Norburn and Norburn
[2017] FamCA 311
•16 May 2017
FAMILY COURT OF AUSTRALIA
| NORBURN & NORBURN | [2017] FamCA 311 |
| FAMILY LAW – REFUSAL OF INJUNCTION – COSTS – Transfer of proceedings to another registry – Transfer of proceedings to federal circuit court. |
| Family Law Act 1975 (Cth) - ss 114(1)(b), 117 |
In the Marriage of Waugh (2000) ¶FLC 93-052
Campbell v Superannuation Complaints Tribunal [2016] FCA 808
Welch & Abney [2016] FamCAFC 271
| Yunghanns & Ors [1999] FamCA 64 |
| APPLICANT: | Ms Norburn |
| RESPONDENT: | Mr Norburn |
| FILE NUMBER: | CAC | 670 | of | 2017 |
| DATE DELIVERED: | 16 May 2017 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 8 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hassall |
| SOLICITOR FOR THE APPLICANT: | Sautelle White Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Irving |
| SOLICITOR FOR THE RESPONDENT: | Wards Barristers & Solicitors |
Orders
By consent, Ms Norburn and Mr Norburn are each restrained by injunction from causing damage to, or from reducing the value of, the premises known as B Street, C Town in the state of Victoria (C Town property).
That within 60 days of the date of these Orders the parties shall do all such acts and things and sign all such documents as may be required to cause the C Town property, being the whole of the land more properly described in certificate of title volume … Folio … to be listed for sale by private treaty at the earliest date possible at the market value determined in accordance with Order 2(b) below:
(a)The husband and wife place the C Town property with an agent agreed between the husband and wife or in default of agreement with an agent (the agent) nominated by the President of the Real Estate Institute of Victoria.
(b)The market value of the property be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Australian Valuers’ Institute, such determination to be paid for equally by the husband and the wife.
(c)If the property is not sold within three months of the date of these Orders or if the property is sold and the sale subsequently does not proceed to completion the husband and wife do all things necessary to offer the property immediately for sale by public auction by the agent, the reserve price being the market value determined in accordance with Order 2(b).
(d)The husband and wife execute all documents requested by the agent as auctioneers for sale of the property by auction.
(e)The husband and wife execute a contract of sale.
The proceeds of the sale referred to in Order 2 shall be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Payment of monies due and owing to the mortgagee; and
(c)Balance to be deposited in the mother’s solicitor’s trust account until further order of this Court.
The parties’ applications for interim orders, including for injunctive relief, are otherwise dismissed.
The husband’s application for costs is refused.
These proceedings are transferred to the Federal Circuit Court of Australia at the Dandenong registry for further hearing and directions on a date to be notified.
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 Norburn & Norburn 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 CANBERRA |
FILE NUMBER: CAC 670 of 2017
| Ms Norburn |
Applicant
And
| Mr Norburn |
Respondent
REASONS FOR JUDGMENT
The interim hearing in this matter, argued on 8 May 2017, involves what is going to happen with the parties’ former home at B Street, C Town, Victoria (the C Town property) leading up to its sale. The parties have agreed that I should make orders that provide for how the property is to be sold and what is to happen to the proceeds of that sale. Those orders will involve the property being placed on the market within 60 days of the making of the orders. However, the parties do not agree as to what the arrangements should be in the lead up to the sale, in particular who should have the occupation of the property and the responsibility for preparing the property for sale.
The wife seeks orders that will restrict the husband from entering the property and cause him to pay all rates and insurance and the mortgage on the property. In the alternative, she is content for the husband to occupy the property with her being restrained from entering onto the property, again on the basis that the husband will pay the rates, insurance and mortgage.
While the husband asserts that he has been paying the mortgage and the wife asserts that she has paid the insurance, the husband is not prepared to agree to terms that he would also be responsible for the rates.
The husband seeks orders that will restrain the wife from entering the property or in the alternative that each of the parties would be at liberty to occupy the property on a week about basis pending the sale of the property.
The wife opposes the week about proposal on the basis that she asserts that work that she performs on the property may be undermined by the husband when he attends the property.
Both parties agree that there should be an injunction restraining each of them from damaging or reducing the value of the property.
In support of their applications each of the parties filed an affidavit, the wife on 19 April 2017, the husband on 4 May 2017. Each also filed a Financial Statement on the same dates.
In support of her application for an injunction the wife relied upon a number of factors. She asserts that the husband has removed from the property some established trees, rose bushes, an industrial stove from the kitchen, wall panelling and shelving from a shed, the large barbeque, whipper snipper, quad bike, zero turn mower and tractor. At [65] through to [90] the wife outlines matters which lead her to fear the husband. She has obtained an intervention order against him, sets out a number of incidents which could be considered to be consistent with the husband stalking the wife, and raised issues in relation to his mental health.
The husband accepts that he has removed the items set out by the wife. In each case he provides a reasonable justification, at least at face value, for doing so. He removed the established trees because each was planted by him as a commemorative tree, in relation to his deceased parents and two deceased servicemen that he served with in the armed forces. He wished to retain those commemorative trees. He removed the rose bushes in relation to a termite issue, the industrial stove because he says it was easily removed, of significant value, and its removal and replacement by a cheaper unit would not affect the value of the home. He says he removed the shed-related items with the approval of the wife and removed the equipment for safe keeping as the residence was not occupied consistently, leaving those items vulnerable to theft.
He disagrees that he has stalked the wife, accepting that a number of the incidents that she has outlined occurred but explaining them to be innocent matters.
In support of his application for an injunction he asserts that the home was not maintained in the period following separation when it was solely occupied by the wife. During that time he says its condition degraded, with dead and dying trees and terminate damage. He alleges that the wife cut fences to gain access to the property when she could have used keys to enter through a gate.
The injunction each seeks is pursuant to s 114(1) of the Family Law Act 1975. The test of the making of the injunction is that the Court considers it to be proper to make the injunction.
At this interim stage of the proceedings I am unable to determine the truth of the claims each makes about the other presenting as a danger for the degradation of the property.
However, in order to grant injunctive relief it is not necessary for me to form a concluded view as to the existence of these adjudicational facts alleged by each of the parties, but rather simply determine whether there are serious issues to be tried as to their existence.[1]
[1]Yunghanns & Ors [1999] FamCA 64,[109].
Each of the parties accepted that this was the test to be applied to the facts in the case. Absent a consideration of the orders each party indicated would be appropriate, on each version there is a serious issue to be tried as to whether each of the parties has caused or allowed a degradation in the value of the property in the past and hence as to the likelihood that each may continue to do so pending its sale. That is, subject to the above qualification, each case has the capacity to establish a risk to the property.
I was urged by the parties to move from there to consider the balance of convenience to determine the matter.
On the question of the balance of convenience the husband, according to his affidavit, is currently on an invalidity pension as a result of injuries that he has sustained. Paragraph 78 of his affidavit asserts that he works eight hours per week in accordance with his medical restrictions. He, however, has already undertaken work on the property and currently stays at the property one week out of two in order to ensure that the property is secure and maintained.
For the wife, it was put that she is in good health, but works 15-24 hours per week on a neighbour’s farm. Accordingly she too has limitations (should she retain that employment) in the amount of time that she can devote to the preparation of the C Town property for sale. It was asserted to the Court that the wife would want to have the property operating as a going concern (it has been a commercial flower farm) for the purposes of sale. Although this was not expressed in the affidavit it was asserted as a matter of logic that this would be a better proposition. However, at [91] of her affidavit she asserted that little income had been derived from the flower business and so it is difficult to accept that it is necessary to establish it again as an operative farm in order to sell the property. She has an intervention order against the husband which, if she lived at the property, or worked at the property, would prohibit him from attending there. She further asserted that she had a high incentive to prepare the property for sale, as on her case she should receive the whole of the proceeds of sale and, even on the husband’s case, she should receive the majority of the proceeds of sale.
These considerations reveal that the balance of convenience is reasonably evenly balanced between the parties. It is reasonably evenly balanced where each also accepts that the other could access the property as long as subject to injunction. It is reasonably evenly balanced where each of the parties here accepts that there be an injunction against that party against damaging or reducing the value of the property.
The competing applications made by the parties are driven by a mutual desire for the property to be sold where each has an interest in the best sale of the property, without the property being devalued, and where each is prepared to have the other conduct preparation despite the case that each presents as to the risks that the other presents.
It is this last aspect, being that each of the parties considers that an injunction allowing the other access to the property would be appropriate, that is critical to the resolution of the applications for injunction. The grant of relief in this instance is discretionary. It is available where it is proper to grant the relief. In determining what is proper, consideration ought to be given to the question of what is necessary in the sense outlined in Waugh[2] where Lindenmayer, Coleman & Brown JJ required that the judge at first instance should have
considered whether the injunctions which he ultimately granted were necessary, and went no further than necessary, to prevent the abuse or frustration of the Court’s process in relation to the matter within its jurisdiction, particularly having regard to the nature of the wife’s claim in the property proceedings.
[2] In the Marriage of Waugh (2000) FLC 93-052, [45].
It is a serious matter to restrain a person by injunction from entering onto their own property. Where the point of the injunction is to preserve property the injunction must be necessary and no more than what is necessary to prevent the Court’s processes from being frustrated. Normally this will involve the identification of a risk sufficient to justify the grant of relief. Given the circumstances outlined above, in particular that each of the parties accepts that the other party could participate in the preparation of the property for sale I am not satisfied that an injunction beyond the one mutually agreed to by the parties is necessary. Absent such restraint being necessary it is not proper in the circumstances of this case to grant the relief.
Transfer of proceedings
The husband sought the transfer of the proceedings to either the Dandenong or Melbourne registries. The wife sought, although less than forcefully, the matter to remain in the Canberra registry. Both the Melbourne and Dandenong registries are significantly closer than the Canberra registry. In circumstances where, wherever it is held, it will be necessary to prepare a Family Report, and where locating the proceeding in Melbourne or Dandenong opens the possibility for the parties to commute on a daily basis for single day Court events, whereas the Canberra registry does not, then it appears to be able to be dealt with at more convenience to the parties in either of the other two registries. I will make orders for the transfer to the closest registry to the parties’ residence of the relevant Court.
What is the relevant Court?
The issue of whether this matter is appropriate for transfer to the Federal Circuit Court of Australia or retention in the Family Court of Australia was raised with the parties. The wife resisted the transfer of the matter to the Federal Circuit Court. Despite the fact that the only significant assets in the matter are a net pool of $250,000 or $300,000 of current assets (the expected range of sale price less debts for the C Town property) and a DFRDB pension based upon the husband’s invalidity, the wife asserted that it was a matter that would take three to four days and is complex.
The complexity is said to arise from the recent Federal Court case of Campbell v Superannuation Complaints Tribunal[3] where Logan J dealt with the characterisation of a benefit such as the husband’s DFRDB pension. These matters have subsequently been dealt with in the Full Court case of Welch & Abney.[4] For the wife it was asserted that the nature of this pension and the complexity of considerations surrounding it would justify the matter remaining in the Family Court. While there is some complexity that attaches to the consideration of this pension by virtue of the question as to how a value is to be assigned to the pension and how consideration is to be given to the true character of the pension, the availability of the Full Court authority of Welch & Abney gives clear authority by which to deal with it. Those factors do not render this case unsuitable for determination by the Federal Circuit Court. It does not involve a complex question of jurisdiction or law such as to justify the retention of the matter in the Family Court of Australia.
[3] [2016] FCA 808.
[4] [2016] FamCAFC 271.
Accordingly, I will transfer the matter to the Federal Circuit Court at Dandenong.
Costs
The husband sought costs in the event that an order was made for the transfer of the proceedings, on the basis that earlier attempts had been made on his behalf to secure the agreement to transfer the proceedings. The wife opposed a costs order. Section 117 of the Family Law Act 1975 sets out that the general rule is that each party to proceedings under this Act shall bear his or her own costs. A number of considerations are given as to the circumstances in which it may be justified to depart from this general rule. The parties mounted no arguments as to financial circumstances as being justifying of the order for costs. Neither party was said to be in receipt of legal aid. No particular issue as to the conduct of the proceedings, other than on the question of transfer, was raised in support of the application for costs. No question of failure to comply with previous orders of the Court was raised. It cannot be said that either party has been wholly unsuccessful in the proceedings. Before the hearing of the matter a range of issues were in contest relating not only to the proceedings for injunctions (proceedings in which each party has been unsuccessful) but also in relation to children’s orders. The parties were able to resolve the children’s question on the day of the interim hearing by consent. In relation to the question of whether an offer in writing was made for settlement, I was directed to correspondence in respect of an earlier transfer. This was but one matter within a suite of other matters being litigated at the hearing, and added nothing of significance to the conduct of the case.
Having considered the factors set out in s 117 I do not consider that there should be a departure from the usual rule that each party should bear his or her own costs. I decline to make an order for costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 May 2017.
Associate:
Date: 16 May 2017
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