Saunders and Saunders and Anor

[2016] FamCA 531

FAMILY COURT OF AUSTRALIA

SAUNDERS & SAUNDERS AND ANOR [2016] FamCA 531

FAMILY LAW – INTERIM – INJUNCTIONS - Where an application is made under section 114(1) – Where the husband and son seek to exclude the wife from the dwelling in which she has lived for about 38 years - Where the parties have co-existed on a property for almost three years since separation without significant incident– Where the effect of making the order could terminate the parties right to a valuable asset in a life interest in a cottage under a will - Where the application is dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Saunders

RESPONDENT: Mr Saunders

2^nd RESPONDENT: Mr B Saunders

FILE NUMBER: WOC 419 of 2014

DATE DELIVERED: 20 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Tiyce Partners

COUNSEL FOR THE RESPONDENTS: Mr Anderson

SOLICITOR FOR THE RESPONDENTS: Stacks Heard McEwan

Orders

Orders made 26 April 2016

1. I dismiss the joint application made by the husband and the 2^nd respondent by way of a Response to an Application in a Case filed 14 March 2016. I reserve my reasons.

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

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FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 419 of 2014

Ms Saunders

Applicant

And

Mr Saunders

Respondent

And

Mr B Saunders

2^nd Respondent

REASONS FOR JUDGMENT

1. On 26 April 2016 I made the following order:

   1. I dismiss the joint application made by the husband and the 2^nd respondent by way of a Response to an Application in a Case filed 14 March 2016. I reserve my reasons.

   These are those reasons.

2. The parties have co-existed in three different dwellings on a property for a period of almost three years since the separation of the husband and wife without major incident.

3. The husband and the son of the parties’ marriage (the 2^nd respondent) made a joint application contained in a Response to an Application in a Case filed 14 March 2016 for orders that would exclude the wife from the dwelling in which she has been living for about the last 38 years (“the worker’s cottage”).

4. The husband and the 2^nd respondent seemingly would rely on s 114(1) Family Law Act 1975 (Cth) (“the Act”) to make that application.

5. Section 114(1) of the Act requires me to make such order as I consider proper. Relevant matters to consider include the needs of the husband and wife, hardship caused to each party and any conduct by the wife that would justify expelling her from the worker’s cottage.

6. The evidence relied upon by the husband and the 2^nd respondent are contained in [17] to [28] of the affidavit of the husband filed 14 March 2016 and [28] to [44] of the affidavit of the 2^nd respondent filed 14 March 2016.

7. Counsel for the wife successfully took objection to a significant number of the paragraphs relied upon by the applicants.

8. The wife responded to the husband’s evidence and relied upon [115] to [149] of her affidavit filed 26 April 2016. No objection was taken to the evidence in that affidavit.

9. The 2^nd respondent is the current owner of the property on which a business operates pursuant to and subject to the Will of the late Ms C. A copy of the Will was tendered (Exhibit 1).

10. As I commented during submissions, the application brought to restrain the wife from continuing to reside in the worker’s cottage was on the flimsiness of grounds.

11. After the parties had agreed to separate on or about 4 April 2013 the husband, with the consent of the 2^nd respondent, moved to a dwelling annexed to the main house.

12. Although the husband now joins the 2^nd respondent in bringing the application, his affidavit indicates that it was the 2^nd respondent who originally sought that his mother vacate the worker’s cottage.

13. The husband and the 2^nd respondent are totally estranged from the wife and the wife has not seen or spent any time with her grandchild, the child of the 2^nd respondent, who is now one year of age.

14. Counsel for the husband and the 2^nd respondent referred to the balance sheet (Exhibit 2) asserting that there were sufficient monies on the face of the balance sheet to enable the wife to reaccommodate herself in accommodation off the property and that accordingly there would be no hardship in her moving. That submission was not seriously challenged by counsel for the wife but that is only one matter that needs to be considered.

15. Both the husband and the 2^nd respondent claim that it is inconvenient for them to have their wife and mother continue to reside in the worker’s cottage. The husband makes the assertion that the worker’s cottage has always been used for workers and states that as an employee of the business it is sensible and practical for him to reside in the worker’s cottage (to the exclusion of the wife). In fact, the 2^nd respondent makes it clear at [38] of his affidavit that he requires the worker’s cottage to be available for him to be able to accommodate an employee whom he intends to promote and/or he requires it for accommodation for an additional employee he may recruit.

16. I note there is a part of the wife’s affidavit where she records that the 2^nd respondent lived off the property for a period of time. If that evidence is correct, it may be the case that it is not absolutely necessary that workers live on the property.

17. In his affidavit, the 2^nd respondent states at [42] “…  the Workers Cottage is located within our direct line of sight, is at the drive way for our home, and is frequently [utilized].” And at [44] “As a result [D Pty Ltd] has implemented a policy that I am the only person who is allowed to work … in front of the Workers Cottage. However, I feel very unsafe and on edge working in such close range to the First Respondent. I fear for my wife’s, my fathers, and my children(s) safety if she remains on the property.”

18. The wife says at [131] of her affidavit, “… Between the worker’s cottage and the [main house] there are two hedges that are over 10 feet plus tall. The inhabitants of each dwelling are unable to see each other. The driveway of the [main house] is approximately 100 metres from the worker’s cottage.” And at [132], “Whilst the [there is work done] in the paddock directly in front of the worker’s cottage and walk up [E Street] past the cottage, I make every effort not to be in the front yard when either [the husband], [the 2^nd respondent] or their staff are in the front paddock or driving past.” She states at [141] “When I am at the worker’s cottage, I spend the majority of my time in my office which overlooks the front paddock. Due [to] the trees and my garden, I have a very limited view of the front paddock from my office however I do have a clear view of cars coming up the road. This window does allow me to see who is entering the front paddock which is why I was able to alert [the 2^nd respondent] and [the husband] when [the husband’s] brother [Mr F] had a serious accident in May 2013. I have also seen a number of [D Pty Ltd] staff enter the front paddock, contravening [the 2^nd respondent’s] supposed policy”. 

19. Based on the evidence, there does not seem to have been any incident of any significance in the last three years, and although the parties have not spoken to one another or communicated with one another in that period, the parties have in fact coexisted peacefully on this property and property for three years since the husband and wife separated and there has not been any untoward behaviour one against the other..

20. The husband and 2^nd respondent claim that the wife no longer has a right of residence to the worker’s cottage under the terms of Ms C’s Will. Clause 7 of the Will of Ms C, provides the following:

    7I GIVE [MR SAUNDERS] and [MS SAUNDERS] the right to reside in the workers cottage on “[E Street]” (in which they are residing at the date of the making of this will) for their joint lives and for the life of the survivor of them or until they both vacate the cottage, free of any rent or occupation fee, but on the following conditions:

    7.1they pay all charges for gas, electricity and any other services to the cottage and keep the cottage in a good and habitable state of repair;

    7.2they keep the cottage insured against fire and other insurable risks to the satisfaction of the owner;

    7.3 the right of residence will come to an end if both of them or the survivor of them vacate the cottage and they will be taken to have vacated the cottage:

    7.3.1upon written notification from both of them or from the survivor of them to the owner to that effect; or

    7.3.2if the cottage has not been occupied by either of them for a continuous period of 3 months and after service of written notice by the owner on them, either of them:

    (a)      fails to notify the owner within 1 month of the date of service of the notice of his or her intention to return to the cottage; or

    (b)      notifies the owner in writing of his or her intention to return to the cottage but fails to return to the cottage within a further period of 2 months from the date of service of the notice of intention; or

    (c)      if both of them or the survivor of them is hospitalised for any periods aggregating more than 10 months in any month period.

    (emphasis added)

21. Counsel for the husband and the 2^nd respondent argue that the action of the husband leaving the worker’s cottage meant that the parties and particularly the wife, no longer had any further interest arising from Ms C’s estate and in particular under clause 7 of the Will of Ms C.

22. I do not have to decide if that is correct or incorrect. As discussed during submissions, on a first reading of the plain words of the Will, there would be a strong case for an interpretation in the opposite direction. The use of the word “both” in clause 7, particularly in clause 7.3, could mean that there is a strong basis for interpreting the Will on the basis that the wife continues to have a life interest in the property whilst ever she continues to live there. If that interpretation ended up being correct, the effect under the Will of making the order as sought by the husband and the 2^nd respondent would terminate what is currently a valuable asset in the hands of the husband and wife, namely a life interest in the worker’s cottage.

23. I find that there is no factual basis that would support the conclusion that it would be appropriate to make the orders as sought.

24. The worker’s cottage has been the wife’s home for over 30 years. Her application for final orders is that she be able to continue to reside in this dwelling on the property. To make an order requiring the wife to leave the dwelling at the current time would be pre-emptive of a determination of the wife’s final application. It would be a serious matter to turn the wife out of the home she has lived in for about 38 years without a full hearing on the merits. I decline to do so.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 June 2016

Associate:  …

Date:  20.6.2016