Priddle and Priddle
[2009] FMCAfam 258
•25 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRIDDLE & PRIDDLE | [2009] FMCAfam 258 |
| FAMILY LAW – Property – interim proceedings – application for sole use of former matrimonial home – application for spousal maintenance – means and needs of parties – hardship to children – realities of family life – what is reasonable and proper. |
| Family Law Act 1975, ss.72, 74, 75(2), 114 |
| O’Dea & O’Dea (1980) FLC 90-896 Scholte & Scholte (2002) FamCA 59 Davis v Davis (1976) FLC 90-062 Bassett v Bassett (1975) 1 AER 513 Price (unreported) Family Court (Lindenmeyer J) delivered 12 July 1982 Sieling v Sieling (1979) FLC 90-627 MG & JGG [2004] FMCAfam 300 Bevan & Bevan (1995) FLC 92-600 Redman v Redman (1987) FLC 91-805 |
| Applicant: | MS PRIDDLE |
| Respondent: | MR PRIDDLE |
| File Number: | ADC 312 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 19 March 2009 |
| Date of Last Submission: | 19 March 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 25 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pyke QC |
| Solicitors for the Applicant: | Norman Waterhouse Lawyers |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Camatta Lampens Pty Ltd |
UNTIL FURTHER OR OTHER ORDER
The wife have the sole use and the occupancy of the former matrimonial home being the property known as and situate at Property W in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
To give effect to order one hereof the husband vacate the former matrimonial home by 9:00am on 1 April 2009.
The husband pay all mortgage repayments in respect of the mortgage secured against the former matrimonial home together with all rates, taxes and other outgoings in respect of the aforesaid property, including electricity, telephone, gas, water and insurance, as they fall due.
The wife have the sole use of the Lexus motor vehicle currently in her possession and the husband continue to make all lease payments in respect of the aforesaid vehicle and ensure that it is registered and insured at all times.
The husband pay to the wife the sum of spousal maintenance in the sum of five hundred dollars ($500.00) per week to be paid into a bank account to be nominated by the wife on each Thursday commencing 26 March 2009.
The husband make all payments necessary to maintain the wife’s current level of health insurance cover with SGIC.
IT IS FURTHER ORDERED:
Within twenty-eight (28) days of the date of these orders the second respondents file and serve a response and affidavit in support in respect of the wife’s application filed 29 January 2009.
Pursuant to section 26 of the Federal Magistrates Act 1999 the parties and their legal representatives attend a conciliation conference on 15 June 2009 at 9:15am with a Registrar of the Court.
Fourteen (14) days prior to the date fixed for the conciliation conference pursuant to order 7 hereof the parties exchange informal discovery and produce to the other copies of the documents specified in Rule 24.04 of the Federal Magistrate’s Court Rules together with all relevant documents which relate to the financial circumstances of
[Mr & Ms Priddle] Nominees Pty Ltd and [C] Pty Ltd.
The proceedings be listed for further directions and if necessary to allocate a date for final hearing on 13 July 2009 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Priddle & Priddle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 312 of 2009
| MS PRIDDLE |
Applicant
And
| MR PRIDDLE |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Priddle “the wife” and Mr Priddle “the husband” were married in 1985. At the time, Ms Priddle was eighteen years of age and Mr Priddle was twenty-six.
They are the parents of [X], who is now sixteen and [Y], who is now fourteen. In 1996, the parties began to build a house at Property W. It was completed in 2000. Since that time, it has been the family home for Mr Priddle, Ms Priddle, [X] and [Y].
Mr and Ms Priddle separated on 7 December 2008. Since that time, apart from a few fairly short periods, they have been living separated, under the same roof, of the Property W property, which is a large and comfortable suburban home with four bedrooms and three bathrooms.
On 29 January 2009, the wife commenced final proceedings in this court relating to the settlement of matrimonial property. In both financial and emotional terms, the Property W property is the parties’ most significant asset. In the long term, both parties would like to retain it.
The husband is a self-employed [occupation omitted]. He operates a [business omitted]. Until recently, the business was operated in such a way that its income, after accounting processes, was nominally divided equally between the parties, in part to minimise liability for tax.
The wife, during the parties’ marriage, was engaged in doing the accounting and other administrative tasks for the business. The husband asked her to cease her involvement with the business in mid-January of 2009.
It is the wife’s position that the business is profitable and produces a comfortable income, which has supported the family, more than adequately, up until this time. She does not accept that the parties’ personal income tax returns necessarily accurately indicate the level of income produced by the business.
The wife has been ill since shortly after the parties moved into the Property W property. She suffers from scleroderma, a chronic and degenerative condition affecting the body’s connective tissues. It is characterised by a thickening and hardening of the skin and subcutaneous tissue.
The circumstances of the parties’ separation were difficult and necessarily have precipitated powerful emotions in each of the parties concerned. It seems highly unlikely that either [X] or [Y] have been immune to these emotions. Undoubtedly both children have been affected by the change in their parents’ relationship and the new psychological topography, which has been inaugurated with their parents’ separation under the one roof, which the two children share.
These proceedings relate to arrangements for the wife’s financial support, until the parties’ respective applications, regarding division of their marital property and other ancillary matters, can be finally determined by the court. More importantly, they also relate to an application brought by the wife, who seeks the right to exclude the husband from the parties’ jointly owned home in Property W and occupy it solely with the children, pending trial. The husband objects to being ejected from the premises, which he owns jointly with the wife and regards as his home.
The husband concedes that the wife’s condition renders her unfit to seek paid employment, in the conventional workforce, and accordingly he accepts that Ms Priddle is unable to provide for her own financial support. In this area, the major area of dispute between the parties is the level of financial support which the husband should provide to the wife from the business.
The wife’s position is that a sum of around $700.00 per week would be reasonable, given her current level of expenditure and amounts which the husband has provided to her in the past. In addition, she seeks that the husband maintain her and the children’s current level of health insurance cover and provide her with the use of a motor vehicle, which was leased on her behalf, through the business, prior to the parties’ separation.
The husband proposes payment of a lesser sum, which he would wish the court to fix at $500.00 per week. Essentially, it is his position that the business will not sustain the payment of any larger sum, particularly given his own personal level of expenditure and the need of the business for an ample level of cash flow. In all these circumstances, he contends that it would not be reasonable, for the court, to make an order for a greater sum than $500.00 per week.
However, to his credit, the husband concedes that it is appropriate that he maintain the wife’s current level of private health insurance and ensure that the business continues to provide her with the use of the leased Lexus motor vehicle, although he would seek to confine the wife’s use of the car to a period of three months.
The major controversy, between the parties, at this stage, concerns who of them should have the right to occupy the Property W property. It is the wife’s case that the current circumstances render it emotionally untenable for her, [X] and [Y] to occupy the same premises as the husband. Given her state of health and access to financial resources – she is wholly dependant upon the husband – it is her case that it is impossible for her to move out of the property and find alternative accommodation for herself and the children.
The husband concedes that it is difficult, at times, for the parties to both occupy the Property W. But it is a large home and, on his case, it is feasible for both he and Ms Priddle to lead separate lives within it and so maintain their current respective levels of involvement with [X] and [Y].
To paraphrase his barrister, Mr McGinn, the husband characterises the parties’ current circumstances as the “usual level of unhappiness”, which invariably follows marital breakdown and, as such, is insufficient to justify the husband’s exclusion from the property.
Essentially, it is the husband’s case that, although it may be uncomfortable for the parties to live in the same property, both can continue to function satisfactorily under such an arrangement, which will only be in place temporarily, until the resolution of the substantive property proceedings.
It is also the husband’s case that, at this stage, he does not have an obvious alternative source of accommodation and it would be unreasonable to expect a person of his age to seek to live with his elderly parents or expect him to move in with his girlfriend, when his relationship with her is in its early stages.
The wife’s position is that the husband has demonstrated, in the period since the parties separated, he is incapable of behaving in a proper manner, which might possibly justify the parties’ continued joint occupation of the Property W property.
She characterises the husband as being, at worst, domineering and controlling of her or, at best, incapable of exercising a proper level of emotional restraint, whilst he adjusts to the difficult circumstances of the parties’ separation. To paraphrase the words of her barrister,
Ms Pyke, the wife asserts that currently “the circumstances of this family are catastrophic”.
I had the opportunity to observe the wife directly in court. She is a thin and frail person, who is obviously ill. She walks with difficulty. Her mouth is contracted and her jaw is fixed by her thickened skin. Her hands are stiff and deformed.
It is the wife’s case that she is accustomed to living at the Property W property, which is suitable to accommodate her significant level of disability. It is also her case that she does not have the emotional resilience to withstand stressful circumstances, which is likely to be more endurable by an able bodied person such as the husband.
In these circumstances, she asserts that it would be oppressive to expect her to move which, if the husband remains in the home, would be her only solution to what is otherwise an intolerable situation for her.
The proceedings before me are interim in nature. They will not determine the final disposition of the parties’ property, particularly whether one or other of them will retain the Property W property or whether it must be sold and the proceeds divided equitably between the parties. This final hearing, if required, will most likely occur in the latter part of 2009 or perhaps, in 2010.
Notwithstanding this state of affairs, the proceedings before me were rigorously contested. The parties each remain emotionally raw as a result of their current circumstances. As such, each is likely to experience significant difficulty in making unpalatable decisions, which both may ultimately have to make, particularly whether it is financially viable for either of them to retain the Property W property.
In all these circumstances, I am concerned at the potential for these proceedings to consume a significant component of the parties’ readily available financial resources. It is my apprehension, possibly mistaken, that the vehemence of the proceedings before me, particularly from the husband’s point of view, was emblematic of the high level of emotional stress, under which he has laboured, since the parties fairly recently separated.
It is unfortunate that the court is called upon to resolve this difficult and emotionally charged issue so soon after the parties’ separation and before each of them has a reasonable opportunity to adjust gradually to their new circumstances. However, given the urgency of the situation, particularly from the wife’s perspective, it was incumbent upon the court to deal with her application expeditiously.
The English and Australian common law traditions have long respected the sanctity of proprietorial interests. As such, it is a very serious matter to turn a husband or wife out of their home. It is not to be done lightly.[1] Accordingly, it was appropriate that a full hearing, involving the taking of evidence and cross-examination, be undertaken in respect of the sole occupancy issue.
[1] See O’Dea & O’Dea (1980) FLC 90-896 at 75,648 per Murray J
The legal principles applicable
The basis of the wife’s occupation for sole occupancy of the former matrimonial home lies in section 114(1) of the Family Law Act 1975. The relevant portion of this section reads as follows:
“114(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 –
…
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;”
The court has authority to make such orders in proceedings which relate to a matrimonial cause. Proceedings relating to the division of matrimonial property and spousal maintenance are such matrimonial causes. Accordingly, in the present case, the court has authority to grant an injunction restraining the husband from entering the Property W property, notwithstanding he is one of the proprietors of it at law.
The Full Court of the Family Court has described the criteria to be applied to a sole occupancy application as “surprisingly vague”.[2] The seminal case regarding the use of section 114, in sole occupation applications, is Davis. In that case, it was said that the matters to which the court should have regard, in its deliberations, as to whether it was “proper” to make a sole occupation included the following:
·The means and needs of the parties;
·The needs of any children concerned;
·Hardship to either party, including any relevant children;
·If relevant, conduct which justifies one party being expelled from the former matrimonial home. [3]
[2] See Scholte & Scholte (2002) FamCA 59 at paragraph 32
[3] See Davis v Davis (1976) FLC 90-062 at 75,309
More recent cases have focussed on issues related to strict practicality, within the context of “the realities of family life”. The question which it has been said the court should pose for itself being: “is [it] really sensible to expect a wife … to endure the pressures which the continued presence of the other spouse will place upon them.”[4]
[4] See Bassett v Bassett (1975) 1 AER 513 at 520 approved in Page v Page (1981) FLC 91-025
Inconvenience to the parties concerned is not sufficient to justify a sole occupancy order. The court has been directed to be alive to the risk that a spouse may use a sole occupancy injunction as a tactical weapon in any ongoing matrimonial conflict with the other spouse concerned.
Accordingly, caution is required in assessing whether such an order should be made, particularly as, at the interim stage, it is likely to be difficult for the court to predict who of the parties ultimately is likely to retain control of the property concerned, as issues to do with contribution have not as yet been determined.
In Price Lindenmeyer J indicated there had been a “softening of the court’s attitude” towards exclusive occupation orders. There was now no onus on an applicant for such an order to demonstrate irrational, intolerable or awful behaviour on the part of the party whom it was sought to exclude. Rather: “the court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”[5]
[5] See Price (unreported) 12 July 1982 approved in Scholte (supra) at paragraph 35
As the power to grant an injunction is a discretionary one, it must not be exercised lightly, particularly if any interference with a spouses proprietorial interests is envisaged. As such, the court should not proceed on “vague or uncertain claim[s]”.[6]
[6] See Sieling v Sieling (1979) FLC 90-627 at 78,264
In my view, these authorities demonstrate that the court must move cautiously in determining whether to exclude a spouse from a jointly held property, pending resolution of competing claims in respect of that property.
The court must examine the entire circumstances of the parties concerned and determine, whether on the facts of the particular case, such an order is justified. Essentially, the court must determine whether any order is proper and ensure that individualised justice is delivered.[7]
[7] See MG & JGG [2004] FMCAfam 300 at paragraph 18
Pursuant to s.74 of the Family Law Act 1975, the court may make such order as it considers “proper” for the provision of maintenance to the wife in accordance with the provisions of Part VIII of the Act. In particular, s.72 deals with the right of a spouse to maintenance and reads as follows:
“S.72(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
Given the factual basis of this case, the relevant matters referred to in sub-s.75(2) are likely to be the following:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the marriage has not attained the age of eighteen years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself;
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
l)the need to protect a party who wishes to continue that parties role as a parent.
The Full Court of the Family Court in Bevan & Bevan[8] determined that the approach to be taken in respect of applications for spousal maintenance involved a four step process as follows:
a)a threshold finding under s.72;
b)consideration of s.74 and s.75(2);
c)no fettering principle that a pre-separation standard of living must automatically be awarded where the respondent’s means permit;
d)discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” as the guiding principle.
[8] Bevan & Bevan (1995) FLC 92-600 at 81,981-2
In Redman v Redman[9] the Full Court of the Family Court considered the procedural and evidentiary requirements which attach to interim spousal maintenance proceedings. The Full Court said as follows:
“…the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under section 83. …the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. …Another consequence is that on an application for interim maintenance the court conducts not as final or exhaustive a hearing as would be the case if one were hearing the matter finally. …The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of section 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under section 83.”
[9] Redman v Redman (1987) FLC 91-805 at 76,081
These proceedings are directed to resolving these issues between the parties pending the trial of their competing property applications either later this year or next year. In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of the witnesses concerned and my consideration of any relevant documents.
The evidence
The wife relied on the following documents:
i)Two affidavits of herself filed on 29 January 2009 and 6 March 2009 respectively;
ii)A statement of her financial circumstances filed on 29 January 2009;
iii)An affidavit of her solicitor, Ms Hastwell filed on 4 March 2009, to which was attached a medical report of her general practitioner, Dr T.
The husband relied on the following documents:
i)Two affidavits of himself filed on 4 March 2009 and 16 March 2009 respectively;
ii)A statement of his financial circumstances filed on 4 March 2009.
One of the significant evidentiary issues in this case concerns the parties’ conduct in respect of accounts relating to the operation of the family business, [C] Pty Ltd and a line of credit secured against the Property W property.
As a result, some recent bank statements, which relate to these accounts and a personal account recently opened by the husband, in his sole name, were tendered into evidence. I was also provided with the husband’s most recent personal income tax return, which on his case is demonstrative of the true level of income which the business produces.
Finally, I was provided with a transcript of a text message, which the husband acknowledges he sent to [X] and [Y] on the evening of 8 March 2009. From the wife’s point of view, the message is evidence of the husband’s lack of insight into the stressful situation his ongoing presence in the former family home creates for all concerned.
From the husband’s point of view, the text message was perhaps misconceived but accurately represented his feelings of hurt and rejection as a consequence of the children’s insensitive behaviour towards him, which in part he believes was encouraged by the wife and her sister.
Both parties were represented by skilled and well prepared counsel. As a result, each of the parties was vigorously and extensively cross-examined by counsel for the other party. As a consequence, I had the opportunity to observe both the husband and wife at close hand and see each of them placed under a significant level of pressure. Regrettably, to some extent, it is necessary for me to make some findings regarding the credibility and reliability of each of the parties concerned.
It is, I think, becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen in a marital context, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and very often professionally prepared affidavits.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. The same tendency very often occurs in regards to the parties’ respective assessments of their overall individual contributions made during their marriage.
In addition, where there are significant differences in the temperaments of the parties concerned, it is a common phenomenon that former spouses can hold diametrically opposing views about what occurred in regards to a particular incident, yet both genuinely believe their respective recollection to be the correct one. The extreme emotions created by proceedings, such as these, blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved, so that this adjudication can occur.
At the present time, there is no love lost between the parties. Each feels the other is manoeuvring against him or her to gain some form of permanent financial advantage. The wife feels aggrieved that she has been dismissed from the business and, from her perception, the husband has made only limited and begrudging arrangements for her financial security.
In these circumstances, it is her perception that she had no alternative but to withdraw the sum of $14,900.00 from the line of credit account, on 5 February 2009, to cover her future living expenses, particularly her medical expenses, as she was due to travel to Sydney to see if she was suitable to take part in a course of experimental treatment in respect of her scleroderma.
The husband was aggrieved at this withdrawal. In mid-February of 2009, he opened an account, in his own name, at the ANZ Bank. He withdrew two sums of $40,000.00 from the business cheque account and line of credit account respectively, which were placed into this account. Subsequently, a sum of $34,000.00 made its way back into the business account but $43,000.00 remained in this account on the day the hearing.
The husband’s position is that he was reacting to the wife’s cash withdrawals, which he regards as precipitate and provocative. It is his ostensible position that he needed to quarantine some cash to preserve the liquidity of the business. Needless to say, currently both parties view the other with a high degree of suspicion and antipathy.
For obvious reasons, the withdrawal of $80,000.00 was a significant matter, so far as the wife was concerned. The sum represents a significant proportion of the parties’ current worth. The husband did not disclose to the wife the fact that he had opened a bank account in his own name or advised her of the existence of these significant withdrawals. Her suspicions were heightened by the fact the husband had excluded her from the business and had curtailed her entitlement to access credit card facilities, for which he was legally responsible.
The existence of the husband’s personal bank account came to the wife’s attention shortly prior to the hearing scheduled for 19 March 2009. It was not disclosed in his statement of financial circumstances. To his credit, the husband produced the relevant bank statements.
However, the husband’s evidence that he had “forgotten” about the accounts and withdrawals in question was singularly unconvincing. The sum of money concerned was large. The withdrawals occurred in the turbulent circumstances following the parties’ separation. The existence of a bank account containing a large sum of recently withdrawn money is not something one easily forgets.
I have not reached the conclusion that Mr Priddle is a dishonest person per se. Rather, I prefer to reach the conclusion that the current level of emotional distress, under which he finds himself labouring, has temporarily, I hope, discombobulated him. As such, I believe I must approach his evidence, thus far, with some caution, particularly as I consider that his level of insight into how the family is currently faring, himself included, is likely to be significantly impaired.
The hearing of 19 March 2009 occurred against a background of haste and urgency. As a result, both parties’ affidavit material was hurriedly prepared. The main focus of the hearing was on the sole occupancy application. As a result of these factors, there was no opportunity to conduct a detailed examination of the financial circumstances of the business currently being operated by the husband. Certainly, from the wife’s perspective, there was insufficient time to conduct a detailed audit of it.
For similar reasons to those already outlined, I believe I must attach some caution to the husband’s evidence regarding his current level of financial viability. I am concerned that he has a vested interest in making his financial circumstances appear as strained as possible at this stage.
During the course of their marriage, I am satisfied that both parties worked very hard and contributed to the marriage to the full extent of their respective capacities, albeit in different ways from time to time. As a result of their endeavours, the parties have been able to acquire their former family home, together with a number of investment properties, albeit those investment properties are negatively geared.
In addition, it seems to be the case that the family concerned has enjoyed a comfortable middle class existence up until this stage. [X] and [Y] attend private schools. In the past, the wife has been able to travel overseas to pursue alternative medical therapies. The husband, perhaps with some sense of grievance, has deposed that considerable sums have been outlaid in the past to provide for the wife’s medical treatment.
In my view, at this stage, these “lifestyle” factors are likely to be more indicative of the family’s level of income than the husband’s statements in this regard. In this respect, I bear in mind what was said in Redman that hearings such as this one involve the potential payment of maintenance for a limited period of time and accordingly do not necessarily entail an exhaustive hearing of evidence, as any order for spousal maintenance can be subsequently reviewed at final hearing.
The parties were married for a period well in excess of twenty years. They are both currently involved, to one degree or another, with other people. The husband has a friend, Ms M, whom he describes as his “girlfriend”. The wife consults a person, Mr T, who advises her about her diet and who has visited her at the Property W home on at least one occasion. To Mr Priddle, he described himself as being the wife’s “soul friend”.
It is not my function to examine the parties’ respective personal lives and find fault there. However, I think I would be naïve to consider anything other than that their new emotional circumstances are relevant to their present applications, particularly the viability or otherwise of them both continuing to occupy the same dwelling. Their separation is recent and the issues raised by it remain raw for them both.
The wife is a sensitive and emotional person. However, I did not consider her preternaturally so. Overall, I found her evidence to be reasonable and considered. She seemed to me to be a truthful witness. Certainly, I was unable to decipher any ulterior motive, on her part, for the conduct which she has followed since the parties’ separation.
Essentially, I accept her evidence that she is deeply concerned about her financial and personal security and finds it very difficult, if not intolerable, to remain living in the same premises with the husband. There can be no question of her having exaggerated her current medical difficulties. As such, I accept that it is very difficult for her to contemplate moving from the Property W property.
a) The wife’s health
The wife has suffered from scleroderma since 2000. Her condition has steadily deteriorated in the period since. The cause of the disease is unknown and it is incurable.
Due to the hardening of the skin throughout her body, she now has no padding on her feet and accordingly finds it difficult to walk. The condition has also caused her hands to stiffen. She suffers ongoing pain.
The wife has not had a great deal of time to gather evidence, from the various medical practitioners whom she consults, for these proceedings. Currently, she sees a dermatologist, a rheumatologist, a podiatrist and a dentist, in respect of the various physical difficulties which arise as a result of her condition.
As a consequence, the only medical report available to me is from a general medical practitioner, Dr T. He describes the wife’s condition as follows:
“Ms Priddle presents now with wasted habitus, stooped and faltering gait, thin bird like facies and talks with great difficulty through a contracted mouth with very little jaw movement. She is distressed and teary and speaks softly. …
Ms Priddle can only eat small portions of vitamised foods and hence has had profound weight loss. She is constantly in pain from her tight joints and contracted skin. She is short of breath with even mild exertion because of her diffuse lung fibrosis. … Her feet are very painful and her deformed hands ache. She can’t lift pots or hold handles. She cannot use her hands for gripping. She has no normal grasping function. …”[10]
[10] See medical report of Dr T attached to affidavit of Ms Hastwell filed 4 March 2009
Dr T reports that the wife has no work capacity and confirms that her condition cannot be cured or effectively treated. When Ms Priddle last consulted him, Dr T described the wife as being “distressed and on the verge of tears”.
Dr T’s descriptions of Ms Priddle conformed with my own observations of her in the witness box. To adopt the expression of her counsel, Ms Pyke – “one would not have to be an Einstein” to reach the conclusion that there is a likely correlation between the wife’s level of emotional stress and how she copes with the great vicissitudes of her physical condition.
Although I have not been provided with any psychological or psychiatric evaluation of the wife, I accept that this is so. The wife is a vulnerable person for many reasons. Her condition deprives her of a significant degree of emotional resilience.
In Dr T’s report is reference to the fact that the Property W property has a number of features which are useful to accommodating the wife’s condition. These include the absence of steps within the property; underfloor heating; lever taps; special door handles; and a stove with large controls. The husband is critical of any suggestion that these features were incorporated into the home as a response to the wife’s illness. It being his case that they pre-dated her diagnosis.
I accept that this is so. However, the fact remains that Ms Priddle is used to living in the Property W property and, for whatever reason, its design suits her current level of disability. In particular, given her restricted level of mobility, the fact that the property has no steps or stairs makes it especially suited to her needs.
It is the wife’s case that, notwithstanding her physical limitations, she has been the parent more responsible for tending to the needs of both [X] and [Y]. As such, it is her case that she is more emotionally in tune with the children, who are likely to prefer to live with her in future.
Neither party has sought any specific orders in respect of future care arrangements for the children. However, on balance, it seems likely that [X] and [Y] would prefer to keep living in the Property W property, which has been their home for many years. It also seems to be incontrovertible that the children have a close and loving relationship with their mother, who has been a “stay at home parent”. The Property W property is convenient to the schools currently attended by the children.
b)The wife’s financial needs
As I understand matters, the [omitted] business is operated by a company in which the wife holds a share. However, it is clear to me that the husband is in total control of the business and so the income which it earns. Although the wife has been involved in the administration of the business, it also seems to me to be more likely than not that the husband is more aware than she as to how the business is faring financially.
Because of her nominal involvement with the business, the wife is not entitled to receive any social security payments. Accordingly, it is my assessment that she is totally dependent, for her financial support, upon the husband. Given the extent of her physical disability, there can be n no realistic question of her joining the paid workforce in any capacity whatsoever.
The wife estimates her current financial needs as being an amount of $895.00 per week.[11] This sum includes various amounts which are attributable to the children, specifically their food, clothing, activities and other needs.
[11] See Part N of her financial statement
The wife’s major expense, each week, is $350.00 being for food for herself and the children. Her other major expense is $150.00 per week, which relates to her ongoing medical expenses, which are not covered by health insurance.
The wife’s expenses do not seem to me to be unreasonable ones or to be artificially inflated. Up to this stage, the wife has not made an administrative application for child support. It seems unlikely that she will do so in the short to medium term. I am aware of the risk of potential “double dipping” by not taking into account a future child support assessment but do not think that this is a realistic concern at this juncture.
c) The husband’s financial circumstances
There is no dispute between the parties that Mr Priddle enjoys good health and is able to operate the business efficiently and that this business has been the sole source of the family’s income over many years. What is controversial, between the parties, is what is the business’ actual level of income, particularly what level of payment to Ms Priddle it can sustain, both in the short and medium term.
As previously indicated, prior to the inauguration of these proceedings, there has been inadequate time to allow any independent examination of the company’s receipts and liabilities. The husband’s case is that the business provides him with an average weekly income of $880.75 or around $46,000.00 per annum.
As such, it is his case that it would be unreasonable to expect him to provide the sum of $700.00 per week to the wife, which equates to a sum of $36,400.00 per annum, particularly if he is to be responsible for payment of the mortgage on the Property W property and other outgoings related to it.
The husband estimates his income from the business as being $480.00 per week. In addition, he derives rent from an investment property located at Property L of $320.00 per week. However, this property is negatively geared and the mortgage relating to it is $626.00 per week.
Mr Priddle’s personal income tax return for the financial year ending 30 June 2008 gives an income of $25,000.00 for him and one of $25,459.00 for Ms Priddle.[12] These figures roughly correlate with what income the husband asserts the business currently provides him.
[12] See exhibit W5
The husband’s major recurrent weekly expenses are comprised of the following items:
i)Tax $57.26
ii)Superannuation $162.50
iii)Interest on ANZ line of credit $320.00
iv)Mortgages $626.00
v)Rates $43.00
vi)Household insurance $36.00
vii)Health insurance $64.50
Total $1,329.26
It is difficult to see that the husband could easily rationalise any of these expenses. In addition, the husband estimates that his other expenditure, per week, amounts to $942.00.[13]
[13] See Part N of the husband’s financial statement
Accordingly, it is the husband’s case that currently his weekly expenditure exceeds his weekly income before any allowance is made for the payment of spousal maintenance. The husband was not cross-examined about his level of weekly expenditure in respect of his day to day living expenses. I suspect that some of these figures have not been subject to any great level of consideration, particularly those related to cleaning, hairdressing and telephone. However, the husband is liable to school fees, which amount to around $200.00 per week.
Although it may well be the case that the husband’s income tax return is not an accurate representation of the level of income produced by the business, it does not seem to me to be the husband is in an overwhelmingly strong financial position.
Undoubtedly, the family does carry a significant level of debt and there are many calls on the income which the business produces. In these circumstances, it is the husband’s case that he and the wife have been incrementally adding to their level of debt in the period since their separation.
The husband points to the fact that the ANZ line of credit stood at $228,329.95 shortly prior to separation and had increased to $245,295.40 in the first part of February of 2009. Currently, it stands at $312,003.91. In these circumstances, it is the husband’s position is that he is not in a provision to provide the wife in spousal maintenance in a sum of $700.00 per week without increasing the level of debt.
The wife does not agree. She is highly critical of the husband for not being frank about why the amount owing on the line of credit has blown out in recent times. In particular, that he had withdrawn $40,000.00 from it, which he had placed in an account, in his own name, on 18 February 2009.
More recently, on 5 March 2009, he withdrew the sum of $6,000.00 to pay anticipated legal costs. In these circumstances, the wife asserts her own withdrawal of $4,900.00 from the line of credit, on 6 February 2009, in respect of her anticipated future living expenses was both modest and justifiable.
The wife also acknowledges withdrawing $10,000.00 from the business account on 5 February 2009. Since these transactions occurred, the husband has taken steps to restrict the wife’s access to these accounts. He has also withdrawn the wife’s access to a credit card facility in his name. As a result, at the present time, the wife has no access to any regular income stream and is totally dependent upon the husband.
It is the wife’s case that she withdrew the sum of $10,000.00 in order to cover anticipated medical expenses, whilst she was in Sydney. She has not spent all of the sum involved and anticipates that she will be reimbursed some moneys arising from her treatment by the parties’ health insurance fund.
In the period since separation, the husband has been willing to provide the wife with a sum of $500.00 per week by way of spousal maintenance. It is his case that he cannot afford the larger sum of $700.00 without putting the business into extreme financial distress. It is his case that he withdrew moneys from the line of credit and business account to ensure a source of liquidity for the business in the medium term.
On the other hand, it is the wife’s position that the business has always operated in credit and the husband’s actions were calculated to deprive her of access to its capital and frustrate her claim for spousal maintenance. As such the court can infer that the husband is in a stronger financial position than he currently contends
For reasons already provided, I believe that it is fanciful for the husband to assert that he overlooked a bank account currently containing $43,000.00 and standing in his own name. The more likely explanation for these significant withdrawals was that the husband wished to quarantine a source of cash for himself and forestall the wife’s anticipated claim for spousal maintenance. In these circumstances, there seems to be some substance to the wife’s claim that the husband has a controlling personality and wishes to have the upper hand over her in respect of matters to do with finances.
However, notwithstanding my suspicions about the husband’s conduct, I believe I must be cautious in any assumption I make regarding the likely level of income, which the business produces. However, at the present time, the husband has access to some $43,000.00, in his previously undisclosed personal account and the business account remains $12,000.00 in credit, albeit a significant component of these funds came from the line of credit and its withdrawal has resulted in the greater indebtedness of the parties.
e) Events since separation
For obvious reasons, the parties’ respective cash withdrawals from both the line of credit and the business account have ratcheted up the level of tension and suspicion between them. The husband’s case is that he is fearful that the wife’s undisciplined financial actions will bring the business to its knees and ruin each of the parties. On the other hand, the wife perceives that the husband is intent on disempowering her financially.
Obviously, given these circumstances, there is little meaningful dialogue between the parties at the present time. What dialogue there is seems to take place via the convoluted channels constituted by the exchange of solicitors’ letters.
This is the background against which the parties’ various applications must be considered. A background which is complicated by other emotional factors, through which the loyalties of [X] and [Y] are inevitably called into question and placed under pressure. Given these various factors, I have no great difficulty in reaching the conclusion that the current atmosphere at the property in Property W is analogous to a pressure cooker.
The husband concedes as much in his evidence. He absented himself from the home between 17 February and 21 February. He conceded that he did so because the “stress” of the situation, both at work and at home, was getting to him. During this period, he stayed with Ms M.
The property at Property W is large enough to provide each of the parties with a separate bedroom and bathroom. However, there is only one kitchen and eating area. The husband concedes that he eats only “snacks” at the property. His parents provide him with lunch each day. Mr and Mrs P Senior live in premises adjoining the husband’s business. It is the wife’s case that the husband’s parents would be able to offer him comfortable and appropriate accommodation, which would be convenient to his place of work.
It seems to be the case that the husband has spent at least some brief overnight periods, with his parents, since the parties separated. He has also stayed overnight with Ms M. Neither Mr and Mrs P Senior nor Ms M have provided evidence in these proceedings.
It is the husband’s case that his parents do not wish to provide him with accommodation and he feels it demeaning to seek it from them given his age now. His parents’ attitude apparently being that he should sort things out with his wife rather than come to them. It is also his position that his relationship with Ms M is not of such a nature whereby he can essentially foist himself upon her.
I am not in a position to question either of these assertions, which do not appear to be inherently unreasonable or unlikely In addition, I have not been provided with any evidence regarding the cost of any alternative source of accommodation for the husband. However, it seems to me to be indubitably the case that the husband is better placed to move out of the Property W property than the wife is.
It is the wife’s case that an atmosphere of tension continues to permeate the Property W property. She asserts that effective communication between her and the husband has largely broken down. She asserts the husband continues to confront her in an aggressive manner. This is deleteriously impacting upon her health.
It is also her case that there have been a number of unpleasant confrontations between her and the husband, which have impacted upon the children. These factors have caused her stress levels to rise, with adverse implications for her state of health.
The husband concedes that communications are currently strained but asserts that the use of a communication book would alleviate these problems. He denies making any derogatory or provocative comments to the wife. The husband is critical of the wife for refusing to use the communication book. He asserts that she has “thrown the book on the ground five times”.
By necessary implication, it would appear to be his position that, if the wife curbed her emotions, it would be tenable for the parties to continue to occupy the former matrimonial home together, provided they kept their interaction with one another to a civilised minimum pertaining only to arrangements for the children. Essentially, it would appear to be his case that he is not the primary instigator of the current level of difficulty.
However, both parties concede that there was an unpleasant incident between the parties on 10 February 2009. This incident involved the wife’s chef, Mr T, who was visiting the wife in the early hours of the morning, when Mr Priddle returned home.
Mr Priddle made it clear to him that he did not wish Mr T to remain on the premises. It is the wife’s case that Mr Priddle over reacted and she was entitled to invite the gentleman to her home, regardless of the hour. Wherever the fault lies, it is clear that there was shouting, which the children almost certainly heard, although they were in bed at the time. It is also the case that the husband summonsed the police to the home.
It is the wife’s case that [X], in particular, was greatly distressed by this unpleasant incident. I accept that this was the case. The incident also confirms my impression that the current state of the parties’ relationship renders it volatile and liable to produce flashpoints, which both parties will have difficulty in controlling.
One of the planks, on which the husband’s case rests in respect of his opposition to the wife’s claim for sole occupancy, is that if he and the wife remain living in the Property W property, it will ensure that he is able to maintain an appropriate meaningful level of relationship with both [X] and [Y].
On the other hand, it is the wife’s position that the husband’s continued occupation of the property is causing his relationship with the children to become more and more strained. In this regard, she places reliance on both the incident of 10 February 2009 and a more recent one, which occurred on 8 March 2009.
On this latter occasion, it is the husband’s understanding that it had been agreed that [X] and [Y] would spend the afternoon and evening in question with him. This did not eventuate because the children preferred to attend a social occasion with their mother and maternal aunt. No doubt, it is Mr Priddle’s position that the wife unduly influenced the children to this end.
The husband was disappointed and upset that his plans were frustrated. He sent a somewhat waspish and sarcastic text message to each of the children. It is the wife’s case that this has done nothing to ease tensions within the home. I accept that this is so.
Further tensions have arisen as a result of [Y] breaking his wrist whilst the wife was in Sydney recently. She is aggrieved the husband did not directly inform her about the injury. Rather, after several misdirected calls, she contacted [Y] whilst he was visiting Ms M with the father.
The father characterises the injury as comparatively trivial and asserts the wife has grossly over-reacted. He has explanations for not calling the wife, which relate to a flat battery on his mobile phone. Again it is not useful to closely examine the incident to allocate fault. Rather it demonstrates the lack of facility in the parties’ relationship currently.
Conclusions
a) Sole Occupancy
The parties have been separated for around three months. I accept that this has been a period of tension and emotional difficulty for them both. Certainly, the wife did not waste much time in bringing her application for sole occupancy and raising the controversial issue with the husband.
The wife is currently in straitened circumstances. Given her state of health, she has no capacity to support herself financially. Apart from the cash sums withdrawn from the business account in February 2009, she is financially bereft.
The wife is an ill woman, who needs stable and secure accommodation, which is adapted to her physical restraints. The Property W property supplies these needs. It would be both unreasonable and unrealistic to expect the wife to supply these needs by the renting of alternative accommodation for herself.
Having considered all the various issues raised by each of the parties, I have reached the conclusion that to expect both of them to continue living in the Property W property transcends considerations of mere inconvenience. Given her state of health and level of vulnerability, it would not be sensible for the court to expect Ms Priddle to endure the pressure, which will inevitably continue, if she and the husband continue to occupy the same premises.
In my view, any proper consideration of the current reality in the Priddle household dictates that one of the spouses concerned must leave it. Given her level of infirmity and financial dependence, it cannot be the wife. In addition, given the likely current alignment of the children, it would constitute a hardship to them if the present situation is allowed to continue.
The history of the matter, since the wife filed her application, has been one of an escalation rather than a lessening of tension. There have been a number of unpleasant incidents, which have involved both [X] and [Y]. In such circumstances, I think it would be proper for the court to take appropriate steps designed to lessen this level of tension, which in my view will remain unacceptably high if the parties continue to occupy the same premises.
I concede that the house in question is a large one, which affords each of the parties a separate bedroom and bathroom. However, there is only one kitchen and eating area. Inevitably, if the parties continue to share occupation of the property, they must come into contact with one another, particularly if both wish to remain involved in the parenting of [X] and [Y].
Given the incidents between the parties in the recent past and the concessions the husband makes about staying away whenever he can, the current situation is analogous to a pressure cooker. As such, there is always the potential for it to explode, with adverse consequences for all concerned, including the children.
Both parties aspire to retain the Property W property in settlement of their competing matrimonial property claims. At this stage, I am not able to determine precisely what contributions each has made towards this property, either direct or indirect.
However, given the length of the marriage between the parties, it would seem likely that both have made significant contributions. In such circumstances, it may ultimately prove to be the case that the wife’s ongoing occupation of the property is a stop-gap measure and the property will have to be sold. However, in the short term, her need for stress free accommodation is a pressing one.
I accept that it will be grossly inconvenient for the husband to have to leave the premises. I also accept that he cannot be said to be in a strong financial position or to have an obvious alternative source of accommodation for himself. However, he does have access to funds and is not totally bereft of options, so far as his accommodation is concerned.
In all these circumstances, I have reached the conclusion that it would be proper for the court to make the injunction, which the wife seeks, in respect of the Property W property. I accept that such an outcome reflects the reality of the parties’ family situation at the present time and is a sensible outcome. I propose allowing the husband seven (7) days to vacate the property.
b) Spousal maintenance
The issues of sole occupancy and spousal maintenance are irretrievably bound up together. Having made the decision to evict the husband from the former matrimonial home, I accept there will be greater calls on his recurrent income. He will have to rehouse himself in one form or other. For obvious reasons, two households cannot live as cheaply as one. In addition, his financial position will continue to be strained by his ongoing liability to service the parties’ various loans and maintain both household and health insurance.
By reason of her ongoing infirmity, the wife is unable to support herself adequately financially. In my assessment, she is currently unable to support herself financially to any degree whatsoever. Accordingly, she has satisfied the threshold qualification for spousal maintenance provided by section 72.
In all the circumstances of this case, I reach the conclusion that it is proper for Mr Priddle to make some provision for the maintenance of the wife. To his credit, he himself concedes this state of affairs. In my view, it would be difficult for him to contend otherwise, given the applicable section 75(2) considerations which are relevant.
The wife is in a poor state of health. She has no capacity for gainful employment. She has the ongoing care and control of the two children of the marriage. Given the length of the marriage between the parties, she has an entitlement to a reasonable standard of living.
The more difficult task is to assess what the actual level of payment should be. In assessing any application for spousal maintenance, I must be guided by considerations of what is reasonable in all the circumstances of the case concerned. The obligation on the husband is to support the wife to the degree, which he is reasonably able to do so.
As such, there is no obligation upon Mr Priddle to ensure that
Ms Priddle enjoys exactly the same standard of living, which she did, prior to the parties’ separation. The cut of the parties’ metaphorical financial suit must be determined by the dimensions of their metaphorical financial cloth.
At this juncture, it is difficult to know with any precision the exact level of income which the business is producing. However, it does seem to be the case that the business has always been operated “in the black” and Mr Priddle has been a conservative business man.
The parties’ recent separation has been a financial misfortune for them both and must necessarily inaugurate a period of fiscal austerity for each of them. Putting aside the withdrawals from the various bank accounts concerned, there is evidence to indicate that they have been living beyond their means in recent times. Certainly it does not seem to be the case that the husband is anything other than an average wage earner, who has many calls on his income.
In these circumstances, I think considerations of what is reasonable must dictate that I take a conservative approach to the appropriate level of spousal maintenance to be levied. In this regard, I have come to the conclusion that the most reliable gauge for the income produced by the business is the husband’s most recent tax return. This gives a figure of around $50,000.00 per annum. At this stage, I believe it is likely to be more prudent to under estimate the husband’s level of income than to over estimate it.
The husband will continue to have responsibility for maintaining the parties’ various loans and insurance requirements. These are significant sums. From the wife’s point of view, it is essential that she continues to have access to top level health insurance and be able to drive a motor vehicle, which is modified to suit her level of disability.
For his part, the husband also needs some income for himself, particularly given that his future accommodation plans are uncertain. He has indicated his willingness to maintain the family’s health insurance and continue to serve the lease payments in respect of the wife’s Lexus motor vehicle, at least in the short term. As such, regardless of the level of spousal maintenance ultimately assessed,
Mr Priddle will be providing significant financial support for the wife.
However, at the end of the day, Ms Priddle’s financial needs are great indeed and she herself has no capacity to supply these needs. In all these circumstances, I have come to the conclusion that it would be proper to make an award for spousal maintenance, in her favour, at the rate of $500.00 per week, until the final determination of the parties’ competing matrimonial property applications.
I will make the necessary procedural orders referring the matter to a financial mediation conference and assign a further directions hearing following this conference date, at which stage a final hearing date will be allocated, if required.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 25 March 2009
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