Naylen & Naylen
[2021] FamCA 392
•15 June 2021
FAMILY COURT OF AUSTRALIA
Naylen & Naylen [2021] FamCA 392
File number(s): MLC 5725 of 2019 Judgment of: MCEVOY J Date of judgment: 15 June 2021 Catchwords: FAMILY LAW – PROPERTY – where the wife seeks the sale of a property the sole registered proprietor of which is the husband – where the wife submits that the asset pool must be preserved and protected – where the husband submits there is no urgency to sell the property – where the husband submits he would be significantly prejudiced by a premature sale of the property – where it is likely that the parties will be able to retain two properties – where the husband has refused to elect which property he seeks to retain – orders made for property to be sold and for the husband to continue to service the property’s mortgage, rates, taxes and all outgoings.
FAMILY LAW – INJUNCTIONS – exclusion from matrimonial home – where the wife seeks the sole use of the former matrimonial home – where the husband opposed the wife’s application – consideration of the hardship of each party – where a proper case exists for the making of the orders for sole use – order made for the husband to vacate the former matrimonial home and for the wife and children to have sole use.
1 FAMILY LAW – EVIDENCE – where the wife seeks a comprehensive report in relation to the husband’s current medical condition – where orders are made that the husband provide same within 60 days.
Legislation: Family Law Act 1975 (Cth) ss 79, 80(1)(h), 80(1)(k), 114(1) Cases cited: Bassett and Bassett [1975] Fam. Law 76
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Dean & Dean (1977) FLC 90-213
Fedele & Fedele (1986) FLC 91-744
Gabel & Yardley (2008) FLC 93-386
Herjiz & Herjiz [2017] FamCA 1062
Phillips v Phillips (1973) 1 WLR 615
Rowe & Rowe (1980) FLC 90-895
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627
Walker v Walker (1978) 1 WLR 533
Number of paragraphs: 41 Date of hearing: 10 June 2021 Place: Melbourne Counsel for the Applicant: Mr Hannan Solicitor for the Applicant: Ms Bristow Counsel for the Respondent: Self-represented Solicitor for the Respondent: Self-represented ORDERS
MLC 5725 of 2019 BETWEEN: MS NAYLEN
Applicant
AND: MR NAYLEN
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.The Suburb B property, being the property at C Street, Suburb B, in the State of Victoria, be sold forthwith and the proceeds be applied as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage encumbering the Suburb B property;
(c)thirdly, to discharge all arrears owing in respect to the properties at 1 D Street, Suburb F and 2 D Street, Suburb F in the State of Victoria;
(d)fourthly, in payment of (or reimbursement to the wife if she has paid in the first instance) any cleaning/removal/storage/repair or other costs reasonably incurred by the wife in her capacity as having sole conduct of the sale;
(e)fifthly, the balance to be invested and remain in a controlled monies account by G Solicitors pending final property settlement in this matter, save for any agreement in writing by both parties to pay agreed disbursements.
2.Pending settlement of the sale of the Suburb B property or until further order, the respondent husband pay all instalments pursuant to the mortgage secured over the Suburb B property and all rates, taxes and like apportionable outgoings of the real property as and when they fall due.
3.The applicant wife have the sole conduct of the sale/sole use (until settlement) of the Suburb B property with the applicant wife to keep the respondent husband advised in writing in a timely manner of the terms and conditions of the sale, reserve price, progress of sale/offers and settlement and any necessary cleaning/removal/storage/repair costs.
4.Leave be granted to the applicant wife to provide the selling agents with a sealed copy of these orders.
5.Within 14 days of these orders, the respondent husband shall vacate the Suburb B property (and provide the applicant wife with all keys/remotes/access codes etc.) and ensure, at his expense, that the Suburb B property undergoes a vacate clean, subject to the satisfaction of the applicant wife and the selling agents.
6.In the event that the respondent husband neglects, refuses or is unable to sign any document required for the execution of these orders, then a registrar of the Family Court of Australia at Melbourne execute the deed or instrument in the name of the defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).
7.Within 28 days of the date of these orders the applicant wife, her parents and children vacate the property at 2 D Street, Suburb F and the respondent husband vacate the property at 1 D Street, Suburb F, with the applicant wife, her parents and the children taking up residence at 1 D Street, Suburb F and the respondent husband taking up residence at 2 D Street, Suburb F.
8.The respondent husband forthwith instruct his treating Specialist, Dr H, to provide a comprehensive report in relation to the respondent husband’s current medical condition, recommendations as to his future treatment and the prospects of the respondent husband re-entering the workforce at some time in the future having regard to his medical condition, such report to be provided to the applicant wife within 60 days, being by no later than 4.00pm on 14 August 2021.
9.The applicant wife’s application in a case filed 31 March 2021 be otherwise dismissed, save in respect to costs.
10.The respondent husband’s response to application in a case filed 5 May 2021 be dismissed.
11.The applicant wife file and serve any affidavit material and submissions in support of her application for costs on or before 4.00pm on 29 June 2021.
12.The respondent husband file and serve any affidavit material and submissions in opposition to the costs claimed by the applicant wife on or before 4.00pm on 13 July 2021.
13.The respondent husband’s application in a case filed 25 May 2021 be adjourned to the Judicial Duty List before the Honourable Justice McEvoy on 13 September 2021.
IT IS NOTED THAT:
A.The interim orders made 15 December 2020 remain in full force and effect.
B.At the hearing of the respondent husband’s application on 13 September 2021 the Court will consider a date for the matter to be re-listed for trial.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naylen & Naylen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION
This is an application by Ms Naylen (“the wife”). She seeks the sale of a property at Suburb B which is part of the parties’ asset pool to avoid the risk of a mortgagee sale and to preserve the asset pool available for distribution, together with ancillary orders. She also seeks the sole use of another property within the parties’ asset pool which is the former matrimonial home. Mr Naylen (“the husband”), who was self-represented, strenuously opposed the wife’s application.
In circumstances where the trial of the proceeding has been adjourned indefinitely by reason of the husband’s medical conditions and it is apparent that the parties can no longer sustain their presently existing levels of debt, there is no practicable alternative other than to order the sale of the Suburb B property. Nor is it fair, just or reasonable for the wife and children to remain living in their present accommodation and for the husband to continue living in the former matrimonial home. For the reasons that follow there will be orders substantially in the terms sought by the wife in her amended minute of order submitted prior to the hearing on 10 June 2021, together with ancillary orders.
BACKGROUND
The wife is aged 50 and works as an educator. She is also engaged in further study. The husband was formerly an officer of the armed forces. He has also held senior management positions in the private and not-for-profit sectors. He is presently unemployed and has been for some time, at least partly in consequence of a post-traumatic stress disorder (“PTSD”), and a physical medical condition. It would seem that the husband is quite unwell, although notwithstanding this he no longer has solicitors acting for him, and he has not sought to have a case guardian appointed on his behalf. As has been mentioned he appeared on his own behalf at the hearing of the wife’s application.
There are two children of the marriage, a boy presently aged 15, and a girl presently aged 13. The children live with the wife, and have done so since the parties separated in October 2013. The wife and the children live with the wife’s aging parents in a two bedroom property at 2 D Street, Suburb F. The husband is the registered proprietor of 2 D Street, and the wife’s parents have rented this property from him for about 12 years. The husband continues to live on his own in the former matrimonial home at 1 D Street, Suburb F, which is a substantially more commodious dwelling. The husband is also the registered proprietor of 1 D Street, and indeed he is or has been the registered proprietor of all of the properties which have comprised the parties’ asset pool. The wife’s parents are retired and it would seem that they are paying a number of expenses for the wife, including at least some of the children’s private school fees, in circumstances where the husband is not paying regular child support or otherwise contributing in any significant way to the children’s expenses.
PROCEDURAL HISTORY
In May 2019, some six years after separation, the wife commenced proceedings in this Court. It would seem that the parties had not been able to resolve a just and equitable alteration of property interests. Parenting is also in dispute.
The matter came before me in the Judicial Duty List on 15 December 2020. On the wife’s application I made orders for the sale of another property of which the husband was the registered proprietor (“the Suburb J property”) and for an interim payment to the wife of $200,000 from the proceeds of sale of that property. I did not, at that time, make an order for the sale of the property at Suburb B which the wife also sought. The husband is also the registered proprietor of the Suburb B property. It was apparent that the matter required an urgent final hearing, and I listed it for trial before me on 22 March 2021 and made timetabling orders. The Suburb J property has now been sold, and will settle shortly.
The matter was the subject of a mention on 15 March 2021. On that day the husband’s then solicitor submitted a minute of proposed order seeking, inter alia, for the trial the following week to be adjourned. She informed the Court that no material had been filed on behalf of the husband in compliance with the trial orders of 15 December 2020 as she had been unable to obtain instructions from the husband. It would seem that the husband had been admitted to hospital on 8 March 2021. The husband’s solicitor provided to the Court a one page letter from the husband’s treating physician which briefly outlined the nature of his conditions, and recommended that any court hearings be adjourned for at least 3-4 months to allow the husband to recover. On the basis of this report the husband’s solicitor applied to have the trial vacated and for the matter be listed for mention not before 30 June 2021.
The wife’s solicitor indicated that she had repeatedly asked for a more detailed medical report in relation to the husband’s conditions, providing in particular an assessment of his future capacity to work. It was, however, conceded for the wife that the trial could not proceed on 22 March 2021. The wife pressed for a more detailed medical report and sought a hearing within a short time-frame to deal with her extant application for the sale of the Suburb B property in the face of the parties’ worsening financial situation.
In response to the husband’s application I made orders vacating the trial, but listing the matter for a further mention on 1 April 2021. I informed the husband’s solicitor that more detailed medical evidence would be required on the subject of the husband’s inability to participate in the proceedings.
The wife filed another application in a case on 31 March 2021 pressing for the sale of the Suburb B property and for the sole use of 1 D Street for her and the children (and her parents), together with ancillary orders. At the return of the matter on 1 April 2021 the husband’s solicitor informed the Court that the husband required further time to file affidavit material on the subject of his medical condition and his financial position, and that he required further time to obtain financial advice on the question of whether the parties’ remaining three properties, 1 D Street, 2 D Street and Suburb B, could all be retained.
Although I acceded to the husband’s request for more time, mainly on the basis that the Suburb J property would soon be sold and that would provide the parties with a clear basis on which to consider their financial position, I indicated that it was becoming clear that the husband would likely need to make an election about whether he wished for the Suburb B property to be sold, or for 2 D Street to be sold. The state of the evidence in relation to the parties’ financial positon suggested that they could only afford to keep two of the three remaining properties. Orders were made to facilitate the sale of the Suburb J property, as well as for the filing of further material. The hearing of the wife’s application in a case filed 31 March 2021 was adjourned to 21 May 2021, but in the face of the late service of affidavit material and a further application by the husband for interim parenting orders, the wife’s application was ultimately not heard until 10 June 2021. The husband’s application for interim parenting orders was not reached on 10 June 2021, and will be adjourned to the judicial duty list before me on 13 September 2021.
THE CURRENT APPLICATION
At the hearing on 10 June 2021 the wife submitted an amended form of order which, insofar as it concerns property, is in the following terms:
1. The Suburb B property be sold forthwith and the proceeds be applied as follows:
(a) Firstly, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage encumbering the Suburb B property;
(c) Thirdly, to discharge all arrears owing in respect to the properties at 1 D Street, Suburb F and 2 D Street, Suburb F;
(d) Fourthly, in payment of (or reimbursement to the wife if she has paid in the first instance) any cleaning/removal/storage/repair or other costs reasonably incurred by the wife in her capacity as having sole conduct of the sale.
(e) Fifthly, the balance to be invested and remain in a controlled monies account by G Solicitors pending final property settlement in this matter, save for any agreement in writing by both parties to pay agreed disbursements.
2.Pending settlement of the sale of the Suburb B property or until further Order, the Respondent Husband pay all instalments pursuant to the mortgage secured over the Suburb B property and all rates, taxes and like apportionable outgoings of the real property as and when they fall due.
3. The Applicant Wife have the sole conduct of the sale/sole use (until settlement) of the Suburb B property with the Applicant Wife to keep the Respondent Husband advised in writing in a timely manner of the terms and conditions of the sale, reserve price, progress of sale/offers and settlement and any necessary cleaning/removal/storage/repair costs.
4. Leave be granted to the Applicant Wife to provide the Selling Agents with a sealed copy of these Orders.
5. That within 7 days of these Orders, the Respondent Husband shall vacate the Suburb B Property (and provide the Wife with all keys/remotes/access codes etc.) and ensure, at his expense, that the Suburb B Property undergoes a vacate clean, subject to the satisfaction of the Applicant Wife and the Selling Agents.
6. In the event that the Respondent Husband neglects, refuses or is unable to sign any document required for the execution of these Orders, then the Registrar of the Family Court of Australia at Melbourne execute the Deed or instrument in the name of the defaulting party pursuant to Section 106A of the Family Law Act 1975.
7. That within 28 days of the date of these Orders the Applicant Wife, her parents and children vacate the property at 2 D Street, Suburb F and the Respondent Husband vacate the property at 1 D Street, Suburb F, with the Applicant Wife, her parents and the children taking up residence at 1 D Street, Suburb F and the Respondent Husband taking up residence at 2 D Street, Suburb F.
8. That the Respondent Husband forthwith instruct his treating Specialist, Dr H, to provide a comprehensive report in relation to the Respondent Husband’s current medical condition, recommendations as to his future treatment and the prospects of the Respondent Husband re-entering the workforce at some time in the future having regard to his medical condition.
9. That the Interim Orders made 15 December 2020 remain in full force and effect.
10. That the Respondent Husband pay the Applicant Wife’s costs of and incidental to this Application and pay the Applicant Wife $8,712.50 being one half of the costs of the updated valuations of the properties valued by Mr K and one half of the costs of Dr L for preparing the Family Reports within 30 days of these Orders and in default such costs shall be deducted/adjusted from his share of the final settlement.
The wife relied on the following material in support of her application:
(a)Affidavit of the wife filed 30 March 2021;
(b)Affidavit of the wife filed 24 May 2021;
(c)Affidavit of Mr K (valuer) filed 26 May 2021;
(d)an email from Mr M of the Commonwealth Bank of Australia (“CBA”) dated 24 May 2021 stating the extent of the parties’ indebtedness and arrears owing;
(e)a letter from the CBA dated 12 March 2021 in relation to the wife’s conditional approval for a mortgage;
(f)an aide-memoire outlining the wife’s estimate of the total property pool.
The husband relied on the following material:
(a)Response to an application in a case filed 5 May 2021;
(b)Affidavit of the husband filed 5 May 2021;
(c)Affidavit of the husband filed 26 May 2021.
At the hearing the husband complained that he had not been able to file further material in support of his position. It will be necessary to give consideration to whether this complaint is reasonable.
SALE OF THE SUBURB B PROPERTY
As has been mentioned, the mother has sought to sell the Suburb B property since at least December 2020. The husband’s position has been and remains that it is unnecessary to do so at this time.
According to the wife, and this is not disputed, the parties’ remaining four properties (including the Suburb J property which has been sold but which has not yet settled) are all mortgaged to the CBA and cross collateralised against one another. Some $1,921,758.15 is, in total, owing on loans secured by the four properties, and there are total arrears on those loans of $91,587.88.
On the wife’s present estimate the parties’ property pool, allowing for liabilities and including superannuation of almost $1 million, is in the vicinity of $4,940,218. 1 D Street has been valued recently at $2.15 million, 2 D Street at $1.65 million, Suburb B at $1.125 million and Suburb J is subject to a contract of sale with a purchase price of $1.325 million. The wife’s estimate takes into account the expenses of the sale of the Suburb J property, land tax bills, and not insignificant CGT liabilities.
The wife’s consistent position has been that the parties should be able to keep two properties, and that if necessary she is prepared to undertake further borrowing to retain 1 D Street for herself and the children to live in. She says that it is inconceivable that they could possibly retain all three remaining properties. The wife submits that their ongoing expenses (including school fees) are considerable, that the arrears on the various loans are steadily increasing because the mortgages cannot be serviced, that the property pool must be preserved and protected, and that in circumstances where the husband is not working and she earns a limited income the parties are exposed to a mortgagee sale of one of the properties if timely action is not taken. She has indicated that although her application is for Suburb B to be sold, she would have been content for 2 D Street to be sold instead, had that been the husband’s preference, but she has been unable to get him to state which property he would prefer to sell. The wife maintains that once the Suburb J property has settled, and all outstanding obligations have been discharged, there will be less than $200,000 remaining. She says that in light of the parties’ level of debt and their ongoing obligations there is no alternative but to sell Suburb B.
Although the husband accepts that he cannot meet the mortgage payments, his position is that there is no urgency to sell the third property now. He says that the sale of the Suburb J property will realise a “profit” of approximately $600,000. He submits that to sell another property at this time will limit the parties’ options at final hearing and that, depending on his health situation and whether he recovers and is able to work again, he may find himself in a position where if Suburb B is sold now he will not be able to obtain a loan in order to retain 2 D Street (which is more valuable) in the long term. Thus he says he would be significantly prejudiced by a premature sale of Suburb B.
The wife submits that the husband’s assertion that there will be a profit of $600,000 on the sale of Suburb J is incorrect, and that it ignores the considerable existing liabilities which must be met from the sale of that property. I accept that it is plain that the figures presented by the husband in his Affidavit of 5 May 2021 fail to take account of the liabilities disclosed by the wife in her Affidavit of 24 May 2021 (see especially paragraph 12), and that once Suburb J settles and the payments due are made from the proceeds of sale there will be less than $200,000 remaining.
Insofar as the husband now says that he wishes to contest the wife’s calculations, it is to be noted that he could offer no tenable critique of them at the hearing, and also that he failed to make an application for leave to file further affidavit material prior to the hearing in answer to the wife’s disputation of his own figures in her 24 May 2021 Affidavit. Nor is it apparent on the material that the CBA will permit for much longer, or at all, any moratorium on the repayments due on the Suburb B mortgage.
Section 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make interim orders for partial property settlement pursuant to s 79 of the Act. Section 80(1)(k) of the Act empowers the Court to make any other order which it thinks it is necessary to make to do justice. Although it is generally preferable for there to be one final hearing in s 79 proceedings, the Court’s power can “... properly be exercised by a succession of orders until the power to make orders with respect to property is exhausted”: Gabel & Yardley (2008) FLC 93-386 at 82,957 [57] (Bryant CJ and Coleman J).
In all the circumstances I accept the wife’s submission that it will not be feasible for the parties to retain all three of their remaining properties. I also accept that, in light of their obvious continuing obligations, it is not tenable to wait for some undefined period to enable the husband to decide whether he can afford to retain both 2 D Street and Suburb B, or whether he can only afford to retain Suburb B. The mortgages need to be serviced, the children need to be fed, clothed, and educated, the husband is presently incapable of working, and the wife earns but a modest income. Had it not been necessary to vacate the trial date by reason of the husband’s failure to file material and his hospitalisation in March of this year, the parties would, by now, either have final judgment or be close to receiving it.
As I indicated to the parties at the mention on 1 April 2021, the husband needs to decide which property he wants to retain. In circumstances where he has refused to do so, and continues to refuse to do so even when pressed at the hearing on 10 June 2021, it is not feasible to defer any longer the sale of Suburb B. To do so runs the risk of a mortgagee sale of one of the properties and the further unnecessary diminution of the asset pool. There will, accordingly, be orders to permit the sale of the Suburb B property by the wife, and to facilitate this being done. The husband will be required to continue to service the Suburb B mortgage and pay all rates, taxes and outgoings as and when they fall due. Although the wife has sought that the husband vacate Suburb B within seven days, in light of the present state of his health he should be afforded 14 days to vacate the property.
SOLE USE APPLICATION
The wife’s application for sole use and occupation of 1 D Street is brought pursuant to s 114(1) of the Act. Section 114(1) is in the following terms:
(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.
The present proceeding is one between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship, and as such is of a kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) of the Act. Accordingly, it is open to the Court to make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including, as provided in s 114(1)(b), an injunction restraining a party to the marriage from entering or remaining in the marital home or in the premises in which the other party to the marriage resides.
In Sieling v Sieling (1979) FLC 90-627, 78,264, a case where the Full Court was concerned with an ex parte order which had been made restraining the husband from selling or further encumbering the matrimonial home and from dealing with certain other property, Evatt CJ and Marshall SJ (with Asche SJ concurring) made the following observations as to the use of the s 114(1) injunction power:
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 martial relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling. These principles have been the subject of frequent exposition in the Full Court and application by primary judges. They may be summarised as follows:
(a)the Court may make such an order as it thinks proper: Davis & Davis (1976) FLC 90-062, 75,309 (Evatt CJ, Pawley and Ellis JJ);
(b)there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it: S & S [2002] FamCA 59, [40] (Kay, Holden and Monteith JJ);
(c)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: S & S, [38];
(d)it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order: S & S, [41];
(e)the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together: Rowe & Rowe (1980) FLC 90-895, 75,639-75,640 (Evatt CJ), 75,644 (Pawley SJ), (cf Wood SJ at 75,643); Davis & Davis (1983) FLC 91-319, 78,170 (Baker J, with whom Evatt CJ and Underhill J agreed);
(f)the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order: Davis & Davis (1976), 75,309; Rowe & Rowe, 75,640 (Evatt CJ), 75,644 (Pawley SJ);
(g)the test for making an order for exclusive occupation is an objective one, Rowe & Rowe, 75,644 (Pawley SJ);
(h)the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen: Walker v Walker (1978) 1 WLR 533, 536-537, cited with approval in Rowe & Rowe, 75,638-75,639 (Evatt CJ), 75,642 (Wood SJ) (albeit that his Honour appears to have referred mistakenly to Phillips v Phillips (1973) 1 WLR 615, in circumstances where it may be inferred that, like Evatt CJ, he meant to refer to Geoffrey Lane LJ in Walker v Walker);
(i)the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together: Bassett and Bassett [1975] Fam. Law 76, 87, cited with approval in Rowe & Rowe, 75,639 (Evatt CJ), 75,642 (Wood SJ);
(j)while the decision ought not be made merely on the balance of convenience: Davis & Davis (1976), 75,309, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home: Dean & Dean (1977) FLC 90-213, 76,097 (Wood J), referring to Davis & Davis (1976);
(k)it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened: Dean & Dean, 76,098.
In Fedele & Fedele (1986) FLC 91-744, 75,431, the Full Court (Fogarty, Murray and Nygh JJ) emphasised that these principles should properly be treated as guidelines to assist in the exercise of the important discretion given under s 114(1), and that they should not be seen as laying down any fixed list of criteria which must be established for the application to be successful. A judge must exercise his or her own discretion in the matter, informed by the Court’s previous consideration of the issues.
The husband has remained living in 1 D Street, the former matrimonial home, since separation – now some eight years ago. The wife and children, by contrast, have been forced to live with her parents in 2 D Street, a two bedroom property which until recently the wife’s parents have been renting from the husband. The children are no longer of an age where they can share a room, and one of them is presently being forced to sleep in the dining room. The wife apparently sleeps either with the daughter, or on the couch. How it could possibly be that in these circumstances it is appropriate for the husband to continue living, on his own, in the four bedroom property in the same street, where the parties and their children had always lived prior to separation, is not at all clear. The husband, who has declined to move to 2 D Street, says only that 1 D Street has been his home for 20 years and that he is not well and therefore should not be required to move.
The question is accordingly whether, in these circumstances, and having regard to the considerations essayed in the sole use authorities extracted above, it would be proper to order that the husband be prevented from continuing to reside at 1 D Street.
Consistently with Rowe & Rowe, in considering what is ‘proper’ the Court must consider the hardship of the order to each party, and make orders that are reasonable and just: (1980) FLC 90-895, 75,642.
Relief under s 114(1) of the Act should not depend solely on the balance of convenience or hardship, but the authorities demonstrate that the balance of convenience may decide the matter where there is intense disharmony between the parties or where each party would have an equally good case for excluding the other: Herjiz v Herjiz [2017] FamCA 1062, [36] (Foster J). The wife’s position is that the balance of convenience favours her and the children living in 1 D Street, and that it would be fair and reasonable for this to be ordered. She says that an order for the husband’s exclusion from 1 D Street can comfortably be made in circumstances where 2 D Street would be perfectly adequate for his use.
Insofar as the husband says that it would be unfair and unduly burdensome for him to be required to move out of 1 D Street, particularly given his state of health, it may be accepted that, consistently with S & S at [38], that an order of this kind is of such gravity that it ought only be made in restricted and exceptional circumstances. However the needs of the children, in particular, as they progress through adolescence, and the fact that the husband has ready access to alternative accommodation at 2 D Street, are factors which must also be weighed in the balance. Ultimately in my assessment they make the wife’s application irresistible. Indeed, it is to be wondered why she has not made the application well before now.
Having regard to the needs of the children, the availability of separate accommodation for the husband, and accepting that an order excluding the husband from 1 D Street will cause some level of inconvenience for him, in all the circumstances it would not be reasonable, sensible or practicable to expect the wife and children to continue to reside in 2 D Street and for the husband to continue to reside in 1 D Street. Accepting that an injunction excluding the husband from 1 D Street would be of considerable gravity, and should only be granted in restricted and exceptional circumstances, the wife has demonstrated that a proper case exists for the making of the orders for sole use that she has sought, and that such orders should be made. The parties will have 28 days to vacate 1 D Street and 2 D Street, as the wife proposes.
OTHER MATTERS
The wife also seeks orders for the provision of a comprehensive report in relation to the husband’s current medical condition from his treating specialist, that the interim orders made on 15 December 2020 remain in full force and effect, and for her costs of this application together with half of the costs of the valuation report and the family report.
I do not understand that the husband opposes the provision of a comprehensive report in relation to his medical condition, and it is plain that such a report is urgently necessary. There will be an order to this effect as sought by the wife, together with a requirement that this report be provided within 60 days. It is undesirable and probably untenable for the trial to be deferred indefinitely if the parties are not able to compromise the proceedings. Upon the filing of this report consideration will be given to the matter being re-listed for trial as soon as possible.
It is not necessary that there be an order providing that the interim orders made on 15 December 2020 remain in full force and effect, but there will be a notation on the orders to this effect.
Insofar as the wife’s application for the costs of and incidental to this application is concerned, and for the costs of the two reports, it is not apparent that the wife has filed material deposing to the costs of the reports. On the basis that this is so, the wife will be ordered to file and serve any affidavit material and submissions in support of her application for costs within 14 days. There will also be an order that the husband file and serve any affidavit material and submissions in opposition to the costs claimed by the wife within a further 14 days.
There will be orders dismissing the husband’s response to an application in a case dated 5 May 2021 and adjourning his application in a case of 25 May 2021 in relation to parenting matters to a date to be fixed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy j. Associate:
Dated: 15 June 2021
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