Sansom and Sellar

[2013] FamCA 507

FAMILY COURT OF AUSTRALIA

SANSOM & SELLAR [2013] FamCA 507

FAMILY LAW ─ INTERLOCUTORY APPLICATION ─ Where the Court made an order that the applicant be granted sole and exclusive use and occupation of the property of the parties

Family Law Act 1975 (Cth)

Dean & Dean (1977) FLC 90-213

APPLICANT (in the application in a case): Mr Sansom

RESPONDENT (in the application in a case): Ms Sellar

FILE NUMBER: SYC 7406 of 2012

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kinchington

SOLICITOR FOR THE APPLICANT: Kinchington & Associates

COUNSEL FOR THE RESPONDENT: Mr Mullan

SOLICITOR FOR THE RESPONDENT: Goldrick Farrell Mullan Solicitors

Orders

IT IS ORDERED

1. That pending further order and commencing 28 days from today’s date the applicant be granted sole and exclusive use and occupation of the property at … C Street, Suburb D.

2. That within 28 days the respondent vacate the property at … C Street, Suburb D.

3. That at the expiration of 28 days from the date of these orders the respondent be restrained from further entering or remaining upon the said property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sansom & Sellar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7406 of 2012

Mr Sansom

Applicant in the Application in a Case

And

Ms Sellar

Respondent in the Application in a Case

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case arising out of a de facto relationship between Mr Sansom (“the applicant”), and Ms Sellar (“the respondent”).  They commenced to live together in 1996 and separated on 4 October 2012, remaining resident together in the same property.  The property at C Street, Suburb D is held in the name of the applicant but his evidence is that the property was specifically purchased for the parties to live in together and I do not place any great weight on the fact that he is the registered proprietor. 

2. The power of the Court to grant the order which is sought is not disputed.  What is relevant is the competing applications before the Court.  The applicant seeks an order that he have sole occupation of the Suburb D property.  The respondent does not seek that she has sole occupation, but seeks only an order that the application be dismissed.  Thus, if the respondent is successful in her application she will continue to reside in a property with the applicant, in circumstances which she tells the Court are untenable to her. 

3. The application is entirely discretionary. It is not determined on the balance of convenience, which is but one factor.  In Dean & Dean (1977) FLC 90-213, Wood J observed that in cases of intense marital disharmony, frequently coupled with assaults by one party to the other, the Courts need very little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home.

4. In relation to these parties, there has been an application for an Apprehended Domestic Violence Order which was dismissed.  It is alleged that there have been further assaults by the applicant upon the respondent who in January 2013 made complaints to the police. 

5. As a result of those complaints, the applicant was ultimately charged, after further incidents, with assaulting the respondent.  The respondent tells the Court in those proceedings that she is in fear of further physical violence from the applicant, that she is harassed by him, and that she fears he will continue to assault her as long as she stays in the home.  As a result of those complaints, the applicant is, at the present time, the subject of an Apprehended Domestic Violence Order for the protection of the respondent. 

6. The circumstances which have been created by the behaviour of the parties and the criminal charges, fit within the comments made by Wood, J in Dean & Dean, and it is clearly untenable that these parties continue to reside within the same premises. 

7. The respondent has accepted a redundancy from her employment and there is no longer any necessity for her to live in the area of the Suburb D property.  There is no evidence before the Court about the lump sum which she will receive by way of redundancy but I note that it is conceded in her case, that she will receive a lump sum.  I further note that the respondent has in investments, a sum of approximately $132,000.  In addition, the respondent is the owner of two properties, one in Suburb E and one on the Gold Coast, Qld, both of which are rented. 

8. The Suburb E property, according to the respondent, is subject to a lease, but she gives no evidence of the term of the lease, whether or not it is current or being held over, and whether there has been any approach to the tenant about vacating the property.  The Gold Coast property which is a more substantial property is rented to the respondent’s son for $325 a week. 

9. In circumstances where I have come to the view that it is inappropriate for the parties to continue to live in the one residence, and where I accept that the respondent has the means, if she chooses to do so, to move out, I can only assume that her wish to stay in the premises, in which she says she is in fear of physical harm, is tactical. 

10. I consider it is appropriate that the premises should be occupied by only one of the parties and since the only person who applies for that order is the applicant, I propose to make the orders which he seeks. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 June 2013.

Associate: 

Date: 04/07/2013