Peskos & Tarpin
[2021] FedCFamC2F 301
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Peskos & Tarpin [2021] FedCFamC2F 301
File number(s): PAC 4149 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY PROCEEDINGS – application to subdivide a property and obtain Strata Plan – where the Husband is the sole registered proprietor – where the Husband resists any property adjustment on a final basis – where the Wife bears the evidentiary onus to establish the necessary preconditions – where there is no evidence as to whether a subdivision could be achieved, the potential cost of a subdivision, or as to the value of the property at current or were it to be subdivided – application dismissed Legislation: Environmental Planning and Assessment Act 1979;
Family Law Act 1975 (Cth) ss 79, 114(1), 114(3).Cases cited: Farr and Farr (1976) FLC 90-133;
Massalski and Riley [2016] FamCA 144;
Perot and Perot [2012] FamCA 958;
Sieling & Sieling (1979) FLC 90-627.
Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 25 October 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Apex Legal Counsel for the Respondent: Mr Grew Solicitor for the Respondent: Nora Family Lawyers ORDERS
PAC 4149 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PESKOS
Applicant
AND: MR TARPIN
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the Wife on 29 July 2021 is dismissed.
2.The matter is listed for submissions as to costs and further Directions at 10:00 am on 16 November 2021.
3.By no later than 4pm on 12 November 2021 the parties are to:-
(a)file and serve a Costs Notice in accordance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
(b)file and serve an Undertaking as to Disclosure pursuant to Rules 6.02 and 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(c)file and serve a Financial Questionnaire in accordance with the form available on the Court’s website.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Peskos & Tarpin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
The interim Application for determination by the Court seeks orders with respect to the property at B Street, Suburb C in the state of New South Wales (“the property”). The Husband is the sole registered proprietor of the property.
By way of the Proposed Minute of Order marked as Exhibit A the Wife seeks Orders in summary that:-
(a)the parties do all things necessary to cause the completion of the subdivision and obtaining of the Strata Plan for the property;
(b)the Wife be appointed as Trustee for the Husband for the property for the purposes of obtaining registration of a Strata Plan. In this regard the Wife be at liberty to cause to be carried out works as is reasonably necessary to obtain registration of the strata plan including attending upon the property and allowing others to attend upon the property as is necessary to undertake necessary works and inspections; and
(c)the husband be restrained from doing any act or thing that would impede the obtaining of the registration of the strata plan for the property.
In support of the relief sought the Wife relies upon:-
(a)the Application in a Case filed on 27 July 2021;
(b)the Affidavit of the Wife filed 27 July 2021;
(c)the Outline of Case Document (Interim Hearing) filed 22 October 2021; and
(d)letter from the Wife’s solicitors to the Husband’s solicitors dated 25 October 2021 which is now marked as Exhibit D.
The Respondent Husband’s Response seeks a dismissal of the Wife’s Application together with an Order that the Wife pay the Husband’s costs of and incidental to the interim application.
The Husband relies upon:
(a)The Response to an Application in a Case filed 20 October 2021;
(b)The Husband’s Affidavit filed 20 October 2021;
(c)The Outline of Case Document (Interim Hearing) filed 22 October 2021; and
(d)The material tendered during the course of the interim hearing marked as Exhibit C.
CONTEXT
The Husband was born in 1976 and is 45years of age. He is employed as a tradesman.
The Wife was born in 1979 and is 42 years of age. She is employed as a Manager.
The Husband asserts the parties met in approximately 2001 and commenced living together subsequent their marriage in 2004.
The parties have two children; X born in 2006 and Y born in 2009. The children live with the Wife and spend time with the Husband on alternate weekends from Friday afternoon/evening to Sunday.
It is the Husband’s evidence that the parties first separated in February 2009 and reconciled in January/February 2013. The Wife asserts that the parties only separated for a period of 3 months during 2009.
The Husband deposes that the parties’ second separation occurred in mid-2016 with the parties reconciling in April/May 2017. The Wife asserts that the parties separated for a further period of 3 months only in 2016.
The parties separated on a final basis in April 2018.
On a final basis the Wife seeks relief pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) that she receive an overall percentage division of 75% of the asset pool. To effect this the Wife seeks orders that:-
(a)the parties do all things necessary including sharing equally the costs to subdivide the property into two lots (“lot A and lot B”);
(b)the Husband thereafter discharge any liability charged against Lot A and transfer it to the Wife together with the payment of such sum as is required to effect an overall property distribution of 75% to the Wife; and
(c)the Wife obtain the benefit of a superannuation splitting order of 75% of the Husband’s superannuation entitlements.
On a final basis the Husband opposes the making of orders as to any adjustment of property between the parties. He asserts that the parties ought to retain their current legal interests in their property.
THE PROPERTY
The property was purchased by the Husband on 4 December 2001 for the sum of $425,000.00. This pre dates the commencement of the parties’ relationship.
Annexure B to the Wife’s Affidavit filed in support of her Application is a Notice of Determination dated 3 October 2013 issued by the D City Council under the Environmental Planning and Assessment Act 1979. Council consented to the Husband demolishing the existing building and constructing a dual occupancy dwelling. The Notice records that such consent lapsed on 3 October 2018.
Paragraph 71 of such Notice of Determination records that:-
this approval does not include approval to strata subdivide the subject property. Should strata subdivision of the property be sought, a separate development application must be submitted to Council for approval prior to occupation and/or use of the building/s.
The evidence is uncontroversial that the dwelling situate on the property was demolished in approximately December 2013 with construction commencing on the existing dwelling in approximately March 2014. It further does not appear to be in dispute that issues arose with respect to the construction of the existing dwelling. An occupancy certificate with respect to the replacement dwelling has not been issued by the local authority. Despite this, the property has been occupied and rented out from approximately 2015.
The parties are in dispute as to what is required to achieve the issue of an occupation certificate for the property. The Court is unable to determine that controversy in the current truncated interim proceeding.
The parties are in dispute as to whether it was ever agreed between them that an additional developmental application would be made or sought to subdivide the property. The Court is unable to determine that controversy in the current truncated interim proceeding.
The parties are in dispute as to whether the property is capable of subdivision or as to whether such an application is likely to be successful. The Court is unable to determine that controversy in the current truncated interim proceeding.
INJUNCTIONS PURSUANT TO SECTION 114
At the commencement of the hearing the Wife was requested to identify the source of power within the Family Law Act 1975 to ground the relief sought by her. The Wife submitted that the head of power sourcing her relief could either be section 114(1) or 114(3). The Wife did not identify one source of power but appeared to rely on each in the alternative.
Each source of power identifies differing criteria and considerations to be weighed when exercising discretion.
Under section 114(1) of the Act the Court may make an order that “it considers proper”. In Farr and Farr (1976) FLC 90-133 at 75,636 the word “proper” in this context was interpreted to mean “reasonable and just in all the circumstances” to warrant the making of the injunction.
Pursuant to section 114(3) of the Act the Court has the power to grant an injunction “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”.
The Wife seeks that the Court exercise a discretion to interfere with and affect the legal rights of the Husband in the property. The Court ought not exercise such a power lightly: see Sieling & Sieling (1979) FLC 90-627 at 78, 264.
THE WIFE’S EVIDENCE
The Wife bears the evidentiary onus of establishing the necessary preconditions to generate the exercise of discretion by the Court for the relief sought by her in these interim proceedings. The Wife also bears the onus grounded from that evidence to generate the exercise of discretion. It is the Wife’s evidence in support of the relief sought by her that:-
(d)in 2013 the parties decided to develop the property and to this end at this time she completed a Subdivision Certificate Application and provided the document to the Husband to sign. The date on such Application Form was left blank by agreement between the parties, to be dated when it was lodged by the Wife with Council;
(e)both the duplexes are currently being rented without an occupation certificate;
(f)the Wife disputes the Husband’s evidence that there will be significant costs in obtaining compliance certification from Council;
(g)there is no corroborative evidence grounding the Husband’s assertion that the costs of rectification of works to the property to ensure compliance with Council would cost no less than $80,000.00;
(h)it is the Wife’s opinion that the costs of subdivision would be approximately $10,000.00;
(i)the Husband has no corroborative evidence grounding his assertion that the costs of subdivision will be greater than the $10,000.00 asserted by the Wife;
(j)the Husband is attempting to thwart the Wife’s attempts to subdivide the property so that a proper value can be obtained.
Counsel for the Wife conceded during the course of submissions that there is no evidence before the Court as to what the costs would be to subdivide the property.
Counsel for the Wife further conceded during the course of submissions that there is no evidence before the Court as to:-
(a)the value of the property now; and
(b)the value of the property were it to be subdivided.
Counsel submitted that this evidence is not before the Court as firstly, it would be difficult to obtain and secondly, it is the Husband that should have placed this evidence before the Court. I do not accept that submission. It is the Wife that seeks the Court to exercise a discretionary power. The Wife bears the evidentiary burden. The oral submission made by the Wife that
All we are asking the Court to do is what the parties agreed to years ago – let’s get on with it.
does not discharge this burden.
THE HUSBAND’S EVIDENCE
The Husband completely resists the relief sought by the Wife.
The Husband clearly puts in issue that there was ever an agreement between the parties that the property be subdivided. The Husband asserts that the Development Application submitted to Council and dated 20 October 2020 contains a signature of the Husband that has been forged by the Wife. This will be the subject of a finding of fact to be made at the final trial in the matter.
CASE LAW
The Wife relied upon two prior decisions of the Family Court (as it was then known) to support her application being Massalski and Riley [2016] FamCA 144 and Perot and Perot [2012] FamCA 958. It was submitted that these two cases were the exact same factual matrix as these proceedings. I do not agree with this submission.
Final property Orders had been made in the matter of Perot and Perot [2012] FamCA 958 and the Wife sought that she be appointed trustee by way of enforcement of such orders. It appeared from the evidence that the Husband had been unilaterally attempting to subdivide the property without the Wife’s knowledge. In those circumstances the Wife was appointed trustee by the Court. Orders were made requiring the Wife to investigate whether a subdivision of the property could be obtained within a 3 month period failing which the property was to be sold so as to enable the Wife to obtain the benefit of the prior final property orders.
I further agree with the submission of Counsel for the Father that the matter of Massalski & Riley [2016] FamCA 144 can be distinguished from the present matter as it was common ground in that matter that the subject property was to be subdivided. In contrast to this matter, both parties had an interest in the property on title.
The case law relied upon by the Wife thus did not support the relief sought by her.
DISCUSSION
The Wife’s evidence as contained within her Affidavit comprised lay opinions, speculation and beliefs.
The parties are in dispute as to:-
(a)the steps and work that will be required to obtain an occupation certificate;
(b)the costs that such steps and work will incur;
(c)whether the property is capable of being subdivided; and if so; the process of obtaining such approval;
(d)the costs of obtaining subdivision approval;
(e)the time frame such a process would involve;
(f)whether there would be any increase in value in the property subsequent to a successful completion of a subdivision; and
(g)whether the parties ever agreed that such subdivision occur.
I accept the submissions of Counsel for the Husband that there is simply no material evidence before the Court as to whether a subdivision of the property could be achieved, the cost of such subdivision if it were approved, and the net value to the parties of such subdivision taking place.
Further, as submitted by the Husband, there is no evidence filed by the Wife as to how any (unknown) costs associated with obtaining sub-division approval are to be met. It is the Husband’s assertion that he cannot meet the costs of any improvements or changes to the property other than necessary maintenance he is required to undertake as a landlord.
No submissions were made by the Wife as to why it would be proper to make the mandatory injunctions as sought. Nor was the Court’s attention drawn to why it would be just and convenient to exercise such a discretionary power on an interlocutory application. I am not satisfied on the evidence that a discretion should be exercised as sought by the Wife at this time. This does not prevent the parties providing instructions to an appropriate Court Expert to consider evidence as to the potential value of the property dependent on differing assumptions of fact and seeking to adduce this evidence to support the orders sought on a final basis.
CONCLUSION
As I am not satisfied there is an evidentiary foundation to ground the relief sought by the Wife either pursuant to section 114(1) or section 114(3), the Wife’s application must fail.
I make Orders accordingly and will invite submissions as to costs at the next listing of the matter.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 4 November 2021
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