Riley and Massalski
[2016] FamCA 1169
•3 June 2016
FAMILY COURT OF AUSTRALIA
| RILEY & MASSALSKI | [2016] FamCA 1169 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS –Where the Wife sought a variation of previous orders made in relation to the parties’ property interests – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) Where the Court finds that the Wife’s Application is wholly unsuccessful –Application dismissed. |
FAMILY LAW – COSTS – Where the wife is ordered to pay the costs of these proceedings.
| Family Law Act 1975(Cth), s 117(2A) |
| APPLICANT: | Mr Riley |
| RESPONDENT: | Ms Massalski |
| FILE NUMBER: | SYC | 496 | of | 2015 |
| DATE DELIVERED: | 3 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 3 June 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Russell Byrnes Solicitor |
| FOR THE RESPONDENT: | In Person |
Orders
The parties are to do all things and acts and sign all documents necessary to facilitate Unit 2 of the property known and situated at F Street, Suburb G, being rented out pursuant to Order 12 of the Orders made on 11 March 2016 including, without limiting the full effect of this Orders, within 14 days:
a. The respondent, Ms Massalski, (“the respondent”) is to vacate Unit 2;
b. The respondent is to remove all her belongings from Unit 2 and the garage to Unit 2;
c. The respondent is to restore the power to the garage door motor of Unit B and remove the lock and chain from the gate at the rear of such garage, and do all things otherwise necessary to enable to applicant to have access to the garage.
Pending Unit 2 being rented out, the parties are to share the cost of maintenance in respect to both Unit 1 and Unit 2.
Pending the property being subdivided, the parties are to pay all council rates equally on or before the due dates for payment of each instalment.
The matter is referred to Registrar Cameron for a procedural listing including referring the matter to a Conciliation Conference.
The parties are not to file any further Applications in a Case in the proceedings without leave of the Court or until such time as the parties attend a Conciliation Conference.
The respondent is to pay the costs of the application associated with today’s hearing on a party / party basis, with such costs to be paid upon finalising of the property proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Riley & Massalski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 496 of 2015
| Mr Riley |
Applicant
And
| Ms Massalski |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is one of many applications that have been made in the course of ongoing litigation concerning the parties’ property interests which includes a two unit duplex at F Street, Suburb G (“the property”). This application concerns that property.
The relevant background to this matter is that, by Application in a Case filed by the husband on 22 January 2016, the husband sought orders to reopen the hearing that had been listed before me on 16 December 2015. That hearing was for the purpose of determining whether Unit 2 at the property should be subdivided or strataed with title transferred to the husband or, alternatively, rented out. At that hearing on 16 December 2015, both parties were in agreement that the property itself should be subdivided or strataed.
Consequent to that hearing, by orders made on 11 March 2016, the parties are required to attend to all necessary steps and sign all necessary documentation to effect the subdivision or stratering of the property and for Unit 2 to be rented out. My orders also dealt with the payment of outgoings, including utilities, rates, insurance, in respect of the property, and also maintenance.
Despite those orders having been made, the wife, who is the applicant in the substantive proceedings, has failed to vacate Unit 2 and, accordingly, it has not been possible for that unit to be rented out. The circumstances are that the wife has been living in Unit 1 since 2009 and continued to live there until January 2016. Specifically, the wife has confirmed that she slept in Unit 1 for effectively the period from December 2009 until January 2016. Despite her history of residing in Unit 1, subsequent to the hearing on 16 December 2015, the wife, in January 2016, moved into Unit 2.
On 24 March 2016, the wife filed an Application in a Case seeking a variation of the orders on 11 March 2016 effectively seeking to interchange a reference to Units 1 and 2. That is, the wife now seeks orders that would require Unit 1, rather than Unit 2, to be rented out. The reasons for the wife seeking to amend the orders made on 11 March 2016 are set out in her affidavit filed on 1 June 2016. Those reasons have been expanded upon by the wife in her submissions today.
The affidavit filed 1 June 2016 contains a substantial amount of material that is irrelevant to the wife’s current application, including allegations that the husband has engaged in illegal conduct. The affidavit also contains reference to without-prejudice negotiations. I have not had regard to that material. Those parts of the affidavit that appear to relate to the issue of whether Unit 1 rather than Unit 2 should now be rented out assert the following:
·Until January 2014, Unit 2 was occupied by the husband’s father, enabling the husband to obtain the benefit of renting out his father’s Suburb J property, which the wife alleges resulted in the husband receiving $120 000 in rental income.
·Unit 2 was partially furnished by the wife and that furniture was removed by the husband, who deposited the relevant furniture in the garage at Unit 1 in September 2014.
·The wife is also concerned that the husband continues to have access to Unit 1, as well as Unit 2, and alleges that the husband has removed personal items belonging to her from Unit 1.
·The wife is also concerned that Unit 1 no longer has insurance on it, whereas it appears that Unit 2 does.
·The wife has also expressed the view that Unit 2 is more difficult to access than Unit 1 and, accordingly, she states that she feels safer there. Her safety has been enhanced she states by the installation of security locks in Unit 2.
·The wife also states that she is now relieved of bad memories associated with her living with the husband in Unit 1.
·After changing the locks to Unit 2 in January 2016, the wife employed a student who cleaned the house and packed the husband’s belongings into boxes which were placed in a garage.
·Unit 2 also has a two-way bathroom between two bedrooms.
·The wife also alleges that Unit 2 was designed for her and the husband to run a business from home. Specifically, she alleges that both she and the husband attended kinesiology training and had planned to run the practice from home and, specifically, from Unit 2.
·The wife has also expressed a view that she would like to conduct music lessons.
·The wife believes that Unit 2 is more suitable for conducting a business because it is a back Unit 1nd people would not see valuable equipment as they went past Unit 1.
·The wife has also referred to a water leak that has now affected Unit 1.
·The wife believes that Unit 1 would be more valuable if it was rented out, that is, she believes it would obtain a higher rental and be easier to rent. One of the reasons she states this is because she has been advised by the agents that having street access rather than rear lane access would be of greater value to tenants.
The matters referred to by the wife in her affidavit, sworn on 1 June 2016, and the matters raised by her today, were not placed before the Court on 16 December 2015. This is despite the fact that within a month of the hearing, the wife moved from Unit 1 into Unit 2. Indeed, the wife stated today that she engaged a student in January 2016 to assist in cleaning out Unit 2 and she herself undertook a considerable amount of cleaning work in anticipation of Unit 2 being rented out.
Despite knowing the focus of the proceedings on 16 December 2015 was on whether orders should be made for Unit 2 to be subdivided and either sold or rented out, the wife elected to, nonetheless, move from Unit 1, which had been her primary place of residence, into Unit 2.
The reasons the wife has advanced for moving from Unit 1 to Unit 2 do not justify the failure to implement the orders made on 11 March 2016. Those orders are clear, that Unit 2 is to be rented out. The wife’s decision to move into and live in Unit 2 prevents that from occurring. As I have indicated, the grounds relied upon by the wife for seeking a variation of the orders are not persuasive and, accordingly, I will dismiss her application to vary the orders.
In the circumstances, I make an order for costs as sought by the husband. In making an order for costs against the wife I have had regard to section 117(2A) of the Family law Act 1975 (Cth) (“the Act”).
In terms of the financial circumstances of each of the parties, I note that the wife has an interest in the property at F Street, Suburb G.
The wife’s application to vary the orders of 11 March 2016 has been wholly unsuccessful.
The parties have an obligation to act sensibly and reasonably in respect to their conduct with each other, and if that does not occur, that conduct will be taken into consideration in determining whether an order for costs will be made.
In this matter the wife moved from Unit 1, where she had been residing for a number of years, into Unit 2. That action was despite the clear understanding of the parties and the Court, at the hearing on 16 December 2015 that the wife would continue to reside in Unit 1 and the subject matter of the dispute, in respect to which judgment would be given, concerned whether Unit 2 should be strataed and sold or rented out.
In the circumstances, I make the orders as set out at the commencement of my Reasons for Judgment including an order for the wife to pay the costs of the husband in respect to this application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 3 June 2016.
Associate:
Date: 8 May 2017
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