Pappas and Ebner

[2009] FamCA 685

FAMILY COURT OF AUSTRALIA

PAPPAS & EBNER [2009] FamCA 685

FAMILY LAW – INJUNCTIONS

Family Law Act 1975 (Cth)

APPLICANT: Ms Pappas

RESPONDENT: Mr Ebner

FILE NUMBER: SYC 4655 of 2008

DATE DELIVERED: 3 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 3 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Bruce Stewart Dimarco Lawyers

Orders

1. That the Court notes the wife undertakes to the Court through her counsel to abide by any order the Court might make in relation to damages in the event the Court should hereafter be of the opinion that the husband shall have sustained any such damage by reason of these orders which the wife ought to pay.

2. That orders are made to continue pending further order in accordance with paragraphs 2, 3 and 4 of the wife’s Application in a Case filed on 19 December 2008 as set out hereunder;-

   2.THAT an injunction be granted restraining the husband from placing the property known as and situate at [B] in the State of New South Wales (“the [B] property”), on the market for sale, or otherwise taking any steps to sell the [B] property or dispose of his interest in such property, in whole or as to part.

   3.THAT an injunction be granted restraining the husband from further encumbering the [B] property.

   4.THAT the husband meet all the costs and repayments in respect of the mortgage to the National Australia Bank that is secured on the [B] property, as and when they fall due, and including any arrears.

3. That all costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Pappas & Ebner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4655 of 2008

MS PAPPAS

Applicant

And

MR EBNER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Pappas, to whom for convenience I shall refer as “the wife”, for various interlocutory orders.  The respondent is Mr Ebner and for convenience I shall refer to Mr Ebner as “the husband”. 

2. The first order sought by the wife is to the effect that an injunction be granted restraining the husband from placing the property known as and situate at B on the market for sale or otherwise taking any steps to sell the B property or dispose of his interest in such property in whole or as to part.  The wife also seeks an order to the effect that an injunction be granted restraining the husband from further encumbering the B property, and thirdly, the wife seeks an order to the effect that the husband meet all the costs and repayments with respect to the mortgage to the National Australia Bank that is secured over the said property as and when they fall due, including any arrears.

3. The husband seeks orders to the effect that the wife's application be dismissed and he also seeks an order in relation to costs.

4. The brief background matters are that the husband was born in 1960.  The wife was born in 1963.  They commenced cohabiting in 1991.  They married in September 1995.  They separated in July 2007 but continued to live under the same roof until the husband moved from the home on 4 November 2008.  There are two children of the marriage, J, who was born in December 1996, and S, who was born in April 1999.  On my calculation, the children are about 12 years and 10 years of age respectively. 

5. The husband moved out of the former matrimonial home, as I say, on 4 November 2008 in circumstances where the wife had obtained an apprehended violence order.  That was an order issued on 25 September 2008 for a period of 12 months and a requirement under that order was that the husband was to vacate the home by 7 November 2008.

6. The wife's case in a nutshell is that she wishes to preserve this home.  She says this is her home and that of the children and that she is living in the home and wants to retain the home.  She said that there is ample property owned by these parties to enable this Court ultimately, in the exercise of its jurisdiction pursuant to s 79 of the Act to make an order which would be just and equitable on the basis that she would be able to enjoy the former matrimonial home in addition to the property which she has.  It seems to be common ground that the value of the property has dropped somewhat dramatically presumably in line with general reductions in property values in the eastern suburbs and particularly B in recent times.  That property has a value of approximately $3 million.  The wife says that the parties' overall property pool comes to a value of about $8 million bearing in mind the drop in value of the former matrimonial home.  It is said on behalf of the wife that it is the husband who is in the better position to be able to continue to meet the mortgage repayments.  It is said on her behalf that at the time that the parties separated the wife understands that there was little or no encumbrance against the former matrimonial home but since the parties separated the husband, on numerous occasions, has drawn down against that mortgage so that the current indebtedness is significant.  Somewhere between $700 000 or $800 000 or perhaps even more.

7. The husband says that he has fallen on hard times, that he has found it difficult to make ends meet in the aftermath of the breakdown of the marriage and particularly by no longer living in the former matrimonial home.  He says that he is living in a one-bedroom unit owned by his mother in Sydney City which does not provide appropriate accommodation for the children when they are in his care.  He says that in all the circumstances it would be unreasonable for him to be expected to continue to meet the mortgage on the home when the wife has available to her resources from which she can meet those costs.  He also says that it would be unfair to bring about a situation where in view of the husband's objection to the injunction, he wishing to sell the property on the basis that it would not be sensible for the parties to have their pool of property and assets diminished by what have now become quite heavy liabilities in terms of a now substantial mortgage and that it would be better in the overall circumstances of everybody concerned and the children for the property to be sold.

8. It is said on behalf of the wife that not only does the wife wish to have this property as the major part of her property settlement and that in any event the Court would be able to make such an order given the size of the matrimonial pool of property, but there are other reasons why the wife wishes to preserve this property.  Unfortunately the wife has suffered from very serious health difficulties.  She is suffering from cancer.  She has suffered a double mastectomy.  She says her medical practitioners have recommended that she has ongoing surgery and that this is very difficult, as one could imagine, for her.  She has Dr C on record as saying that her capacity for full or part-time employment is severely affected by surgical trauma and her ability to recover.  Dr G says that if the wife had to cope with selling the home and relocate she might well decompensate and become overly anxious and depressed.  So not only does the wife say that this property is her home and that of the children, but in terms of her health she is likely to be achieving better outcomes I think if she is able to continue to enjoy her home and particularly if she is not put through the likely difficulty of having to go through a sale of the home and then relocate the residence of herself and her children.

9. It is said on behalf of the husband that in circumstances where the value of the property is diminished, the husband ought to be permitted to sell this property which is registered in his sole name.  It is said on his behalf that really what the Court should bear in mind is that this might well be a tactical move by the wife, which would follow what inferentially was suggested was a tactical manoeuvre by the wife in terms of the apprehended violence order and that she is embarking on some pattern not only to get the husband out of the home but to preserve this home and have him pay the mortgage repayments as well.  The inference is that this is somehow part of an overall strategy against the husband. 

10. In any event, learned counsel for the husband says that the Court should be somewhat cautious about accepting the wife's reasons for wanting to hold on to the former matrimonial home in circumstances where it is said that the Court should not accept that this is a family home of any long standing on the basis that it was acquired in 2004 and the parties separated in 2007.  I must say I would have thought that a family home of five years' duration would be an important asset for anybody.  It is said that the wife has other property in any event from which she would either be able to provide for her accommodation and that of the children or, if the Court was minded that it was appropriate to put the injunction in place, out of which she could pay the mortgage repayments.  It is said that the husband faces a shortfall as set out in his affidavit of his expenditure compared with the income that he has to meet that expenditure of a couple of thousand dollars a month and in any event he is not in a position to be able to pay for the mortgage.

11. In my view, clearly the pendulum swings in favour of preservation of this home.  There is ample jurisdiction for this Court to preserve property and we know that s 114 of the Act extends to that.  I would have thought on any broad view of this, and certainly on the broad view that I take of it, there is a real likelihood that the wife will retain this home given the substantial value of the matrimonial property, even bearing in mind those assets which she currently has and presumably wishes to keep.  But in my view the prejudice which would flow to the wife if the husband was simply permitted to go ahead and sell this home would be much greater than whatever the prejudice would be flowing to the husband by stopping him from selling this property and converting it into cash.  In my view, therefore, the injunction should be ordered.  So far as the mortgage repayments are concerned I do not have a detailed knowledge of the parties' financial circumstances.  Much more will need to be done to get to the bottom of what each of them have.  There was a very powerful submission made on behalf of the wife to the extent that the husband's financial circumstances are almost certainly better than he is presenting at this point.  I am not sure about that.  But in any event I am sufficiently confident that he has the capacity to be able to rearrange his financial affairs to meet the demands of the mortgage.  In circumstances where he drew those funds down, I am unpersuaded that it is going to cause a hardship to the husband if he is required under order of this Court to continue to fund the mortgage. 

12. So in my view the wife has made out her application at least in respect of those three orders.  I propose to make these orders.  I have noted that the wife gives the usual undertaking in relation to damages.

I certify that the preceding twelve (12) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston

Associate:     

Date:              31 July 2009