Pinney & Pinney

Case •

[2023] FedCFamC1F 206

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pinney & Pinney [2023] FedCFamC1F 206

File number(s): SYC 792 of 2022
Judgment of: MCCLELLAND DCJ
Date of judgment: 27 March 2023
Catchwords: FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife unilaterally moved into the former matrimonial home, which currently remains under renovation, with the children – Where there is no occupancy certificate –Interim consent orders made on last day of final hearing for the husband to seek alternate rental accommodation for the wife and children and for the former matrimonial home to remain vacant until renovations are completed  – Where the husband seeks an injunction removing the wife from the former matrimonial home – Consideration of impact upon the children – Application granted.
Legislation:

Family Law Act 1975 (Cth) ss 4, 114(1)(f)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67(2)(b)
Cases cited:

Davis and Davis (1976) FLC 90-062; [1976] FamCA 38

Jyotisha & Jyotisha [2016] FamCA 738

R v Dovey; Ex parte Ross (1979) 141 CLR 526; [1979] HCA 14

S & S [2002] FamCA 59

Sieling and Sieling (1979) FLC 90-627; [1979] FamCA 23
Division: Division 1 First Instance
Number of paragraphs: 33
Date of hearing: 27 March 2023
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Broun Abrahams Burreket
The Respondent: Litigant in person

ORDERS

SYC 792 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PINNEY

Applicant
AND:

MS PINNEY

Respondent

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

27 MARCH 2023

THE COURT ORDERS THAT:

1.Within seven (7) days of the husband complying with Order 9.3 of the orders made on 3 February 2023 and confirmed in the orders made on 2 March 2023, the wife is to vacate the property situated at and known as C Street, Suburb D and is thereafter restrained from attending at the Suburb D property other than in accordance with the Orders of 2 March 2023 or with the written consent of the husband.

2.Within seven (7) days of the date of these orders, the husband is to provide the wife with the addresses of three (3) prospective rental properties that meet with the criteria specified in the Orders of 2 March 2023.

3.Within a further seven (7) days of being provided with a list of a name of those properties, the wife shall select, from that list, the property in which she wishes to reside with the children and notify the husband accordingly.

4.The husband’s obligation to comply with Order 9.3 of the orders made on 3 February 2023 shall be triggered upon the husband receiving the wife’s notification pursuant to order 3, or, in the absence of notification, the expiration of 14 days from the date of these orders.

5.The delivery of reasons and potential orders in respect to the issue of the costs of today’s hearing are reserved.

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 the pseudonym Pinney & Pinney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

  1. This matter has been listed to consider an Application in a Proceeding filed by the respondent husband (in the substantive proceedings) on 9 March 2023.

  2. It is the second time that the matter has been listed pursuant to the liberty apply provisions made on the final day of the substantive hearing on 3 February 2023, with the first such application having been made by the husband in the context of a dispute between the parties regarding the process for the husband vacating the former matrimonial home pursuant to the orders made on 3 February 2023.

  3. By way of background, the substantive proceedings involved consideration of respective applications by the parties for property adjustment, with the major property being the former matrimonial home.

  4. Both parties are in agreement that the property needs to be sold in order to facilitate a just and equitable adjustment of the parties’ property. A major issue of controversy is, however, how the property can be brought into a state of readiness to be taken to market in circumstances where repairs and renovations have been taking place for a considerable period of time and are yet to be completed.

  5. During the substantive hearing, both parties made allegations against each other about unhelpful interventions in the renovation process by the other.

  6. In that context, on the last day of the hearing, the parties agreed to the Court making the following consent orders (with additions and alterations included):

    1.Within 48 hours 21 days the Husband shall vacate the property at [C Street] [Suburb D] ("[Suburb D] property"), and thereafter be restrained from attending upon the [Suburb D] property.

    2.Within 7 days, the parties shall do all acts and things necessary to engage [Mr B] ("[Mr B]") to:

    2.1Be the sole point of contact between the parties and [G Pty Ltd] ("the builders") in relation to the [Suburb D] property renovation ("the [Suburb D] property renovation")

    2.2Liaise with and cause the builders to:

    2.2.1Complete the list of incomplete and outstanding works set out at paragraph 11.1 of his report at Annexure A;

    2.2.2Rectify the list of major and minor defects set out in paragraph 11.2 of his report at Annexure A.

    2.3Pay tax invoices rendered by the builders and contractors in relation to the [Suburb D] property renovation, when the following shall occur:

    2.3.1The Wife parties shall direct that [Mr B] first email a copy of the tax invoice requiring payment to them herself and the Husband;

    2.3.2The Wife parties shall direct their her lawyers to pay the approved invoice within 14 days of receiving the said invoice;

    2.3.3The Wife parties shall request that [Mr B] provide a copy of the receipt for payment to the Wife and the Husband.

    2.4Liaise with [Mr E], Certifier and request that he undertake an inspection of the [Suburb D] property for the purpose of obtaining a partial and/or final occupancy certificate upon the work in paragraph 2.2 eing completed and/or rectified; and

    2.5If directed by the Wife, enlivening the dispute resolution clause within the Home Building Contract between the parties and [G Pty Ltd] dated [early] 2021. including making any necessary application to NCAT and/ or the Department of Fair Trading, and instructing any lawyer in relation to such application(s) as required.

    3.        For the purpose of Order 2:

    3.1The wife parties shall provide all necessary directions and authorities to [Mr B] in writing;

    3.2The parties shall copy the Husband into all written communications with [Mr B];

    3.3The Wife shall request that [Mr B] copy the Husband into all written communications with her in relation to the [Suburb D] property renovation;

    3.4The Husband shall be restrained from communicating directly with [Mr B];

    3.5The Wife be granted leave to provide a copy of this Order and all invoices and summaries of payment in relation to the [Suburb D] property renovation produced by [G Pty Ltd] in the subpoena material to [Mr B]. NCAT and/ or the Department of Fair Trading if required.

    3.6 [Mr B] will receive payment for services rendered by him from funds held pursuant to Order 4, and for the purpose of this Order:

    3.6.1The Wife parties shall direct that [Mr B] email a copy of his tax invoice to them herself and the Husband;

    3.6.2The Wife parties shall direct their her lawyers to pay [Mr B's] tax invoices within 14 days of receiving the invoice; and

    3.6.3The Wife parties shall request that [Mr B] provide a copy of the receipt for payment to the Wife and the Husband.

    3.7Each party be restrained from communicating with [G Pty Ltd] and any contractors engaged in relation to the renovation of the [Suburb D] property and also [Mr E].

    4.By no later than close of business on 7 February 2023, the Wife instruct her solicitors to do all acts and things necessary to open a controlled monies account in her name ("controlled monies account") for the purpose of:

    4.1      Releasing funds to [Mr B] for the payment of:

    4.1.1Approved tax invoices to the builders and contractors in relation to the [Suburb D] property renovation;

    4.1.2Any application fees to Council NCAT or the Department of Fair Trading in relation to the [Suburb D] property renovation; and

    4.1.3Any necessary legal fees in relation to NCAT or Department of Fair Trading proceedings.

    4.2Tax invoices rendered by [Mr B] for his services pursuant to Order 3.6.

    5.By no later than close of business on 8 February 2023, the Wife cause her solicitors to advise the Husband's solicitors of the account details for the controlled monies account.

    6.Within 48 hours of the receipt of the notice pursuant to Order 5, the Husband do all acts and things necessary to:

    6.1Transfer the sum of $100,000 $40,000 from his CBA account […74] to the controlled monies account; and

    6.2Sell his shares in [J Bank] that vested on […] 2023 and transfer 100% of the proceeds of sale to the controlled monies account.

    7.Within 14 days, the parties, through their legal representatives, are to confer with [Mr B] and [Mr E] with a view to determining a scope of works that will enable an occupancy certificate to be obtained in respect to the property, together with such other work as is necessary to make the property presentable for sale and shall make such additional payment into the controlled monies account as may be agreed between the parties upon determination of that additional scope of work.

    8.At settlement of the sale of the [Suburb D] property, the balance of any funds held in the controlled monies account will be divided as to 70% to the Wife and 30% to the Husband.

    9.Pending settlement of the sale of the [Suburb D] property:

    9.1Pursuant to section 74 of the Family Law Act 1975 ("the Act"), the Husband shall pay to the Wife, as she may direct, the sum of $1,000 per week by way of cleared funds, directly into a bank account nominated by the Wife;

    9.2Pursuant to section 74 of the Family Law Act 1975 ("the Act"), the Husband shall pay or cause to be paid, on or before the date upon which those expenses fall due for payment (with such payments to be made directly to the issuer of such accounts or to the Wife, as the Wife may direct), the following:

    9.2.1All mortgage and other loan repayments in respect of all debts, liabilities and encumbrances secured over the [Suburb D] property;

    9.2.2All water, gas, electricity and council rates for the [Suburb D] property;

    9.2.3Home building insurance for the [Suburb D] property to its current market value at the time of effecting or renewing such insurance;

    9.2.4Contents insurance for the contents housed in the [Suburb D] property to an amount equivalent to the replacement value of same at the time of effecting or renewing such insurance;

    9.2.5Private health insurance premiums for the Wife with [K Health Fund] or such other insurer as nominated by the Wife from time to time, at no lower than the top comprehensive family cover available for private hospital and out of hospital insurance;

    9.2.6Motor vehicle insurance premiums, registration costs, and all other costs, including loan repayments and maintenance costs in relation to the motor vehicle driven by the Wife. 

    9.3      The Husband shall:

    9.3.1Make all such residential tenancy applications within 7 kms of [F School] on behalf of the Wife as she may direct, and within 48 hours of receipt by him of written notice from the Wife to do so

    9.3.2Do all acts and things necessary to enter into a lease on behalf of the Wife;

    9.3.3Pay the Wife's accommodation costs up to the sum of $1,500 2,500 per week, with such payments to be made directly to the accommodation provider, or to the Wife, as she may direct;

    9.3.4Pay in full the rental bond required for the wife to secure accommodation.

    9.4The Wife shall provide the Husband with a list of addresses within 21 days of the date of this Order for the purposes of the Husband making a residential tenancy application as provided for in Order 9.3.1.

    10.In the event a partial occupancy certificate in respect of the [Suburb D] property is issued by [Suburb H] Council and the Husband has not secured a lease for premises acceptable to the Wife pursuant to Order 8.3 at the time the partial occupancy certificate issues, the Wife shall have exclusive occupation of the [Suburb D] property pending settlement of the sale of the said property and upon her occupation of the [Suburb D] property the Husband’s obligations created pursuant to Order 8.3.3 and 8.3.4 shall be discharged.

    11.Each party have liberty to apply on 48 hours’ notice in relation to the implementation of these Orders.

  7. The orders sought by the husband as set out in his Application in a Proceeding filed on 9 March 2023 are as follows:

    1. That pursuant to the liberty to relist this matter on 48 hours’ notice (Order 11 made 3 February 2023) this application be listed before his Honour Chief Justice McClelland as soon as practicable.

    2. That within 7 days the wife vacate the property situated at and known as [C Street], [Suburb D] (the [Suburb D] property) and is thereafter restrained from attending at the [Suburb D] property.

    Costs

    3. That the Wife pay the Husband's costs of and incidental to this Application on an indemnity basis.

    4. That a Costs Order made in favour of the husband be paid from the wife's share of the sale proceeds of the [Suburb D] property prior to the disbursement of funds to the wife.

    (As per the original)

  8. In effect, the husband is seeking a mandatory injunction requiring the wife to vacate the former matrimonial home with the parties’ four children. The primary reason for the husband doing so is because he contends that the conduct of the wife in re-occupying the premises in the period subsequent to the conclusion of the substantive hearing is contrary to the intention of the parties as reflected in the consent orders. It is not in dispute that the wife moved into the property with the four children in early 2023, after the last occasion that the matter was listed before me.

  9. The power of the Court to grant an injunction relating to the use and occupancy of the former matrimonial home is found in s 114(1)(f) of the Family Law Act 1975 (Cth) (“the Act”) and 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.

  10. It has been confirmed that an injunction relating to occupancy of the former matrimonial home falls within the contemplation of s 114 of the Act: R v Dovey; Ex parte Ross (1979) 141 CLR 526 at 533. Such an order can be made if it is considered “proper” to do so: see Davis and Davis (1976) FLC 90-062 at 75,309 (emphasis added).

  11. In this case, the husband seeks an injunction in aid of enforcement of a decree or order made on 3 February 2023. The order made on 3 February 2023 is a decree as defined in s 4 of the Act as:

    decree means decree, judgment or order and includes:

    (a)  an order dismissing an application; or

    (b)  a refusal to make a decree or order.

  12. The husband contends that the clear purpose and intention of the consent orders entered into on 3 February 2023 was for the former matrimonial home to remain vacant to facilitate the relevant repairs and renovations being undertaken as expeditiously as possible, so that the property can be placed on the market at the earliest possible opportunity. 

  13. For reasons which I subsequently expand upon, I respectfully agree that the clear purpose and intent of the consent orders made on 3 February 2023 is as described by counsel for the husband.

  14. The making of a mandatory injunction requiring a party and, as a related consequence, the children of the parties, to vacate the former matrimonial home is a significant order and should be made only after careful consideration. In this matter, I have had regard to the evidence of the mother regarding the inconvenience to herself and the children as a result of having to move on ten separate occasions since the date of the parties’ separation.

  15. The fact that the Court is required to give careful consideration in making an order requiring a party to vacate the former matrimonial home has been confirmed by the Full Court in S & S [2002] FamCA 59 at [36] where, after referring to several Australian and comparable overseas authorities, the Full Court quoted, with approval, from Sieling and Sieling (1979) FLC 90-627:

    The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly.  The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.  It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.  There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

  16. Additionally, I would add that, in circumstances where jurisdiction is being exercised in a family law context, it is proper for the Court to have regard to the interests of third parties, in this case, most relevantly, the parties’ children. That point was well made by Hogan J in Jyotisha & Jyotisha [2016] FamCA 738 where, at [15], her Honour said:

    15.It is clear the Court has power to make orders as sought by the parties, provided that such order is considered proper in the circumstances of the case.  It is also clear that authority establishes that:

    …

    (d)in determining the manner in which a court will exercise its discretionary power [to make an order for one or other of the parties to have exclusive occupation of the former matrimonial home], relief should not depend merely on the balance of convenience of hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought. 

    (Citations omitted) (Emphasis added)

  1. In this matter, I cannot determine what is “proper” without first considering the respective conduct of the parties. As I have noted to the parties during the course of the proceedings and in a further listing that has occurred on 2 March 2023, this matter was initially referred to me by a registrar of the Court who was concerned that the trajectory of litigation between the parties in this matter had the potential to impact upon the efficient use of the judicial and administrative resources available for the purposes of the Court (see s 67(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). That assessment by the relevant registrar has been prophetic.

  2. Nevertheless, the concerns about the effective use of the resources of the Court does not surpass the importance of the Court ensuring that it does justice between the parties.

  3. Regrettably, the manner in which the parties have conducted this litigation can only have contributed to the financial and emotional strain that ordinarily accompanies the breakdown of a marriage. More regrettable, however, is the fact that the children, who have been indirectly impacted by the ongoing dispute between their parents, will now be directly impacted insofar as, for reasons which I set out, I am satisfied that it is proper to grant the order sought by the husband requiring the wife to vacate the former matrimonial home, along with the children.

  4. Continuing on my assessment of the parties’ conduct, I note that the husband was less than diligent in complying with the orders made on 3 February 2023, resulting in the subsequent application before the Court on 2 March 2023. Fortunately, with the assistance of their legal advisers, the parties were able to resolve that matter on the morning of the listing, with further consent orders being made on 2 March 2023. 

  5. In considering this matter I note that, at the conclusion of the hearing on 3 February 2023, counsel for the wife, no doubt on instructions from the wife’s solicitors, advised the Court that the purpose and intent of the consent orders was not to facilitate the wife resuming occupation of the former matrimonial home.

  6. In that respect, the Court has been referred to pages 245–249 of the transcript of proceedings on 3 February 2023. I also refer to page 247 of the transcript at lines 12–17, where counsel for the wife advised the Court that “it’s contrary to the wife’s own case that either party presently occupy the property.” In that respect, it was noted that the report of an expert that was tendered with the consent of the parties confirmed that, as stated by counsel for the wife “it is illegal to occupy or use a building without an occupation certificate”, with counsel for the wife stating clearly that it was the wife’s case that “neither party should occupy the property”.

  7. That intention is reflected in the orders made on 3 February 2023, which included the following consent orders:

    3.7Each party be restrained from communicating with [G Pty Ltd] and any contractors engaged in relation to the renovation of the [Suburb D] property and also [Mr E]. 

    …

    7.Within 14 days, the parties, through their legal representatives, are to confer with [Mr B] and [Mr E] with a view to determining a scope of works that will enable an occupancy certificate to be obtained in respect to the property, together with such other work as is necessary to make the property presentable for sale and shall make such additional payment into the controlled monies account as may be agreed between the parties upon determination of that additional scope of work. 7 which acknowledge that the parties were to prioritise obtaining a certificate of occupancy.

    …

    9.3      The Husband shall:

    9.3.1Make all such residential tenancy applications within 7 kms of [F School] on behalf of the Wife as she may direct, and within 48 hours of receipt by him of written notice from the Wife to do so

    9.3.2Do all acts and things necessary to enter into a lease on behalf of the Wife;

    9.3.3Pay the Wife's accommodation costs up to the sum of $1,500 2,500 per week, with such payments to be made directly to the accommodation provider, or to the Wife, as she may direct;

    9.3.4Pay in full the rental bond required for the wife to secure accommodation.

    9.4The Wife shall provide the Husband with a list of addresses within 21 days of the date of this Order for the purposes of the Husband making a residential tenancy application as provided for in Order 9.3.1.

  8. Also of significance is the fact that the consent orders show the agreement was only achieved after deletion of the following order proposed by the wife:

    10. In the event a partial occupancy certificate in respect of the [Suburb D] property is issued by [Suburb H] Council and the Husband has not secured a lease for premises acceptable to the Wife pursuant to Order 8.3 at the time the partial occupancy certificate issues, the Wife shall have exclusive occupation of the [Suburb D] property pending settlement of the sale of the said property and upon her occupation of the [Suburb D] property the Husband’s obligations created pursuant to Order 8.3.3 and 8.3.4 shall be discharged.

  9. In other words, those consent orders duly reflect the intentions of the parties that the property would be vacated, that there would be no direct interaction between the builder and the parties and that the husband would facilitate the wife and the children obtaining alternative accommodation while the building works were being undertaken.

  10. The uncomfortable reality is the fact that a mandatory injunction requiring the wife to vacate the premises will also directly impact upon the parties’ children. It will be a significant event in their lives and, unfortunately, one that they will no doubt remember for a substantial period of time. The Court is aware of the impact on the children but, nonetheless in the circumstances of this matter, feels compelled to make the orders as an aid to the enforcement of the orders made on 3 February 2023. This is in circumstances where the purpose and intent of those orders was clear to both parties and the Court.

  11. Having determined that it is appropriate for an order in the nature of a mandatory injunction requiring the wife to vacate the property, consistent with the intention of the parties in the orders of 3 February 2023, it is proper for me to consider the interests of not only the parties but also the children. 

  12. In circumstances where s 114 of the Act enables me to grant an injunction that is subject to conditions, I will grant an injunction requiring the wife to vacate the property, with the children, subject to the husband complying with Order 9.3 of the 3 February 2023 orders, to which I have earlier referred.

  13. In circumstances where the time limit for Order 9.4 of the 3 February 2023 orders has now expired, it will, however, be necessary to make an additional order as a condition that triggers the husband’s obligations under Order 9.3.

  14. In the circumstances, I will amend Order 9.4 of the orders made on 3 February 2023 such that the husband is required to provide the wife with a list of three potential addresses satisfying the criteria identified in the 3 February 2023 orders, those being within seven kilometres of the children’s school, appropriate for occupancy by the parties’ children and in the vicinity of $1500 per week.

  15. I will thereafter amend the orders sought by the husband in his Application in a Proceeding filed 9 March 2023 such that it reads:

    Within seven (7) days of the husband complying with Order 9.3 of the orders made on 3 February 2023 and confirmed in the orders made on 2 March 2023, the wife is to vacate the property situated at and known as [C Street], [Suburb D] and is thereafter restrained from attending at the [Suburb D] property other than in accordance with the Orders of 2 March 2023 or with the written consent of the husband.

  16. I appreciate this will cause some delay until the builder can have unfettered access to the property in order to complete the renovations, however, having regard to the interests of the children and the fact that the children and the wife have now moved on approximately ten previous occasions since the parties’ separation, that period of additional delay is unfortunate but necessary.

  17. I therefore make orders in accordance with those published at the commencement of these reasons for judgment and note that the delivery of reasons and potential orders in respect to the issue of the costs of today’s hearing are reserved.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       31 March 2023

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Cases Citing This Decision

1

Pinney & Pinney (No 3) [2023] FedCFamC1F 391
Cases Cited

3

Statutory Material Cited

0

R v Dovey; ex parte Ross [1979] HCA 14
S & S [2002] FamCA 59
Jyotisha & Jyotisha [2016] FamCA 738