Merritt and Phillips

[2017] FamCA 618

FAMILY COURT OF AUSTRALIA

MERRITT & PHILLIPS [2017] FamCA 618

FAMILY LAW – Injunctive relief – Sole use and occupation of matrimonial home – Relevant considerations – Where children reside with mother – Mother granted sole use and occupation.

Family Law Act 1975 (Cth) ss 68B, 114

Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Plowman (1970) 16 FLR 447
Sieling v Sieling (1979) FLC 90-627

APPLICANT: Ms Merritt

RESPONDENT: Mr Phillips

FILE NUMBER: PAC 6297 of 2015

DATE DELIVERED: 17 August 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Lamrocks Solicitors

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT: Langenberg Law

Orders

1. That the husband, Mr Phillips, shall vacate the former matrimonial home at B Street, Suburb C within seven days from the date of these orders.

2. That as and from seven days from the date of these orders and thereafter the wife, Ms Merritt, shall have sole use and occupation of the said property to the exclusion of the husband pending further order provided always that the wife shall pay as they fall due and payable payments on the mortgage secured over the said home together with property outgoings including council rates, water rates and insurances accruing as and from seven days from this date.

3. That the husband is restrained when vacating the former matrimonial home from removing any items of furniture, furnishings and personalty therein save for his clothing and personal effects without the written consent in writing of the wife with such writing to include SMS or email communication.

4. That the husband is restrained from attending upon, at or within 100 metres of the said matrimonial home without the written consent in writing of the wife with such writing to include SMS or email communication.

5. That any application for costs be by way of written submissions filed and served within 21 days from this date with any submissions in response to be filed and served within a further 14 days with judgment thereafter reserved to chambers.

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 Merritt & Phillips 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 PARRAMATTA

FILE NUMBER: PAC 6297  of 2015

Ms Merritt

Applicant

And

Mr Phillips

Respondent

REASONS FOR JUDGMENT

1. The interim application for determination relates to the question of interim property injunctions and sole use and occupation of the matrimonial home.

2. The applicant wife in her Application in a Case filed 10 April 2017 seeks orders in summary as follows:

   a)that within seven days the husband to vacate the former matrimonial home at Suburb C and thereafter remained away from the property;

   b)that within seven days the husband pay in full any Council rates, water rates and mortgage payments in arrears for the Suburb C property;

   c)that the wife thereafter be entitled to occupy to the exclusion of the husband the Suburb C property pending further order;

   d)that the husband be restrained by injunction from entering, attempting to enter or frequenting the general vicinity of the Suburb C property.

3. In support of her application, the wife relied upon the following documents:

   a)her financial statement filed 9 March 2016;

   b)her affidavit filed 10 April 2017;

   c)her affidavit filed 10 May 2017.

4. The husband filed a Response to the wife’s Application in a Case on 3 May 2017 seeking orders that the wife’s application be dismissed and that the wife pay his costs of and incidental to the application.

5. The husband relied upon his affidavits filed 3 May 2017.

Context

1. The applicant in the primary proceedings is the husband.

2. In his application commencing proceedings as to property filed 24 December 2015 he seeks an order that he pay to the wife the sum of $50,000.00 and that thereafter she transfer her interest in the Suburb C property to him and that he indemnify her from all liability in relation to outgoings and mortgage payments in relation to the said property. Otherwise, he sought orders that in effect left each of the parties with assets to which they were otherwise individually entitled.

3. The wife filed a Response to the husband’s Initiating Application on 9 March 2016. Relevantly, as to property, she sought orders that she pay to the husband the sum of $30,000.00 and that upon payment the husband transfer his interest in the Suburb C property to her.

4. The husband is presently aged 41 and the wife is aged 33.

5. The parties commenced cohabitation in 2006, married in 2010 and separated on a final basis on 20 June 2015. There are two children of the marriage, D now aged nearly six and E now aged nearly three.

6. On 16 December 2016 various parenting orders were made by consent as follows:

   1.That the children live with the Mother.

   2.That the Father attend upon the [H Agency] at [F Street, Suburb G] for the purposes of providing a chain of custody hair sample for the purposes of a hair test to test for the presence of illegal drugs such as cannabinoids, opiates, amphetamines, methamphetamines and benzoids with such test to be conducted 2.00 pm on 16 December 2016 and that the Father is to sign any such releases as are required to ensure that the results of the hair tests are made available to the Mother’s Lawyer and the Independent Children’s Lawyer.

   3.That the Mother be responsible for payment of the costs of the hair testing conducted by The Drug Detection Agency referred to in order 2 of these orders.

   4.That the Father be restrained from cutting or allowing any other person to cut his hair prior to the hair testing referred to in order 2 of these orders.

   5.That the Father shall submit for CDT and liver function blood tests within 4 weeks, as follows:

   (a)The liver function blood test shall be administered by the Father’s treating General Practitioner or any accredited testing laboratory to whom the Father may be referred by his treating General Practitioner; and

   (b)The Father shall cause a copy of his CDT and liver function blood test results to be forwarded to the Independent Children’s Lawyer and the Mother’s lawyers within forty eight (48) hours of his receipt of the same.

   6.That, for the purposes of the Father commencing time with the children at a Commercial Children’s Contact Agency, the Father shall:

   (a)submit for chain of custody urinalysis testing by 5.00 pm on 17  December 2016 with such testing to be supervised and the results are to be provided to the Independent Children’s lawyer and the Mother’s Lawyer.

   7.The Father shall submit to a further chain of custody urinalysis test within 24 hours of the request of the Independent Children’s Lawyer to occur within the four weeks of the date of these orders and provide the result of such test to the Independent Children’s Lawyer and to the Mother’s Lawyer.

   8.That the Father shall be responsible for the cost of the urinalysis testing as referred to in order 6 and 7 of these orders.

   9A.That upon the Father providing 2 urinalyses results which do not detect the presence of illicit substances, the Father shall spend time with the children as follows:

   (a)The Father shall spend time with the children on a supervised basis through The Contact Agency each week for a period of two hours to occur on a Saturday or Sunday;

   (b)The Father shall be solely responsible for any costs associated with the Contact Agency supervising his time with the children;

   9.That within 7 days the parties shall:

   (i)Telephone the Contact Agency and arrange an appointment for assessment of suitability for supervising contact;

   (ii)Attend the assessment;

   (iii)Comply with any reasonable rules for the Contact Agency.

   10.That the Father be restrained from consuming any alcohol and/or illicit drugs during his time with the children and for the 24 hours prior to his time with the children commencing.

   11.That the Father shall submit for chain of custody urinalysis testing upon request by the Independent Children’s Lawyer, as follows:

   (a)On not more than one (1) occasion per month as randomly nominated by the Independent Children’s Lawyer;

   (b)Under supervision;

   (c)The Father shall submit for such testing to take place on the same day as the request is made by the Independent Children’s Lawyer;

   (d)Such urinalysis testing shall be conducted in accordance with the Australian/New Zealand Standard 4308:2008:  Procedure for the collection, detection and quantitation of drugs of abuse in urine;

   (e)That the Father provide the results of the urinalysis test to the Independent Children’s Lawyer and to the Mother’s Lawyer within 48 hours of the test being conduct.

   12.That in the event the urinalysis testing report referred to in order 11 of these orders reports a reportable quantity of any illicit substances, the father’s time with the children at the contact centre shall cease until the Father can provide 2 clean urinalyses tests in accordance with order 11 above and upon such time the father’s with the Contact Agency may recommence.

   13.That the Contact Agency shall be Connecting Families or such other agency as agreed by the parties.

   14.The Father shall cause the Contact Agency to report on each visit and the Father shall pay the costs of such reports and provide a copy of each report to the ICL and the Mother within 3 days of receipt.

7. On 14 March 2017 an order was made for the appointment of a Chapter 15 expert in the following terms:

   1.That [Mr J] be appointed as Chapter 15 Expert to provide a Report to the Court dealing with the following:

   (a)An assessment of the use (if any) by the father of illicit drugs.

   (b)An assessment of the use (if any) by the father of alcohol.

   (c)An assessment (if required) of the use by the father of any prescription medications and any interactions between such medications and other drugs (if any) used by the father.

   (d)An assessment of the impact of such use (if any) of any drugs by the father upon his capacities and any impairment of those capacities.

   (e)Any other matters the Expert considers relevant.

   2.For the purpose of Order 1.

   (a)Both parties shall attend any interviews as required/directed by [Mr J] or his nominee.

   (b)Both parties shall provide any information requested by [Mr J] or his nominee to assist in the preparation of the report.

   (c)Both parties shall share equally in the cost of the Report such that each shall provide confirmation to the Independent Children’s Lawyer in writing through their solicitor that the sum of $1,250.00 is held in Trust on account of payment of the fees of [Mr J] for preparation of the Report and that such confirmation shall be provided at least 14 days prior to the first appointment with [Mr J] or his nominee.

   (d)The Independent Children’s Lawyer shall provide to [Mr J] copies of documents produced on subpoena and for the purpose of these Orders the Independent Children’s Lawyer shall have leave to photocopy documents produced on subpoena.

   (e)The Independent Children’s Lawyer shall provide [Mr J] with copies of any correspondence and test results relevant to Orders made for the father to undertake testing relating to drug and alcohol use.

8. On 26 April 2017 it was noted by the registrar that the single expert had concluded his report but the report was unable to be released as the husband had failed to pay his share of the single expert’s fees.

9. Subsequently on 11 May 2017 the husband’s then solicitors filed a Notice of Ceasing to Act.

10. The interim hearing was held on 15 May 2017. Subsequently, the parties requested that judgment not be reserved until further notice. Judgment was later reserved on 9 July 2017.

The mother’s evidence

1. The Suburb C property was purchased in February 2014 with the parties commencing to occupy the property in May of that year.

2. The wife asserts that she and the children were subjected to family violence and abuse at the hands of the husband leading up to final separation in July 2015. On 17 July 2015 the husband abused the wife who left the home and, with the children, went to her parents’ home nearby.

3. The following day the husband confronted the wife while she was at a nearby shopping centre again screaming abuse at her, following her to her car continuing to shout abuse at the mother and the child, D.

4. In January 2016 the mother moved from her parents’ home to their investment property in Suburb C and commenced to pay her parents rent of $411.00 per week. To facilitate her move into the investment property the wife attended at the matrimonial home and observed that the husband had taken steps to prevent access to the garage, had nailed shut the backdoor to the property and had nailed closed and changed the locks on the front door.

5. In May 2016 the wife applied for a child-support assessment that was subsequently assessed at $244.00 per week. As at early May 2017 the husband was in arrears of child support in the sum of $7,447.03 after a lump sum payment by the father in mid-April of $2,000.00.

6. Subsequent to physical separation, the mother has continued to pay building insurance on the matrimonial home.

7. The husband has been mostly meeting mortgage payments in relation to the outstanding ANZ mortgage on the property. In May 2016 the wife received communication from the mortgagee bank that the mortgage payments were $3,049.00 in arrears. On request the husband attended to making payment of the outstanding arrears.

8. Subsequently, the husband has been regular in relation to meeting timely mortgage payments in relation to the home. Otherwise, the wife has been informed that there are arrears of local Council rates and water rates in relation to the property.

9. The wife is presently in employment four days per week earning after tax $850.00 per week. She receives supplementary Centrelink benefits of $250.00 per week and has an expectation of receiving child-support payments. The children are in childcare and before and after-school care that costs the wife $140.00 per week after rebate.

10. Her current rental payments to her parents are $411.00 per week and current mortgage payments for the Suburb C property are $392.00 per week.

11. The wife seeks to be able to return to reside in the matrimonial home that would, to an extent, reduce her weekly commitment. The home is, otherwise, within walking distance of the school attended by the child, D.

12. The wife asserts that the husband has alternative accommodation available to him at his parents’ seven bedroom home at Suburb K.

13. The husband asserts that he suffers from osteoarthritis in his legs due to an injury in 2008 and would be unable to reside at his parents’ home due to the property having stairs. The matrimonial home at Suburb C is a double story home with no bedrooms or bathrooms downstairs. The husband’s contention appears to be baseless.

The husband’s evidence

1. The husband denies the wife’s allegations of family violence and the assertion that such conduct led to the parties’ final separation. He, otherwise, denies the wife’s assertions as to inappropriate conduct by him after separation.

2. He accuses the wife of inappropriate and reckless spending.

3. He asserts that the wife left the home with the children without his knowledge.

4. He asserts in his affidavit filed 3 May 2017 that arrears of child support of $7,783.00 have now been paid in full by him.

5. He concedes that mortgage payments were somewhat irregular as a consequence of a downturn in his business. He asserts he borrowed funds to meet ongoing mortgage payments. He, otherwise, asserts that Council and water rates were in arrears at the time of final separation.

6. He contends that the investment property now occupied by the wife is itself within walking distance of the child D’s school and the day care centre attended by the child, E.

7. The husband contends that he needs to remain in the home for at least another 12 months as a result of his physical condition, requiring a crutch to be able to walk. He asserts that he will need to have knee replacements within the next 12 months. Yet the husband provides no evidence from his general practitioner or medical specialist supporting his contentions as to his asserted disabilities.

8. He says that his child from his previous relationship, L who is now 16 years of age, spends significant time at the Suburb C property.

Occupation of the home

1. Section 114 of the Family Law Act 1975 (Cth) (the Act) provides:

   (1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), 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:

   (a)an injunction for the personal protection of a party to the marriage;

   (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, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   (c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

   (d)an injunction for the protection of the marital relationship;

   (e)an injunction in relation to the property of a party to the marriage; or

   (f)an injunction relating to the use or occupancy of the matrimonial home.

2. Under s 114 of the Act the Court may make an order that “it considers proper”.

3. Otherwise, in considering the best interests of children who are intimately involved in the present application as to their primary residence, s 68B of the Act relevantly provides:

   Injunctions

   (1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)an injunction for the personal protection of the child; or

   (b)an injunction for the personal protection of:

   (i)a parent of the child; or

   (ii)a person with whom the child is to live under a parenting order; or

   (iii)a person with whom the child is to spend time under a parenting order; or

   (iv)a person with whom the child is to communicate under a parenting order; or

   (v) a person who has parental responsibility for the child; or

   (c)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of the child; or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

1. In Plowman (1970) 16 FLR 447 Carmichael J considered some of the relevant matters as to use and occupation orders.

2. In Sieling v Sieling (1979) FLC 90-627 the Full Court said:

   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.

3. In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations 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. The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) quoted with approval a passage from P & P, an unreported decision of Lindenmayer J delivered 12 July 1982 and said:

   …Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.

   Thus relief should not depend merely on the balance of convenience or hardship. The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other. It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.

5. The parties remain in a conflictual relationship and the mother makes complaints as to the father’s conduct as referred to above.

6. Parenting considerations reflected in current interim orders provide that these young children remain in the primary care of the mother and, on the basis of protective considerations relating to the children and concerns in relation to the father’s drug and alcohol abuse orders have previously been made by consent, that the father have only supervised time with the children.

7. Otherwise, it is the wife’s contention that she and the children have been displaced from settled accommodation in the matrimonial home by reason of the father’s conduct.

8. For these young children the matrimonial home at Suburb C is in all probability identified by them as “their home”.

9. Financial considerations discussed above also support a conclusion that the mother will be able to meet obligations in relation to the mortgage and certain property outgoings were she to occupy the former matrimonial home with the children pending final hearing.

10. In circumstances where the mother is currently caring for the children, who have been displaced from their primary place of residence, the father’s conduct towards the mother and children has been questionable and indicates serious discord between the parties and where it is likely the father has alternate accommodation it is proper that that the mother (and the children) should have the sole use and occupation of the home.

11. The husband should be permitted to remove his clothing and personal effects but, otherwise, be restrained from removing any of the contents of the home without the wife’s consent in writing.

12. Orders will be made accordingly.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 August 2017.

Associate: 

Date:  17 August 2017