PEVERELL & PEVERELL - [2018] FamCA 827

FAMILY COURT OF AUSTRALIA

PEVERELL & PEVERELL

[2018] FamCA 827

FAMILY LAW – EXCLUSIVE OCCUPANCY – where the wife seeks the return to the former matrimonial home from which she departed as a result of mental illness problems – where subsequent to her release from hospital, the husband arranged the lease of a property nearby which lease continues until February 2019 – where the wife submits that it is part of her medical treatment to be able to return to where she fulfilled her role over the years of the marriage as a home maker and parent – where the Court finds that the evidence does not support such a conclusion on an interim basis – wife's application to sole occupancy is dismissed.

FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – where there is no dispute that there are significant assets and the wife will receive $120,000 – where the husband seeks that the source of the payment be identified to avoid conflict – where the Court takes the view that the parties need to sort that out and otherwise it becomes an enforcement issue – order for $120,000 to be paid within 60 days.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks periodic spousal maintenance on the basis that she cannot adequately support herself on her superannuation pension but where it is conceded that there are still significant sums of money in her superannuation member account that could be either used as capital or converted to income – where the Court exercises its discretion to reject some of the claimed expenses on the basis that they are unlikely to be used on a weekly basis – where the wife has a shortfall on her superannuation pension but could easily access cash – where the wife's argument that she is not obliged to use up all of her assets and capital is rejected – where the application for spousal maintenance is dismissed.

Family Law Act 1975 (Cth)

Bing & Bing (2007) FLC 93-318

Chorn v Hopkins (2004) FLC 93-204
Davis & Davis (1976) FLC 90-062

Davis (1983) FLC 91-319
Kyriakos & Kyriakos [2013] FamCAFC 22
Mitchell and Mitchell (1995) FLC 920-601
S and S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627
Strahan & Strahan (2011) FLC 93-466

APPLICANT:

Ms Peverell

RESPONDENT:

Mr Peverell

FILE NUMBER:

MLC

7358

2018

DATE DELIVERED:

15 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Puckey

SOLICITOR FOR THE APPLICANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

Orders

The application of the wife for exclusive occupancy of the former matrimonial home is dismissed.
By way of partial property settlement, the husband pay to the wife $120,000 within 60 days.
The wife's application for spousal maintenance on a periodic basis is dismissed.
All interim applications are otherwise dismissed.
All outstanding applications for final hearing are adjourned to a date to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PEVERELL & PEVERELL [2018] FamCA 827
Case: [2018] FamCA 827
Decision Date: 15 October 2018

CaseChat Overview and Summary

In the matter of *Peverell & Peverell*, the wife sought exclusive occupancy of the former matrimonial home, a partial property settlement, and periodic spousal maintenance. The husband sought to identify the source of funds for the property settlement payment. The proceedings were before Cronin J.

The court was required to determine whether the wife should be granted exclusive occupancy of the former matrimonial home, the terms of a partial property settlement, and whether the wife was entitled to periodic spousal maintenance. The court also considered the husband's request for clarity regarding the source of funds for the property settlement.

Regarding exclusive occupancy, the court found that the evidence did not support the wife's claim that returning to the former matrimonial home was part of her medical treatment on an interim basis, and therefore dismissed her application. In relation to property settlement, the court ordered the husband to pay the wife $120,000 within 60 days, noting that the parties needed to resolve the source of these funds themselves. The wife's application for spousal maintenance was dismissed, as the court found she had significant superannuation funds that could be accessed as capital or converted to income, rejecting her argument that she was not obliged to use her assets.

The court dismissed the wife's application for exclusive occupancy and spousal maintenance. It ordered a partial property settlement of $120,000 to be paid by the husband to the wife within 60 days. All interim applications were dismissed, and outstanding applications for final hearing were adjourned for listing before a trial judge.

Orders

Orders of the court

The application of the wife for exclusive occupancy of the former matrimonial home is dismissed.

By way of partial property settlement, the husband pay to the wife $120,000 within 60 days.

The wife's application for spousal maintenance on a periodic basis is dismissed.

All interim applications are otherwise dismissed.

All outstanding applications for final hearing are adjourned to a date to be fixed for listing before a trial judge as soon as practicable and that they be placed in the list as of 9 October 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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