S & S
[2002] FamCA 59
•7 February 2002
[2002] FamCA 59
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No EA 13L of 2001
AT MELBOURNE File No CA 1333 of 2001
BETWEEN:
Ms S
Appellant Wife
- and -
Mr S
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, HOLDEN & MONTEITH JJ
DATE OF HEARING: 13 December 2001
DATE OF JUDGMENT: 7 February 2002
APPEARANCES: Ms Tonkin of Counsel, instructed by Julie Dobinson & Associates, appeared on behalf of the Appellant Wife.
Mr Crowley of Counsel, instructed by Farrar Gesini & Dunn, Solicitors, appeared on behalf of the Respondent Husband.
APPEALS – Leave to appeal – exercise of trial Judge’s discretion – no discernible error by trial Judge.
INJUNCTIONS – Exclusion from matrimonial home – dysfunctional family home life – significant tension and verbal conflict
The respondent husband had applied for an interim injunction requiring the wife to vacate the former matrimonial home and be restrained from entering the premises without his agreement.
The two children of the marriage, aged 19 and 15,lived in the family home. There was great tension in the home, substantial verbal conflict, the elder child did not talk to the mother and the mother had a poor relationship with the younger child. Faulks J had " a sense of foreboding that the situation would continue to deteriorate."
The wife had left the family home for a few days but returned when she discovered that the husband intended to obtain a divorce.
The wife asserted that there was room in the family home for all of them and the parties’ hours of work meant they would rarely be at home at the same time. She denied that the situation inside the home was intolerable.
Faulks J made interlocutory orders for the appellant wife to vacate the former matrimonial home upon being paid the sum of $158,000 by the husband; and restraining her from then re-entering the premises.
In seeking leave to appeal, the wife argued firstly, that his Honour purported to exercise power under s 79 to make an interim alteration of property interests rather than exercise jurisdiction under s 114. Allied to that ground was the assertion that the orders made in the injunctive proceedings would prejudice the wife's application in the property proceedings, namely that she wished to retain the home as the ultimate outcome.
Her second ground was that the evidence did not justify the making of the order granting the injunction.
Held: in dismissing the appeal
(per Kay, Holden and Monteith JJ)
The trial Judge had been exercising s114(1)(e) power and had been careful not to exercise s79 power in making the injunction. He had weighed the potential for prejudice to wife in the property proceedings into his decision.
Although each member of the Full Court hearing the appeal would have been reluctant to grant the injunction had they been sitting at first instance, no error could be identified in the reasoning of the trial Judge.
No substantial injustice to the wife arose from the trial Judge’s orders.
Section 114 merely requires a court to make such order as it thinks proper when determining an application for sole use of the matrimonial home. The grant of such an injunction is proper if there is an appropriate factual base supporting it.
In order to obtain leave to appeal the applicant had to satisfy the Court that there had been an error of principle by the trial judge or that the orders made caused a substantial injustice to her. She had not satisfied this burden.
LEAVE TO APPEAL REFUSED
NO ORDER AS TO COSTS
On 13 December 2001 we dismissed an application brought by the wife in these proceedings seeking leave to appeal against orders made by Faulks J on 26 November 2001. These are the reasons why we dismissed the application.
His Honour had ordered that
1. “Upon the wife being paid the sum of $158,000 by the husband the respondent wife will vacate the former matrimonial home at […, K] and deliver up sole occupation of the house to the husband.
2. The wife will then be restrained from entering upon those premises except with the prior agreement of the husband or pursuant to an order of the Court.
3. Any payment made by the husband to the wife will not constitute in this context or be regarded as in anyway a proper settlement of matters between the parties about property and will constitute in these circumstances an interim entitlement.
IT IS NOTED THAT:
4. The husband through his lawyer has indicated that any such payment will not constitute in any way a prejudice to the wife's claim that she wants ultimately to be the person who is the registered proprietor of the home and to live in that house."
Background
The parties married in 1975. There are two children of the marriage who were aged 19 and 15 respectively at the date of the hearing before Faulks J.
In his material the husband asserted the marriage had been unhappy for a number of years. There had been frequent arguments and he considered the marriage was over.
He asserted that on 12 October 2001 the wife informed him that she was leaving and the next day she packed three suitcases full of her clothing and other belongings and left the home without telling him where she was going.
He said that on 17 October 2001 his solicitors sent a letter to the wife at her mother's home indicating that they had instructions that he sought an order that she vacate the home. The order also contained an offer for settlement of property on the basis that the home would be transferred to the husband in return for a payment to the wife. The husband indicated that on 20 October 2001 without warning the wife moved back into the home.
He deposed that the marriage had ended. The wife had a poor relationship with the children. M has not talked to her mother for six weeks. T does not talk to her very much. When they talk, they argue. "There is great tension in the home and we are all upset.” He suggested that the wife could live with her almost 80 year old mother but that he had nowhere else to live. He asserted that the children had told him that they wished to live with him. He said:
"The situation in the house is intolerable. It is a three-bedroom home. It is not so large that we can stay away from each other."
He predicted that the outcome of the property settlement case would be that he would retain the home and pay his wife out. He asserted that she would not be able to afford to buy him out.
On 25 October 2001 the husband filed an application seeking that the home be transferred to him in return for a payment to the wife of $100,000. He also sought an interim order that the wife immediately vacate the home.
The material relied upon by the husband included an affidavit by the child M in which she deposed that the parties frequently argued.
"My mother often shouts at my father and calls him names...My mother often shouts abuse at me and brother [T]. I try to have as little as possible to do with her and I do not speak to her if I can avoid it. I have not spoken to her for over a month. I do not wish to talk to her."
She further deposed that T has said that since his mother came back
"I wish she'd leave. I don't want her here. I can't stand it."
In her response filed 13 November 2001 the wife sought an order that the interim application be dismissed and that a conciliation conference be ordered. She sought by way of final orders a transfer of the home to herself, in addition to the payment by the husband to her of $55,000.
In her affidavit evidence the wife asserted that she had withdrawn from the home on 13 October 2001 "to stay with my mother for a short period of time" after there had been an angry outburst from M towards her. She said that M had been injured in a motor vehicle accident in June and was prone to intense mood swings. She thought that it was appropriate to remove herself from the situation hoping that M would calm down. She said she spoke to M on the phone on both 16 and 17 October and spoke of conversations that showed considerable tension between them.
She returned to the home on the Saturday after learning that the husband was anxious to divorce her.
She suggested that the house was large enough to accommodate all members of the family, with the husband occupying the study as a bedroom. She said that the working hours of the parties were such that there would be only a few occasions when they would be at the home at the same time. She said that she had a strong attachment to the house that she wished to retain pursuant to the property settlement. She acknowledged that she had some recent counselling over relationship difficulties. She denied that the situation in the home was properly described as "intolerable".
In a second affidavit sworn 22 November 2001 she asserted that the husband was in a better position to afford suitable accommodation than she was. She did not believe that T had any difficulties with her being in the home. She did not accept that M would move out of the home if she came back into the home. She was hopeful that her continued presence in the home would enable M to understand the family situation more clearly and would result in their relationship and communication improving over time.
The matter was heard on 26 November 2001 and each of the parties gave a short amount of viva voce evidence. In particular, the mother gave evidence of some conversations she had managed to have with T in the days preceding the hearing.
In the course of the proceedings before Faulks J it became apparent that the husband had available in a roll-over fund a figure in excess of $180,000 which if cashed in would free $158,000 after tax.
The judgment
Faulks J characterised the nature of the application before him as an injunction pursuant to s 114(1)(e) of the Family Law Act saying
"ultimately [it] is a question of construction on the facts of this case of the circumstances and a determination as to whether I should grant an injunction..."
His Honour found that:
"12.It is clear, in my opinion, from the material filed by the husband that there is at least substantial verbal conflict between [the wife] and the children and that it is not likely that this will improve over a period of some twelve months in which the parties would be obliged to live together under the one roof before a final hearing was held if I were to accede to the proposition contended for by [the wife].
13....I do accept that the evidence of [the husband] is quite clearly that the marriage is at an end and that he does not wish it to continue and that the situation between him and his wife was one of tension...
14.Moreover, the conduct of the children, so far, is such as to leave me with a sense of foreboding that the situation would continue to deteriorate over the course of the next year rather than to improve..."
His Honour said:
"18.In my opinion, the appropriate - in this case where there is a situation where it would be feasible for [the wife] to re-establish herself in separate accommodation with the financial assistance that might be provided to her from the husband, it is both consistent with the terms of the Act, consistent with the philosophy of the Act in allowing that the marriage may come to an end contrary to the wishes of one party, consistent further with the best interests of [T] that there should be a situation in which he remains in the home in arrangements that would permit him to remain living with his father which it seems to me at the present is at least his preference.
19.Accordingly, as there is no application by [the wife] in her own right for exclusive occupation, it seems to me that I should grant the husband's application, but on terms that he makes a payment to [the wife] prior to her leaving the home of $158,000 representing the proceeds of his roll-over fund which will enable the house to be preserved intact in both names."
The appeal
The wife has sought leave to appeal against that order and if leave is granted has sought to appeal essentially on two grounds.
· Firstly, that his Honour purported to exercise power under s 79 to make an interim alteration of property interests rather than exercise jurisdiction under s 114. Allied to that ground was the assertion that the orders made in the injunctive proceedings would prejudice the wife's application in the property proceedings, namely that she wished to retain the home as the ultimate outcome.
· The second ground was that the evidence did not justify the making of the order granting the injunction.
Leave required
Section 94AA of the Family Law Act1975 provides that an appeal does not lie to a Full Court of the Family Court from a prescribed decree except by leave of the Full Court of that Court. Regulation 15A of the Family Law Regulations prescribes as such a decree "an interlocutory decree (other than a decree in relation to a child welfare matter)".
There was no suggestion before us that this decree was anything other than a decree that required the leave of the Court before an appeal could be heard.
The substantive power of the Court to grant the injunction requiring the wife to vacate the former matrimonial home and stay away from it is to be found in s 114 of the Family Law Act. It provides that
"In proceedings [between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship]… 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..."
The principles governing the grant of leave to appeal from an interlocutory judgment or order are well known and were not in issue before us in these proceedings. In order to succeed in such an application the applicant must satisfy this Court that there has been an error of principle by the trial Judge and/or that the orders made caused a substantial injustice to her (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Rutherford and Rutherford (1991) FLC 92-255; 15 Fam LR 1).
Although there has been some debate about whether the twin criteria of error of principle and substantial injustice should be applied disjunctively or conjunctively, the High Court (per Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc at 177 said:
"For ourselves we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various."
At the hearing before us counsel for the applicant conceded, that if it was appropriate to characterise his Honour as exercising s 114(1)(e) power and not exercising s 79 power then there was no exercise of that power on a wrong principle. The only injustice that could be said to have flowed from the outcome of the decision that might support an application for leave to appeal was the injustice that the wife found herself, on less than satisfactory evidence, excluded from her own home. This would have the effect of pre-empting her property application that she retain the home.
We indicated in the course of argument that we saw little merit in the suggestion that the trial Judge had in fact exercised any form of s 79 power. The trial Judge spelt out, both in his reasons for judgment, and in his orders, that he was careful not to exercise s 79 power. The provision of a capital sum to the wife was seen as an appropriate condition to the grant of the relief sought by the husband. This placed the wife in funds that would have enabled her to acquire alternative accommodation. The trial Judge was not blind to the reality that the husband may find himself with some forensic advantage when it came to the hearing of the ultimate property proceedings because he was in residence in the house and the wife was not. However, given the circumstances that his Honour found relating to the situation in the home, his Honour weighed that factor into account in determining whether or not to exercise his discretion.
Whilst we are sympathetic of the wife in respect of the ultimate outcome of these proceedings, we cannot say that they work any substantial injustice to her in the sense discussed in the cases mentioned above.
She will have adequate funds to acquire other accommodation pending the outcome of the proceedings. She will still be able to assert at the hearing of the property applications that some order for alteration of property settlement should be made in her favour, including an order for transfer of the home to her. Insofar as her relationship with her children might be seen to be damaged by her being absent from the home, an application can be made to the Court to endeavour to establish a contact regime between her and her son T.
The wife acknowledges that her relationship with M is at the present time a very tenuous one, brought about, she says, as a result of M's ill health rather than her own conduct. We think that nothing ultimately turns upon the reason why the relationship is poor. There is nothing in the material that would suggest it has any better hope of being repaired with the ongoing situation in the home rather than a situation where she and M live apart.
Relevant criteria in sole use cases
The criteria to be applied when determining a sole use application are surprisingly vague. In Davis v Davis (1976) FLC 90-062; 1 Fam LR 522 the Full Court said at 75,309:
'"The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party."
In Page v Page (1981) FLC 91-025; 6 Fam LR 669 the Full Court cited with approval the English decision of Cumming-Bruce J in Bassett v Bassett (1975) 1 All ER 513 at p 520 where his Honour said:
"In my view, the approach of the court to these cases of application to expel a spouse from the matrimonial home should be strictly practical, having regard to the realities of family life. Where a mother is looking after a child or children, it is necessary to examine with the utmost care whether it is really practicable for the husband and wife to continue to live in the matrimonial home ... I extract from the cases the principle that the court will consider with care the accommodation available to both spouses, and the hardship to which each will be exposed if an order is granted or refused, and then consider whether it is really sensible to expect a wife and child to endure the pressures which the continued presence of the other spouse will place on them. Obviously inconvenience is not enough. Equally obviously, the court must be alive to the risk that a spouse may be using the instrument of an injunction as a tactical weapon in the matrimonial conflict ... In proceedings pending suit it is unlikely that the court will be able to predict who will be living in the matrimonial home after all the problems of custody, finance and property adjustment have been determined. Where there are children, whom the mother is looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents, as the long-term effect on a child is liable to be of the utmost gravity. This factor ought to weigh at least as heavily in the scales as the personal protection of the parent seeking relief."
Their Honours in Page went on to say at 76,249:
"The effect of these passages, therefore, is to correctly state the approach which the Court should take in cases such as the present one, where an intolerable situation has arisen within the matrimonial residence rendering it imperative for the parties to be separated by order of the Court.
The court must decide who should leave, having regard to all the circumstances as set out in Davis' case. In many cases the need to provide a home for the children will be a decisive factor."
In Davis v Davis (1983) FLC 91-319; 8 Fam LR 975, Baker J at 78,170 quoted Lindenmayer J in Price v Price (unreported, 12 July 1982) who said:
"…Page’s case demonstrates a softening of the Court's attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that 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."
Finally it is appropriate to refer to the judgment of the Full Court in Sieling v Sieling (1979) FLC 90-627; 4 Fam LR 713 where their Honour's discussed the general nature of an injunction under s 114 saying at 78,264:
“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.”
Conclusion
This was a case in which each of the members of this Full Court sitting as judges of first instance would have been reluctant to grant the injunction in the circumstances.
An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:
"It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"
Butler Sloss LJ described it as “an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.
There are no words of limitation in s 114 other than the grant of the injunction must be "proper". But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.
In this case the evidence was of a dysfunctional family home life, with tension and discomfort, especially for the adult child, and to a lesser degree for the 15-year-old. It would be unlikely that the mere existence of tension and argument in the home, short of unacceptable conduct or a clear detriment to the welfare of a child, would lead us to exclude an owner of the home from the lawful occupation of his or her own home. This would be especially true if there was no immediate viable alternative accommodation available. But we were not the ones who were asked to exercise the discretion.
The rules with respect to discretionary judgments are clear. In House v. The King (1936) 55 CLR 499, at pp 504-505, Dixon, Evatt and McTiernan JJ. said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred."
No error of principle has been demonstrated. No error of fact has been demonstrated. No error of law has been demonstrated. We cannot say that the end result is plainly unjust. All we can say is that we would not have reached the same result as the trial Judge.
For these reasons we deem it appropriate that the leave be refused.
Costs
We were asked to consider the issue of costs as a result of our ruling. The respondent sought costs in the sum of $3,500 which we find quite an inappropriate sum in the circumstances. This was a short appeal on a limited issue. It lasted less than an hour. Given the gravity of the matter and the relative financial positions of the parties, even though the application was unsuccessful, in our view it would be inappropriate for us to make any costs order.
I certify that the preceding
45 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
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