Pinney & Pinney (No 4)
[2023] FedCFamC1F 425
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pinney & Pinney (No 4) [2023] FedCFamC1F 425
File number(s): SYC 792 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – APPLICATION IN A PROCEEDING – Where the husband seeks orders requiring the wife to vacate the former matrimonial home – Where final judgment has been delivered – Sale of the property ordered – No expert evidence to support the husband’s contention that the property’s marketability is increased if it is vacant – Where the wife and the parties’ children have moved residences on at least 10 occasions in the last 14 months – Impact of the orders on the children – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 114 Cases cited: Jyotisha & Jyotisha [2016] FamCA 738 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 23 May 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Grew Solicitor for the Respondent: Lander & Rogers 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:
23 MAY 2023
THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 20 April 2023 and amended 2 May 2023 is 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).
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:
This matter has come before me consequent to my delivery of judgment on 19 May 2023 and relevant orders that I made on that day, including listing the matter before me today for argument as to whether an additional machinery order should be made compelling the wife to vacate the premises at C Street, Suburb D (“the property”).
The background of the matter is set out in my reasons for judgment of 19 May 2023. In turn, that judgment refers to several additional applications that were made consequent to the finalisation of the substantive hearing of the matter relating to the question of the wife’s occupancy of the property consequent to conclusion of the hearing and awaiting the settlement of the sale of the property.
The judgment that I handed down on 19 May 2023 refers to the fact that the hearing was conducted on the basis that both parties were in agreement that the property was to be vacated for two primary reasons:
(1)To facilitate the completion of renovations in circumstances where it can reasonably be inferred that it was accepted that the presence of young children in the property would potentially be an impediment to the expeditious completion of the renovations and repairs; and
(2)It can reasonably be inferred that the parties accepted that the property would be more easily marketed if the property was vacated.
In terms of the facts as they developed subsequent to the conclusion of the hearing, the wife, as I have noted, moved into the property on 3 March 2023 in the circumstances that I have set out in my judgment of 19 May 2023.
Subsequently, I made orders requiring the wife to vacate the property in accordance with the purpose and intent of the consent orders that I made on the last day of hearing as varied on 2 March 2023.
Relevantly, however, two things have changed since the making of those orders. Firstly, I handed down my final judgment in the proceedings on 19 May 2023. Secondly of relevance and related to the first is that, in my judgment, I determined that the relationship between the parties, the history of the dispute and issues of finance were such that I found that it was not viable to defer the sale until such time as the renovations were completed.
That created a situation in which, rather than the wife being required to vacate the property, with the children, in order to facilitate the ongoing renovation works, the effect of the orders I made on 19 May 2023 was for the renovation works to cease. In other words, the orders remove one of the bases upon which it can reasonably be inferred that the parties determined the property should be vacated in the consent orders made on 3 February 2023 and varied on 2 March 2023.
In respect of the husband’s application, counsel for the wife, Mr Grew, has made three primary arguments.
Firstly, that I am functus officio as a result of the orders of 19 May 2023. That is, having made final orders my role in the matter is finalised; I have adjudicated and made orders that have resolved the controversy that existed between the parties and I have no further judicial function to discharge in that respect.
In that respect, Mr Grew has argued that the question as to occupancy of the property is a substantive rather than machinery order and therefore the issue has been determined in the orders I made.
As a related issue but, I gather, itself being of relevance on the basis of the submissions, is that I have, by virtue of orders I made on 3 May 2023, already invited the parties to make submissions on that very issue and subsequently, as I referred to in my judgment of 19 May 2023, the parties did in fact make submissions regarding the issue of the renovations and occupancy of the property.
It is however, unnecessary for me to consider that issue and those well-reasoned submissions made by counsel for the wife for reasons which I will subsequently explain.
The second argument of Mr Grew focused on the substance of the application that had been deferred for hearing today, that is, the husband’s application filed 20 April 2023 and amended on 2 May 2023, wherein he sought orders of an injunctive nature requiring the wife to vacate the premises, together with a warrant to be issued, if necessary, to remove her from the property. Mr Grew, as I understand his argument, contends that there are two sub issues to consider in this respect.
Firstly, that the issues requiring adjudication, in the husband’s application of 20 April 2023, have been subsumed within the submissions made by the parties pursuant to the orders made on 3 May 2023.
Secondly and as a related issue, the foundation for the husband’s application has been rendered redundant as a result of the fact that the first order made on 19 May 2023 was that all previous orders are hereby discharged. Relevantly, it is contended that the foundation of the husband’s application for those orders now no longer exists. In other words, his application has been rendered redundant as a result of that first order discharging all earlier orders.
Finally, it is argued by Mr Grew that there is a lack of procedural fairness, insofar as the matter before me today can be construed as considering other than the husband’s application. In those circumstances it is argued that there has been an absence of procedural fairness from the perspective of the wife knowing precisely the orders sought by the husband and the basis for them.
Again, it is unnecessary for me to consider those well-reasoned arguments by Mr Grew.
I am considering this matter as coming before me consequent to my delivery of judgment on 19 May 2023, wherein I invited the parties to make submissions today, as anticipated in the orders of 3 May 2023, in circumstances where the issues that I was addressed upon at the substantive hearing did not encompass the contemporary or up to date circumstances. In particular, the submissions at the substantive hearing did not engage the fact that I have directed the parties to take such steps, unless they agree otherwise, to cease the building works and also to immediately place the property on the market, again unless the parties agree between themselves in writing to some other alternative arrangement. In other words, I have concerns that, if left without submissions, the parties may have considered they were denied procedural fairness to present their arguments relating to that issue of occupancy of the property in the context of the contemporary or up to date facts.
It is on that basis that I am considering the husband’s application. In considering the husband’s application in that context, I nonetheless dismiss the husband’s application for the following reasons.
At [10]–[16] inclusive of my judgment on 27 March 2023, I set out what I regarded as the relevant legal principles to apply in considering whether to grant an mandatory injunction compelling a person to vacate a property that they are occupying.
In that context the husband, as the mover for orders requiring the wife to vacate the property, carries the burden of persuading the Court that such orders are, as I have indicated, proper in the context of s 114 of the Family Law Act 1975 (Cth). The reasons advanced by the father for seeking those orders are:
(1)Firstly, he contends it can reasonably be inferred from the wife’s conduct to date in reoccupying the property on 3 March 2023 that she is determined to delay the sale of the property; and
(2)Secondly, that I can infer the occupation of the property by the wife and the parties’ four children will be an impediment to the sale or, more accurately, will not maximise the prospect of the house being sold as, effectively, a new premises.
Dealing with the second of those arguments first, the difficulty I have is that while it is an opinion genuinely held by the husband, in the context of property proceedings, that opinion evidence is inadmissible and there is no expert evidence before me as to whether a property is, in fact, more marketable if it is vacant as opposed to occupied. By way of testing that submission, I raised with the husband whether there were possible countervailing factors such as, for instance, the property being presented in circumstance where those inspecting it were entering a home that was warm as a result of heaters being on before the inspection, whether there was a potential that families would be attracted by the fact that children resided there with children’s toys in the backyard and children’s memorabilia in bedrooms and also potentially comforting scents of occupancy, such as coffee percolators, that may be attractive to prospective buyers.
Again, these are matters of speculation, but in order to draw an inference I must be satisfied on the basis of admissible evidence that one inference is more probable than the other. As a result of the evidence presented, or rather, the absence of expert evidence that a property is in fact more marketable as a vacant property as opposed to one in which people reside, including with children, it is essentially a matter of speculation as to whether that is the case and ultimately it may well depend on the nature of the potential buyer as to whether one is more beneficial than the other.
Whatever view is taken in that respect, the fundamental fact is that these are all speculative propositions and, in the absence of appropriately qualified expert evidence regarding the marketability of the property in either of those scenarios, I am not in a position to determine, as a matter of probability, that the marketability of the property would be enhanced by an order requiring the wife to vacate the property.
That reasoning that I have set out is, of course, underpinned by common sense and life experience that leads me to conclude that the property would be less marketable if it was not left in a clean and tidy state by the wife at the point of relevant inspections. It can be assumed, however, that that will not be the case, having regard to Order 4(g) I made on 19 May 2023 for the wife to ensure that the property is in a neat and clean condition.
In respect to the husband’s second argument that I should reasonably infer, from the wife’s conduct, that she is intent on delaying the sale. In considering that argument, I note that there has been a substantial change in circumstances since the hearing, even if that inference was available at the time of the hearing. That is, I have made orders requiring the property to be placed on the market for sale, unless the parties otherwise agree, within six weeks of the orders or, at least, the parties agreeing upon the identity of the agent to sell the property.
Finally, in terms of drawing inferences, I note that the wife has the most to gain by the sale of the property at its highest possible market value. This is because the orders I made on 19 May 2023 substantially favour her in terms of the adjustment that she will receive, according to those orders, from the net proceeds of sale.
Having regard to those matters and the fact that there are no relevant safety issues regarding the children being present while renovations are being undertaken, it is my conclusion that, with that issue having been removed as a relevant consideration, I am not in a position to infer, as a matter of probability, that the property’s marketability will be impeded by the presence of the wife and children remaining in the property. On that basis, I do not accept that there is a proper reason for requiring the wife to vacate the property with the children.
Finally, additionally and having regard to the decision Hogan J in Jyotisha & Jyotisha [2016] FamCA 738, to which I refer at [16] of my decision of 27 March 2023, it is appropriate, in considering whether to make an order requiring a party to proceedings to vacate a property, to have regard to the interests of any children who may be impacted by the order. In this matter, a very relevant consideration is the fact that it is accepted that the children have been required to move at least 10 times, albeit the wife contends twelve times, in the 14 months prior to the hearing. Even accepting the father’s contentions, as I did in my reasons for judgment of 19 May 2023, that it was 10 times during that period, in my view, requiring the mother to relocate with the children yet another time would cause further disruption to the children in the circumstances that I have referred to in my judgment. .
Having regard to the impact on the children, as an additional consideration in addition to the considerations to which I have referred, and without considering the well-argued submissions of counsel for the wife, based on the merits of the application, I dismiss the husband’s application for order requiring the mother to vacate the property.
Accordingly, my role in these proceedings is now finalised.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 26 May 2023
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