Park & Park
[2024] FedCFamC2F 1817
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Park & Park [2024] FedCFamC2F 1817
File number(s): ADC 4025 of 2024 Judgment of: JUDGE DICKSON Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – FINANCIAL – Interim proceedings – Where both parties seek sole use and occupancy of the former matrimonial home – Where the applicant wife seeks further interim orders for lump sum interim spousal maintenance, a partial property settlement and injunctive relief – Where the respondent husband broadly opposes the wife’s application but makes a counter proposal for financial support – Orders for lump sum interim spousal maintenance of $35,000 in favour of the applicant wife – Orders for a partial property settlement of $35,000 in favour of the applicant wife – Orders for the respondent husband to have sole use and occupancy of the former matrimonial home until final orders can be made. Legislation: Family Law Act 1975 (Cth) ss 74, 79, 79A, 114.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.18, 12.06.
Cases cited: Bevan & Bevan (1995) FLC 92-600
Fewster & Drake (2016) FLC 93-745
Gabel & Yardley [2008] FamCAFC 162
Hall & Hall (2016) FLC 93-709
Maroney & Maroney [2009] FamCAFC 45
Pirani & Pirani (No 3) [2023] FedCFamC1F 561
Sresbodan & Sresbodan [2013] FamCA 480
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Valentini & Valentini [2024] FedCFamC1F 602
Division: Division 2 Family Law Number of paragraphs: 79 Date of hearing: 3 December 2024 Place: Adelaide Counsel for the Applicant: T. Hume Solicitor for the Applicant: Eastern Legal Counsel for the Respondent: T. Lewis SC Solicitor for the Respondent: Norman Waterhouse Lawyers ORDERS
ADC 4025 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PARK
Applicant
AND: MR PARK
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.Pursuant to section 74(1) of the Family Law Act 1975 (Cth), the Respondent Husband do pay to the Applicant Wife by way of lump sum interim spousal maintenance, the sum of THIRTY-FIVE THOUSAND DOLLARS, with such sum to be paid to the Applicant Wife’s nominated bank account by no later than 4.00pm on 23 December 2024.
2.Pursuant to section 79 of the Family Law Act 1975 (Cth), the Respondent Husband do pay to the Applicant Wife by way of partial property settlement, the sum of THIRTY-FIVE THOUSAND DOLLARS, with such sum to be paid to the Applicant Wife’s nominated bank account by no later than 4.00pm on 23 December 2024.
3.The Respondent Husband shall have sole use and occupation of the property situate at 1 B Street, Town D in the State of South Australia (‘the Town D property’).
4.Within fourteen (14) days of the date hereof, the Applicant Wife shall provide to the Respondent Husband a list of her personal effects, clothing and any employment related materials that she seeks be returned to her from the Town D property.
5.Within fourteen (14) days thereafter, the Respondent Husband shall at his sole expense cause the agreed list of items referred to in paragraph 4 herein, to be delivered to the Applicant Wife by way of an independent removalist and with the cost of such removalist to be borne solely by the Respondent Husband.
6.The Applicant Wife’s affidavit filed 22 November 2024 is hereby uplifted and removed from the Court file.
7.All interim financial applications are hereby dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The Applicant Wife, Ms Park, and the Respondent Husband, Mr Park, are in dispute over all manner of things arising from the breakdown of their marriage.
These Reasons concern competing interim applications regarding financial support and property. Central to the dispute are competing applications for sole use and occupation wherein Mr and Ms Park each seek to live in their former matrimonial home situate at 1 B Street, Town D in South Australia (‘the Town D property’). Ms Park also seeks orders for spousal maintenance and injunctions. Mr Park broadly opposes her applications but counters with a proposal for Ms Park’s financial support.
Further arguments over parenting are to come. Ms Park has now amended her application to seek orders for parental responsibility and living arrangements for the parties’ two children. That application has been listed for directions on 30 January 2025 to await the filing of Mr Park’s responding documents.
To their credit, the parties were able to agree some aspects of their respective applications which were the subject of consent orders. The Court has also listed the matter for an expedited Trial on all issues commencing on 26 May 2025 for five days. The retention of that date for final hearing will depend on the date for publication of a private Family Assessment Report, the particulars of which are yet to be agreed.
The parties’ competing interim applications on financial matters proceeded to argument on 3 December 2024. These are the Court’s Reasons arising from the said hearing.
DOCUMENTS RELIED UPON
At hearing, Ms Park relied upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 28 November 2024;
(2)Initiating Application filed 21 August 2024;
(3)Affidavit of Ms Park filed 21 August 2024;
(4)Financial Statement filed 21 August 2024; and
(5)Costs Notice filed 28 November 2024 pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
At hearing, Mr Park relied upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 27 November 2024;
(2)Amended Response to Initiating Application filed 16 October 2024;
(3)Affidavits of Mr Park filed 24 September 2024 and 6 November 2024;
(4)Financial Statement filed 24 September 2024;
(5)Costs Notice pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(6)Exhibit H1 being a bundle of correspondence between the solicitors for the parties in relation to issues of disclosure.
At hearing, some unforeseen controversies arose. The first related to an instruction provided by Mr Park on the day of hearing that Ms Park’s then solicitors, E Law Firm, had provided advice to the parties some years earlier. The conflict was conceded to the extent that an alternate solicitor was urgently arranged for Ms Park and E Law Firm withdrew.
The second controversy arose in relation to an Affidavit filed by Ms Park on 22 November 2024 pursuant to an order made on 11 October 2024 which gave her leave to file an affidavit strictly in reply to that of Mr Park.
On 2 December 2024, Mr Park filed an urgent Application in a Proceeding seeking orders that Ms Park’s affidavit filed 22 November 2024 be struck out either in full or in part. Mr Park complained that the affidavit did not strictly comply with the orders made on 11 October 2024 and was filed in breach of rule 8.18 of the Federal Circuit and Family Court of Australia Rules 2021.
On 27 November 2024, Ms Park also filed an urgent Application in a Proceeding seeking to rely at the interim hearing on an affidavit which purported to analyse Mr Park’s bank and credit card statements and to put evidence before the Court of her pay slips. Mr Park opposed the reliance on the affidavit at the hearing but did not seek that the affidavit be uplifted.
Ultimately, Ms Park elected to proceed to argument without relying on the two controversial affidavits filed respectively by her on 22 and 27 November 2024. In my view, this was a sensible decision because it meant that the Court could proceed to determine the more pressing issues without further delay.
The parties are still unable to agree as to whether Ms Park’s affidavit in reply filed on 22 November 2024 should remain on the Court file or be uplifted. This issue also requires a ruling from the Court.
ORDERS SOUGHT
In her Initiating Application filed 21 August 2024, Ms Park sought interim orders in the following terms:
4.From 14 days of the date of this Order, the wife have sole use and occupancy of the former matrimonial home at [1 B Street, Town D] SA.
5.That in the alternative to paragraph 4 herein, that upon the wife giving the husband 24 hours’ written notice (by email or text), the wife be allowed access to the former matrimonial home at [1 B Street, Town D], together with any real estate agent or valuer the wife chooses to bring with her and also for the purpose of the wife retrieving her personal belongings.
6.The husband be restrained and an injunction be granted restraining him from disposing of or damaging any of the wife's personal belongings or [work] resources.
7.That by way of interim spousal maintenance, the husband do pay to the wife:
7.1. A lump sum of $15,000.00 to enable her to re-establish new accommodation or purchase essential items for the former matrimonial home if she obtains a sole use and occupancy Order from the Court; and
7.2. In the event that the wife is granted an Order for the sole use and occupancy of the former matrimonial home, the sum of FIVE HUNDRED DOLLARS ($500.00) per week but in the event that the wife is not granted an Order for sole use and occupancy of the former matrimonial home, the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per week; and
7.3. In the alternative to paragraph 7.2 herein, in the event that the wife is granted an Order for the sole use and occupancy of the former matrimonial home, a lump sum of the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) but in the event that the wife is not granted an Order for sole use and occupancy of the former matrimonial home, the sum of FIFTY THOUSAND DOLLARS ($50,000.00).
In his Amended Response to Initiating Application filed 16 October 2024, Mr Park seeks interim orders in the following terms:
3. That within forty-eight (48) hours of the date of this Order the husband do pay to the wife from [C Bank] account number ending […]16:
3.1. the sum of TWENTY THOUSAND DOLLARS ($20,000) to be characterised as lump sum spousal maintenance; and
3.2. the sum of THIRTY THOUSAND DOLLARS ($30,000) to be characterised by partial property settlement.
…
5. That the husband have the sole use and occupation of the [Town D] property and the wife be restrained and an injunction be granted restraining the wife from attending at the [Town D] (sic) property without the husband's prior written consent.
At hearing, Mr Park orally amended the proposed orders to increase the sum of partial property settlement to $50,000 to Ms Park but maintained a lump sum spousal maintenance amount of $20,000.[1]
[1] Mr Park also orally amended the sum to be received by him to $30,000 by way of litigation funding rather than $50,000 by way of partial property settlement. This amended position was ultimately the subject of agreement.
Mr Park opposed the order sought by Ms Park that she be able to access the Town D property to collect her belongings. He counter offered for Ms Park to provide a list of items for him to consider and that such agreed items would then be provided to her.
BACKGROUND
Ms Park was born in 1970 and is now 54 years of age. Mr Park was born in 1976 and is now 48 years of age. Ms Park works part-time as an educator and Mr Park works full-time as a professional.
The parties have two children together, namely X born in 2005, now aged 15 years and Y born in 2011, now aged 13 years. Ms Park also has an adult child from a previous relationship, namely Ms F now aged 19 years.
The parties commenced a relationship in 2008 and commenced cohabitation in late 2008. They were married in 2009 and separated on 16 January 2024 (according to Ms Park) or 6 March 2024 (according to Mr Park). The parties do agree that in March 2024, Ms Park moved into the home of her parents with X. Mr Park has remained living at the Town D property with Y.
An unfortunate consequence of the parties’ separation is that X and Y are now living in separate homes and have no contact with each other or with their other parent. The family has, quite literally, been divided in half.
Another interesting aspect of this case is that the parties and members of the maternal and paternal families all live in close proximity with each other. Mr Park and Y live in the Town D property being 1 B Street. Ms Park, X and Ms F live with the maternal grandparents at 3 B Street. The paternal grandparents live at 2 B Street.
Mr and Ms Park and their children live closeby from each other at the date of hearing. Despite the close proximity of their respective residences, their positions on a whole range of issues could not be further apart.
ISSUES IN DISPUTE
The issues at interim hearing can be summarised as follows:
(1)Whether or not Ms Park or Mr Park should be permitted to reside in the Town D property pending Trial;
(2)The payment of spousal maintenance to Ms Park by Mr Park and whether or not such payment should be by way of periodic spousal maintenance, lump sum or some other variation;
(3)Whether or not Ms Park should receive a lump sum to be characterised as partial property settlement;
(4)Whether or not Ms Park should be permitted to attend at the Town D property to retrieve her personal property and work resources; and
(5)Whether or not an injunction should be made restraining Mr Park from disposing of or damaging any of Ms Park’s personal property and work resource pending collection.
NATURE OF AN INTERIM HEARING
It is important for the parties to understand that this is an interim hearing. The evidence available at an interim hearing is limited in nature. I do not have the opportunity to hear evidence from the parties or to see them cross-examined. I am unable to make findings about the evidence or to test the veracity of each parties’ allegations.
Given the nature of the hearing, I am unable to resolve the various factual disputes between the parties. It was because of the large number of disputed issues that the Court made arrangements to list the matter for an expedited Trial commencing 26 May 2025.
MS PARK’S POSITION
Ms Park contends that she initially issued the Court proceedings because of a failure by Mr Park to provide her with proper financial disclosure.[2] Ms Park alleges that Mr Park has controlled the family finances during the marriage and post-separation.
[2] See the Affidavit of Ms Park filed 21 August 2024 at paragraph 5
Further, Ms Park complains that between 11 April 2023 and 4 January 2024 Mr Park transferred the sum of $577,043.09 from an account in her name to another account with G Bank. Despite the accounts being in her sole name, Ms Park alleges that Mr Park refused her access to those accounts and then refused to disclose where the funds had been disbursed.[3]
[3] See the Affidavit of Ms Park filed 21 August 2024 at paragraphs 32 to 34.
It is her case that at the date of physical separation in March 2024, the parties verbally agreed that Y would live equally between them. Further, that she would not have left the Town D property without such an agreement being in place. Since 18 March 2024, Ms Park alleges that she has not been allowed to spend any time alone with Y. She fears that Y’s express wish not to see her is as a direct result of Mr Park’s interference and that Y’s wishes are being influenced by his father.
She alleges that Mr Park has engaged in behaviour which is “abusive, coercive and controlling” throughout the relationship and since separation.[4] The alleged behaviour encompasses all aspects of their married life ranging from a refusal to assist with domestic chores, controlling the expenditure of joint finances both during the relationship and post-separation, making derogatory and demeaning comments to Ms Park and behaving in a way which she asserts has made the children “scared and less confident.” Ms Park describes now being under the care of a psychologist and with her self-esteem being “in tatters.”
[4] See the Affidavit of Ms Park filed 21 August 2024 at paragraph 19.
Ms Park currently works part-time as an educator. When not working, Ms Park provides significant assistance to X, who has several health conditions. X also suffers from anxiety which means that she cannot be left alone. [5] Ms Park has recently commenced paying weekly board to her parents in the sum of $100 per week. Ms Park aspires to move into independent accommodation with X because of concern that Mr Park may act irrationally and potentially cause physical harm to herself, X or her parents if he is unsuccessful in these proceedings.[6]
[5] See the Affidavit of Ms Park filed 21 August 2024 at paragraphs 35 to 37.
[6] See the Affidavit of Ms Park filed 21 August 2024 at paragraphs 38.
In her Financial Statement Ms Park deposes to having a gross weekly income of $1,358 and total personal expenditure of $1,610 per week. Child Support for X paid by Mr Park is $244 per week. She has modest savings. From her point of view, it would be preferable if she could move back into the Town D property which is unencumbered and close to her parents, who offer significant support.
MR PARK’S POSITION
Mr Park denies the allegations of family violence and coercive control alleged by Ms Park. He alleges that it was Ms Park who verbally abused him to the point where he was made to feel “small and unimportant.” He says that he felt humiliated and embarrassed, and that Ms Park’s comments affected his self-esteem. Further, that she used obscene language directed towards him in the presence of the children.[7]
[7] See the Affidavit of Mr Park filed 24 September 2024 at paragraphs 15 and 17.
Mr Park denies the allegations of financial control. He states that Ms Park had access to joint accounts and the use of a personal credit card which had a $10,000 per month credit limit. He describes being frugal in comparison to his wife, who allegedly enjoyed “expensive dinners and overseas travel.”[8]
[8] See the Affidavit of Mr Park filed 24 September 2024 at paragraph 59.
Mr Park contends that prior to separation Ms Park formed an intimate relationship with Mr J. Mr J lives in the United States and works in the hospitality industry. Mr Park is of the view that the relationship between Ms Park and Mr J commenced prior to separation. He believes that Ms Park has been less than transparent about her relationship with Mr J, including failing to disclose an overseas holiday which took place at or about the time that Ms Park’s application for sole use of the Town D property and urgent financial relief came before the Court.
Mr Park admits having transferred funds from a joint account into a bank account in his sole name after Ms Park attempted to access an account in her sole name holding joint savings in the sum of $370,000. To stop her doing so, Mr Park transferred the funds into an account in his sole name.[9]
[9] See the Affidavit of Mr Park filed 24 September 2024 at paragraph 38.
Mr Park asserts that prior to separation he applied the parties’ joint funds to the payments of school fees for both children in the sum of $19,808, Capital Gains Tax for the sale of shares in the sum of $31,612 and $159,933 for Y’s full private school fees at H School for the balance of his education.[10]
[10] See the Affidavit of Mr Park filed 24 September 2024 at paragraph 40.
The remaining balance of $161,852 has now been the subject of several consent orders where the parties have agreed to each receive a sum of money for the payment of their legal costs.
Mr Park denies that he has manipulated Y, arguing that Y has formed his own view about seeing his mother based on her behaviour.[11] He says that prior to separation, he had a close and loving relationship with X which is now only able to be maintained using text messages. Mr Park contends that he is alarmed to read about the status of X’s health as described in Ms Park’s affidavit and that he has sought an update about X’s health.
[11] See the Affidavit of Mr Park filed 24 September 2024 at paragraph 26.
Mr Park denies that he has any capacity to pay periodic spousal maintenance to Ms Park. He proposes lump sum amounts from the parties’ joint funds to satisfy her claim. Mr Park argues that there is no reason why Ms Park could not work full-time as she has done in previous years. Mr Park pays child support as assessed in the sum of $244.36 per week for X.
Mr Park opposes Ms Park’s application that he vacates the Town D property and move elsewhere. He denies the general allegations of anticipatory violence towards Ms Park and her family if unsuccessful in his applications. Mr Park is prepared to return Ms Park’s personal effects and work resources to her. He opposes Ms Park being able to re-enter the home alleging that there have been angry confrontations when this has occurred previously.
LEGAL PRINCIPLES
It is appropriate in this case that I first address the competing applications for sole use and occupation of the Town D property. This is because the determination of this issue will have flow on effects to the balance of the proposed orders.
Exclusive Occupation
The power to make an injunctive order for sole use and occupation of a property arises by virtue of section 114 of the Family Law Act 1975 (Cth) (‘the Act’).
The facts of this case differ from many of the reported authorities in that the parties no longer reside under the one roof. It is an agreed fact that Ms Park moved out of the Town D property in March 2024. Ms Park now seeks to move back into the home and have Mr Park move out to reside elsewhere pending final determination by the Court of their respective applications for property settlement.
In Valentini & Valentini [2024] FedCFamC1F 602, Schonell J helpfully summarised the relevant law in relation to exclusive occupation as follows:[12]
[12] Valentini & Valentini [2024] FedCFamC1F 602 at [31]-[36] (Schonell J).
31.The power of the Court to grant an injunction for exclusive use and occupation rests in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It involves the exercise of a discretion, and an order will be made if it is proper to do so.
32.Section 114 of the Act relevantly provides that:
(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:
…
(f)an injunction relating to the use or occupancy of the matrimonial home.
…
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
33.In Mullane v Mullane (1983) 158 CLR 436, the High Court distinguished that "an interest in property is a right of a proprietary nature, not a mere personal right". The High Court observed that, "an order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property…"
34.In Naylen & Naylen [2021] FamCA 392, McEvoy J canvassed the authorities relevant to this type of application and observed:
29. 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.
30. 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.
35.These are interim proceedings and there has been no cross examination. There are numerous factual controversies, which I am in the circumscribed nature of these proceedings unable to resolve. I am left to determine the matter on the basis of the undisputed facts and consistent with the guidance provided by the authorities referred to above.
36.In Dickinson & Packam [2021] FamCA 298, McClelland DCJ observed:
25.In my view, it is appropriate for the Court to consider an application for orders for the exclusive occupation of a property in two stages. The first stage involves considering whether the circumstances of the parties are such that an order for exclusive occupation is necessary. If the answer to that first question is in the affirmative, the second question involves considering which party should have the right of exclusive occupation.
Partial Property Orders
The law in relation to interim property settlements in this jurisdiction is well established.
If an interim property order is to be made, the order must be granted under a power to make such orders and the issues attaching to the exercise of such power must be taken into account.
In this case, Mr Park seeks an order for partial property settlement in favour of Ms Park pursuant to section 79 of the Act which confers on the Court a power to make orders for the adjustment of property between parties. While there is only a single exercise of power under section 79, the Court may exercise the power through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[13]
[13] Gabel & Yardley [2008] FamCAFC 162 at [57] (Bryant CJ and Coleman J).
The overarching consideration is the interests of justice. Whilst it is not necessary for an applicant to establish compelling reasons, the majority of the Full Court have held that regard is to be had to the fact that the usual order pursuant to section 79 of the Act is a “once and for all order made after a final hearing.”[14] This has been referred to as the ‘procedural step.’
[14] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (Boland, Thackray & O’Ryan JJ).
The second stage is the ‘substantive step’. With respect to the second stage of the process, the majority have held that:
In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provision of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.[15]
[15] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [135] (Boland, Thackray & O’Ryan JJ).
A “conservative approach” is said to apply to any interim application because the Court is not able to properly evaluate the evidence.[16]
[16] Sresbodan & Sresbodan [2013] FamCA 480.
It is considered sufficient if the applicant would be likely to receive by way of property settlement a sum sufficient to cover the advance. This is commonly referred to as the ‘claw back issue.’[17]
[17] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [137] (Boland & O’Ryan JJ).
In exercising the power under section 79 of the Act, it is important for the Court to ensure that it is just and equitable to make the order sought in circumstances where the power will not be exhausted by an interim order.[18]
[18] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [136] (Boland & O’Ryan JJ).
The interim order must be capable of variation or reversal without variation or reversal without recourse to section 79A of the Act or appeal.[19]
[19] Gabel & Yardley [2008] FamCAFC 162.
Importantly, more is required than the mere fact that upon a final hearing an applicant would receive the property being sought (or an amount more than funds being sought) from the other party.[20]
[20] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [139].
The exercise of jurisdiction should be conducted in the context of and with the appreciation that as a generality, the interests of the parties and the Court are better served by there being one final hearing of section 79 proceedings.[21]
[21] Sresbodan & Sresbodan [2013] FamCA 480.
Spousal Maintenance
The power to make an order for the maintenance of a party to a marriage is found in section 74(1) of the Act.
The Court may make an order that it considers proper for the provision of maintenance.
The High Court in Hall & Hall (2016) FLC 93-709 at [8] (‘Hall & Hall’) considered the process for making an interim order for maintenance from the process for the making of an urgent order:
8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
(Footnotes omitted)
Mr Park must be seen as accepting that Ms Park has overcome the threshold requirement for financial support as referred to in Hall & Hall because he offers an amount of $20,000 by way of lump sum spousal maintenance.
Ms Park seeks interim spousal maintenance including a lump sum amount of $15,000 for what might be described as “re-establishment costs.” In addition, she seeks periodic spousal maintenance of either $500 or $1,500 per week and lump sum amounts of $25,000 or $50,000, dependent on the orders from the Court regarding sole use and occupation of the Town D property.
Mr Park opposes any payment of periodic spousal maintenance arguing that he cannot afford to do so. This is alleged despite his income being $3,755 gross per week whilst residing in a freehold property. Mr Park is also relieved of the payment of private school fees for Y after a lump sum amount was withdrawn by him from the parties’ joint savings and applied to H School for the balance of Y’s education.
An interim spousal maintenance order may be satisfied from capital.[22]
[22] Maroney & Maroney [2009] FamCAFC 45 at [14]-[35].
There is also a competing view that an applicant is not required to use their capital to support themselves.[23]
[23] Bevan & Bevan (1995) FLC 92-600.
CONCLUSION
It is my assessment that the occupation of the Town D property has become a metaphorical ‘flashpoint’ between the parties.
During their marriage, the parties invested a lot of time, money and energy on planning and developing the Town D property. They each seek to retain it by way of final order. From Ms Park’s point of view, she owned the land at the Town D property prior to marriage and she would like to live near her parents. Mr Park argues that he invested the sale proceeds from his home at Town K in the sum of $660,000 into the construction of the Town D home and he too would like to live near his parents.
The Town D property has now been valued by a joint expert at $2.4 million.
Weighing up the parties competing proposals, I have formed the view that it is proper to make an order in favour of Mr Park for sole use and occupation of the Town D property pending final determination of the parties’ property applications. My order should not be seen as a predetermination of which party will ultimately retain the Town D property at Trial. Such an order reflects the status quo ante that has been in place since March 2024. The balance of convenience supports such an order being made. An order is necessary to ensure that neither party ‘jockey for position’ in the lead up to Trial and seek to disrupt the current arrangements.
As I have already remarked, with a Trial date so close the Court wishes to avoid a situation where the current living arrangements are reversed, only to have them up-ended again on a final basis. Mr Park’s counsel rightly complains that Ms Park has not put before the Court any evidence to date confirming that she has the capacity to purchase Mr Park’s share in the home. That may yet come but at this interim stage it is an important factor in considering whether to allow Ms Park to move back into the property pending Trial.
Whilst not the subject of submissions, I also cannot ignore the possibility of Mr Park and Y moving from the Town D property to reside nearby with his parents at 2 B Street. In my view, this would be an intolerable situation and one that Ms Park would not want given her allegations of retaliatory family violence should Mr Park not succeed on his application.
As to the issue of spousal maintenance, I have formed the view that it is proper to make an order for lump sum spousal maintenance and for a capitalised amount in the quantum sought by Ms Park should she not succeed in securing an order to return to the Town D property.
The Trial is listed to commence on 26 May 2025. That is just over 22 weeks from the date of this Judgment. Ms Park seeks $1,500 per week in periodic spousal maintenance. I propose to order a lump sum of $35,000 to cover the period backdated to the date of hearing and then to the date of Trial. I am satisfied that any adjustment that may be warranted using capital to pay spousal maintenance on a final basis, is easily able to be achieved at Trial given the size of the asset pool.[24]
[24] Fewster & Drake (2016) FLC 93-745.
In making these orders, I note that it is surprising that Ms Park chose to travel overseas for a holiday at about the time that she filed an application pleading financial hardship. The Court observes that Ms Park is an adult and free to arrange her personal affairs as she sees fit. However, details of the proposed travel were noticeably absent from Ms Park’s affidavits.
The duty of disclosure is absolute and exists not only as a duty to the other party, but also to the Court. The duty extends not only to the production of documents but also to information relevant to the dispute.[25]
[25] Pirani & Pirani (No 3) [2023] FedCFamC1F 561.
Ms Park’s lack of disclosure and transparency about this issue cause me to proceed with caution at this interim stage.
I consider that the balance of the funds offered by Mr Park should be paid as partial property to Ms Park. It would behove Ms Park to keep an exact accounting of where those funds are spent to reduce any ‘add-back’ arguments at Trial.
I do not propose to permit Ms Park to return to the Town D home to collect an unidentified number of belongings. I propose to order that she provide a list of those items to Mr Park for him to locate and return to her via the use of a private removalist. I am not told as to the size of the items or number of them. I am not told if the items need to be the subject of a valuation. Doing the best that I can, on the limited evidence before the Court, I propose Ms Park to provide a list of items and for Mr Park to return the agreed items to Ms Park at his sole expense. The use of a paid removalist may seem excessive but, in this case, where controversy abounds, I consider it a small cost to avoid further disputation. I decline to make any injunctive order. The order sought by Ms Park was not the subject of evidence or submission.
Finally, I consider that Ms Park’s affidavit filed 22 November 2024 should be uplifted from the Court file. It is conceded that the affidavit does not comply with the terms of paragraph 7 of the orders made on 11 October 2024 because the content of the affidavit is not strictly in reply. The wording of my order was deliberately used to avoid this very thing from happening. Orders mean what they say. The order was clear in its terms. The affidavit did not comply with the order of the Court. I, therefore, propose to exercise my discretion to have the affidavit filed 22 November 2024 uplifted.
For all of the above reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 20 December 2024
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