move.

29. The applicant’s desire not to use that property was because it was some distance away. It was said that she was not supposed to be driving for that period of time because of her disability. The respondent’s retort was that she has no such problem. Attached to an affidavit sworn by the applicant’s solicitor was literally a bundle of medical reports from about 2005.  It was difficult to know what to do with these “reports”. The narrative in the affidavit of the solicitor simply referred to his having “reviewed certain” reports. I am unclear whether that was all of the reports but in any event, these documents went back to 2005.  Their relevance must also be questionable without some expert drawing the various facts together. For example, is the Court to interpret the hospital’s analysis? Did the person who wrote the report have the necessary qualifications to give any opinion if it could be found within the document?

30. What was unquestionable was that the applicant is impaired and has a disability. The respondent did not dispute much of that general view because he pointed to what the applicant could not do. Nothing in the evidence suggested the extent of the applicant’s impairment. Even if she was afflicted in some way, the respondent and she seem to be directors of entities. She drives a motor car but the evidence does not disclose the restrictions.

31. The submission of the applicant’s counsel was that the respondent controlled the finances and he could fund alternative accommodation. It was submitted that the applicant had been evicted (although it was later conceded that was not accurate terminology) and the respondent had been responsible for that. There was also the issue of the daughter living back with the applicant and, it was submitted, those factors justified permitting the applicant to return to the home to the exclusion of the respondent.  It was submitted that the respondent had lied in respect of the “happy family” as was evident from the daughter’s affidavit.

32. I observed that there was no spousal maintenance application before the Court if the applicant was unsuccessful and senior counsel indicated that failing agreement, the issue would be litigated. That would be unfortunate because of the costs and unnecessary waste of resources for the Court bearing in mind what I have earlier said about the injunctive relief that had initially been sought in circumstances where the evidence was sparse.

33. The respondent’s counsel submitted that the evidence did not support the submission that the respondent should be excluded. He lived near the business and there was an alternative property that he was content for the applicant to have. Senior counsel for the applicant said that the property needed to be rented to pay the mortgage encumbering it. No evidence was given about the extent of any problem there. The respondent would presumably have to rent accommodation or pay that mortgage anyway. These parties agree that there are “resources” here of over $3 million. The absence of the rent from the property presumably will have to be addressed in the property proceedings.

34. Much was made of the lack of clarity in the applicant’s financial material. It was submitted by counsel for the respondent that the Court could not be satisfied that the applicant’s position was as she had portrayed it.

35. Thus, in respect of the evidence, the various arguments highlight the controversy and there is little that is factually uncontroversial.

36. In Davis and Davis (1976) FLC 90-062, the Full Court considered the power in s 114 of the Act and its jurisdiction. The Full Court said at 75,309:

    The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. 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.

1. Thus the Full Court made clear that the issue should not be decided on the balance of convenience but rather such factors as means and needs of the parties, children’s needs hardship and conduct.  These were clearly guidelines.

2. In an interlocutory hearing, it is difficult to make findings on disputed evidence and here, even though the evidence of the daughter is persuasive, it is not the end of the matter. As I earlier said, I have concerns about what findings I can make on any of the evidence such as I could say that the means and needs of the parties are clear.

3. As indicated, the injunctive power is found in s 114 of the Act. It provides that:

   In proceedings [between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship]… the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including

   ...

   (b)      an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides...

4. In Page v Page (1981) FLC 91-025 the Full Court cited with approval Bassett v Bassett (1975) 1 All ER 513 at p 520 where it was said that the approach of the court should be strictly practical, “having regard to the realities of family life”. In Page, the Full Court was contemplating a situation in which the question was about whether the circumstances were intolerable to the point that the Court had to intervene. In this case, the applicant had left the home and the adult children remained. The parties’ finances are obviously not parlous. The applicant has access to funds under her control but is also the legal holder of shares in a business to which she can no doubt turn for finance if necessary. She clearly has that legal right. The breakdown of the relationship between father and daughter is not an incident which should have any influence on the outcome of this case. I do not know whether the respondent leaving the home would make any difference to the applicant’s relationship with the daughter nor the relationship between father and daughter.

5. In Sieling v Sieling (1979) FLC 90-627, the Full Court considered the s 114 injunction and observed that the exercise of the power was discretionary but their Honours added “not to be exercised lightly”. Both parties considered the hardship to the other in this case. They do not agree on the impact of such an order on each of them. Each has a plausible argument as to why they should have the house but I am satisfied that I should not lightly interfere with the rights of the respondent bearing in mind that whilst both parties are owners, the respondent has maintained occupation since the start of the year. It is highly inappropriate in my view to interfere with such rights on the basis of vague assertions as here.

6. In my view, something must stand out which points to the necessity for  the Court to interfere with otherwise lawful rights. That evidence is absent here.

7. It is interesting to note the observations of the Full Court in Scholte and Scholte [2002] FamCA 59 where their Honours said:

   An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…

8. There is no evidence of tension in the home here albeit there is plenty of evidence of anger and angst outside the home. The parties are certainly on the road to a property settlement where all of these issues might be more sensibly addressed and the sooner that occurs, the better.

9. Section 114 requires the Court to be satisfied that granting the injunction is "proper". Absent some clear evidence upon which I could make such a finding, the application must fail. That is the situation here for the reasons outlined above.

10. I will order the parties attend a conciliation conference as soon as one can practicably be organized and I will give them liberty to apply to have the matter listed for final hear if possible before the end of the year.

I certify that the preceding Forty Six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 July 2014.

Associate: 

Date:  16 July 2014