Mulder and Gildas

[2018] FamCA 647

FAMILY COURT OF AUSTRALIA

MULDER & GILDAS [2018] FamCA 647

FAMILY LAW – PROPERTY – Sole occupation and Spousal maintenance – Where the wife seeks to have sole occupation of the former matrimonial home – Where the wife has made no contributions to the property which was purchased by the husband – Where the wife seeks that the husband pay her spousal maintenance – Where the wife has mental health difficulties and substance abuse issues – Where the wife is presently unable to work – Where only the amount of spousal maintenance is in dispute – Order made dismissing the wife’s application for sole occupation – Order made for the husband to pay spousal maintenance to the wife for a limited period of time.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 114

Bevan & Bevan (1995) FLC 92-600
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Plowman v Plowman (1970) 16 FLR 447
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Sieling v Sieling (1979) FLC 90-627

APPLICANT: Ms Mulder

RESPONDENT: Mr Gildas

FILE NUMBER: PAC 969 of 2018

DATE DELIVERED: 15 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Neuhaus of Mahony Family Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Aston Legal

Orders

1. That the husband pay to the wife or as she otherwise directs in writing the sum of $1,100.00 per week by way of interim spousal maintenance pending further order,  the first payment to be made within seven (7) days from this date and then each week thereafter for a period of 26 weeks from this date.

2. That the husband pay to the wife or as she may otherwise direct in writing by way of lump sum interim spousal maintenance the sum of $5,000.00 within seven (7) days from the date of these orders.

3. That, otherwise, all interim applications be dismissed.

4. That these proceedings be transferred to the Federal Circuit Court of Australia at Parramatta.

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 Mulder & Gildas 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 969  of 2018

Ms Mulder

Applicant

And

Mr Gildas

Respondent

REASONS FOR JUDGMENT

1. On 7 March 2018 the applicant wife filed an Initiating Application commencing proceedings seeking property adjustment orders as between herself and the respondent husband.

2. In that application the wife, in summary, sought final orders that would provide for an equal division of the matrimonial assets and the parties’ superannuation.

3. In the application the wife sought interim orders, relevantly as to the issues for determination, as follows:

   a)that the wife be granted exclusive occupation of the property at B Street, Suburb C (“the Suburb C property”) to the exclusion of the husband;

   b)that the husband be restrained from residing at, attending at or being within 100 metres of the Suburb C property;

   c)that forthwith upon the husband vacating the Suburb C property he shall cause all keys and any security codes necessary to access the home to be provided to the wife;

   d)that pending further order the husband be solely responsible for the payment of mortgage rates and utilities with respect to the Suburb C property when they fall due and payable;

   e)that the husband pay by way of interim spousal maintenance to the wife the sum of $2,500.00 per week;

   f)that in the alternative to the preceding order in the event that the wife is not entitled to exclusive occupation of the Suburb C property that the husband pay by way of interim spouse maintenance to the wife the sum of $3,000.00 per week; and

   g)that the husband be restrained pending further order from dealing in any way with his interest in the Suburb C property including but not limited to selling, refinancing or otherwise encumbering the property.

4. In support of the interim orders sought by the wife she relied upon her Financial Statement filed 21 May 2018 and her affidavits filed 7 March 2018 and 21 May 2018.

5. The husband filed his Response on 17 May 2018 seeking by way of final orders that the wife be paid a sum equivalent to 15 per cent of the matrimonial asset pool and that the husband and wife retain their respective superannuation entitlements.

6. The husband by way of interim orders sought:

   a)that the wife be restrained from residing at or occupying the Suburb C property;

   b)that he have sole use and occupation of the Suburb C property pending further order;

   c)that he pay mortgage payments and property outgoings as they fall due and payable; and  

   d)that he pay to the wife by way of interim spousal maintenance the sum of $500.00 per week.

7. The husband relied upon his Financial Statement filed 17 May 2018 and his affidavit filed 17 May 2018.

Context

1. The wife is presently aged 43 years and the husband is aged 40 years.

2. The husband and wife commenced cohabitation in July 2013 and subsequently married in the same year.  They separated on 11 February 2018 when the wife left the former matrimonial home at Suburb C whilst the husband was overseas.

3. There are no children of the parties’ relationship.

The wife’s evidence

1. Subsequent to leaving the matrimonial home the wife was an inpatient at the D Hospital at Suburb E where she was admitted for alcohol relapse prevention and support.  The wife was discharged from the D Hospital in late March 2018. She then obtained hotel accommodation for two weeks and then stayed with a friend for two weeks.

2. She was readmitted to the D Hospital on 19 April 2018 until 10 May 2018 due to an “alcohol relapse” and anxiety.  She has been accommodated in a women’s shelter since 14 May 2018 and thereafter proposes to make application to the Department of Housing for accommodation or seek private rental accommodation.

3. The wife has requested that she be permitted to return to reside in the Suburb C property, a request that the husband has refused.

4. The wife says that the husband is a director of F Ltd (“FL”), a position that he commenced in December 2013.  Until July 2013 the husband was employed as a senior adviser at G Bank.  The wife asserts that in his previous employed capacity the husband was earning about $1 million per annum.

5. At the time of the parties’ marriage the wife was in employment in merchandising earning about $180,000.00 per annum.  Subsequently she obtained employment in another merchandising role earning about $100,000.00 per annum with that employment ending in June 2015.

6. The wife says that at the commencement of cohabitation with the husband she had a one third interest in a real estate property at H Street, Suburb J (“the Suburb J property”), superannuation of about $140,000.00, a life insurance policy, a motor vehicle, about $20,000.00 at bank and some jewellery and personal effects.

7. The Suburb J property was sold in June 2014 from which sale the wife received approximately $210,000.00 and a short time later a share from her late mother’s estate of about $32,000.00.  Earlier in 2014 she had received damages in an employment compensation claim of $55,000.00.

8. The wife presently has a sedan that she estimates to be worth about $8,000.00.

9. The wife says that in June 2015 she and the husband separated for a period of about four months during which time she commenced to set up her own business as a sole trader.  The wife asserts that in the last two years the business has accumulated losses of about $184,000.00.  As at early March 2018 she had about $21,000.00 remaining of a $40,000.00 government grant made in respect of her business.

10. She asserts that she has applied for many jobs including approximately 40 positions since the beginning of 2018.  She asserts that she is told that she is either overqualified, will not remain in employment permanently or has been out of the workforce for too long. 

11. She, otherwise, asserts that the nature of her relationship with the husband made it difficult for her to cope on a day-to-day basis by reason of his abuse and infliction of physical injuries on her.  The wife suffers from cardiovascular difficulty and is presently taking Effexor and Topamax prescribed by her psychiatrist at the D Hospital for anxiety and her alcohol abuse.  She has made application for a Centrelink Newstart benefit.

12. Leaving aside issues as to her ongoing legal fees and her failed business the wife asserts that her reasonable weekly expenses will be:

    Rent   $     500.00

    Health insurance  $       65.00

    Medications  $       35.00

    Psychiatrist fees  $       75.00

    Electricity/gas  $       30.00

    Phone/Internet  $       45.00

    Taxis/Uber  $     100.00

    Motor vehicle registration               $       20.00

    Motor vehicle insurance                   $       30.00

    Car maintenance  $       20.00

    Pet expenses  $       25.00

    Food  $     150.00

    Household supplies  $       20.00

    Clothing/shoes  $       20.00

    Entertainment  $     100.00

    Hairdressing/toiletries  $       90.00

    Gifts  $         5.00

    Dry-cleaning  $       20.00

    $  1,350.00

13. In addition to which the wife asserts she has the following lump sum expenses:

    Rental bond  $  2,000.00

    Removalist expenses  $  1,000.00

    Purchase of white goods                  $  4,000.00

14. The wife makes significant allegations of domestic violence as against the husband including physical assaults, inflicted injuries, verbal abuse and coercive and controlling violence.  A determination of her detailed allegations will await a final hearing when contested evidence can be tested.

15. The wife’s hospital records from her admission to K Hospital in December 2016 (Exh “B”) are supportive of her assertions as to the husband’s aberrant behaviour.  She attended at the hospital with a head injury reporting a history of domestic abuse including in recent weeks head butts and punches to her face by the husband. 

16. The hospital notes record:

    Patient presented to ED to discuss with social work for available services and to discuss detox options with Drug & Alcohol.  Patient has ongoing anxiety, depression and PTSD and has seen a psychologist in the past but not for a long time. 

17. The wife reported to the hospital that she was drinking “couple bottle wine daily”.

18. The hospital examination of the wife revealed minimally displaced fractures of the nasal bones, bruising to both eyes and swelling to the bridge of her nose and a nosebleed.  The wife reported to the hospital that she had started alcohol abuse again about 12 months before and had been drinking heavily lately “up to 2 or 2.5 bottles of wine daily”.  She further reported an ongoing problem of domestic abuse and no current plans to go to the police with her intention being to “eventually separate from the husband and move out”.

19. It appears that notwithstanding her husband’s conduct she returned to reside in the Suburb C property with him.  In early January 2017 the husband spat water over her and threw a drink in her face while he was drunk.

20. In March 2017 the wife was admitted to L Hospital.  She presented with PTSD, depression and poly-substance abuse.  She reported that she was unemployed and lived with her husband in Suburb C.  She reported “a history of suicide attempt, no self-harming behaviour and denied suicidal ideation at [the] time of assessment”.  She disclosed a history of “alcohol and Benzo misuse”.  The wife completed a three week integrated inpatient program according to her discharge summary (Exh “B”). However, she has provided no detailed notes as to what transpired during her admission to the hospital on a full-time basis. 

21. In 2017 the wife attended a counselling group for three days per week from 10.30 am to 3.30 pm for help with her anxiety and depression.

22. Subsequent to the wife leaving the home in February 2018 she attended on the police who applied for a provisional Apprehended Domestic Violence Order (“ADVO”) for her protection.  A provisional ADVO was made on 12 February 2018.  The husband is opposing the application for the ADVO and the proceedings were listed for hearing in late May 2018.

23. The wife asserts that the husband was not supportive of her financially and she used her funds for her expenses and to promote her business as referred to above.  The wife asserts that she paid various medical and hospital expenses relating to IVF treatment, purchased homewares for the husband’s Suburb C property, paid for outings and purchased clothing and other items for the husband.  The wife, otherwise, asserts that she paid for psychologist appointments for herself and the husband particularly, she asserts, in relation to the husband’s diagnosed “narcissistic personality disorder, depression and sex addiction”. 

24. The wife says that at the commencement of cohabitation the husband owned properties being the Suburb C property and a property at M Street, Suburb N.  She does not assert any contribution to the acquisition of these properties nor to the outgoings, including mortgage payments, relating to them.  Otherwise, she is of the understanding that the husband has a self-managed superannuation fund and some public company shares.

The husband’s evidence

1. The husband asserts that he and the wife have in effect been living separately and apart in the Suburb C property since February 2017.

2. He asserts that in January 2016 the wife was so intoxicated that she was removed from the home by the police and admitted to the O Hospital psychiatric ward.  He says that in May 2016 at a venue in Sydney he was punched in the face by the wife who was intoxicated and she was removed from the premises by security.

3. He denies ever being abusive or violent to the wife at any time.  He denies that he suffers from or has been diagnosed with any psychiatric or psychological illness except for depression in December 2014 and denies the wife’s various allegations as to his aberrant behaviour.

4. He says that in August 2013 he gave the wife his sedan that he had purchased the year before for $52,000.00.  He denies that she made any significant contribution to the home or its contents.

5. The husband says that he receives a salary from the business FL in which he has an interest of about $120,000.00 per annum and receives other income of about $30,000.00 per annum from his company P Pty Ltd “PPL”).

6. His company, in the period January 2017 to August 2017 received payments from FL totalling about $133,000.00 together with payments from Q Trust of about $30,100.00 in the same period. Funds from PPL were regularly transferred to the husband’s personal accounts into which his salary was also paid. This is indicative of him having overall income/financial resources of about $310,000.00 in the 2017 year or as best can be determined about $6,000.00 per week

7. He asserts his expenses to be:

   Tax  $     673.00

   Voluntary Super  $     228.00

   Mortgage  $  1,125.00

   Life Policy  $       49.00

   Insurances  $       74.00

   Car rego  $       10.00

   Car payments  $     193.00

   Food  $     150.00

   Household supplies  $       50.00

   Repairs  $       30.00

   Gas/Electricity  $       86.00

   Petrol/Mtnce  $       90.00

   Fares/Parking  $     150.00

   Clothing  $       50.00

   Medical  $       25.00

   Entertainment  $       50.00

   Chemist  $       10.00

   Gardening  $       30.00

   Dry cleaning  $         7.00

   Gifts  $       20.00

   Dog expenses  $       90.00  

   $  3,190.00

8. He clearly has the capacity to meet a spouse maintenance obligation and invites the Court to make an order for $500.00 per week should the wife be entitled.

9. He asserts that his Suburb C property has a value of $1.9 million and is encumbered by a mortgage of $740,000.00 with mortgage payments of $1,125.00 per week.  He, otherwise, has about $146,000.00 in superannuation.

Sole Use and Occupation

1. Both parties conceded during submissions that they could not reside in the matrimonial home together. 

2. Indeed, it is the husband’s assertion that since cohabiting with the wife he has been subjected to her physical, mental and verbal abuse on a daily basis in circumstances where she was “perpetually intoxicated”.

3. The Suburb C property is the husband’s property to which, on the wife’s evidence such as it is, the wife has made little contribution to its acquisition or retention.  The wife frames her relief in the alternative such that if she is not permitted to return to the home the husband provides her with sufficient funds to cover rent for one bedroom accommodation plus living expenses.

4. 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.

5. Under s 114 of the Act the Court is required to make an order that “it considers proper”.

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

7. 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.

8. 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.

9. The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78,170) quoted with approval a passage from P & P, an unreported decision of Lindenmayer J delivered 12 July 1982, as follows:

   In my opinion, 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.

1. Thus relief should not depend merely on the balance of convenience or hardship. The authorities, however, demonstrate that the balance of convenience may 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.

2. In the circumstances of this matter, where the property in question is that of the husband and is a property to which the wife has made little significant contribution, it is not proper to exclude him from his home subject to him having the capacity to provide interim spousal maintenance such as would accommodate the wife.

Spouse maintenance

1. Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).

2. Section 72 provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   b)by reason of age or a physical or mental incapacity for appropriate gainful employment; or

   c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2) of the Act.

3. In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:

   As Nygh J said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

4. There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).

5. The relevant matters in s 75(2) need to be considered.

6. The wife is 43 years of age and the husband is 40 years of age.  The husband does not assert ill-health whereas the wife has had, it appears, significant psychological and psychiatric issues including substance addiction. The wife at present does not have the capacity for employment by reason of the matters discussed above. It is, however, incumbent on her to address her ongoing health issues with a view to returning to employment at some time in the future.

7. The income and property and financial resources of the wife are referred to above.

8. The commitments of the parties are set out above.

9. It is clear that the wife is unable to support herself at present. It is also clear on the basis of the husband’s income and resources that he has the capacity to maintain the wife to some extent. 

10. The wife’s needs as asserted by her are about $1,300.00 per week. A sum in her circumstances appear excessive. Overall, they are reasonably assessed at $1,100.00 per week. It is appropriate that the order for spousal maintenance be for a fixed period at the expiration of which the wife may on good grounds seek the order to continue. The husband may seek to discharge the order earlier should the wife’s circumstances as to employment change for the better.

11. It is not the function of periodic spouse maintenance to provide for ongoing legal fees. Such may be the subject of further application by way of interim property or provision of costs in respect to which different considerations apply.

12. The wife’s application for sole use and occupation orders will be dismissed for the reasons given.

13. There will be an order that the husband pay to the wife by way of interim spousal maintenance pending further order the sum of $1,100.00 per week together with a modest lump sum of $5,000.00 to facilitate the wife adequately rehousing herself including paying bond for rental accommodation and buying necessary furniture and white goods.

14. Otherwise, these proceedings are to be transferred to the Federal Circuit Court of Australia. The property and financial issues are limited with a trial probably estimated two days for hearing.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 June 2018.

Associate:

Date:  15 June 2018