Saveree and Elenton

[2014] FamCA 38

FAMILY COURT OF AUSTRALIA

SAVEREE & ELENTON [2014] FamCA 38

FAMILY LAW – PROPERTY – Husband to vacate property

Family Law Act 1975 (Cth) s 114(1)

Davis & Davis (1976) FLC 90-062
Fedele & Fedele (1986) FLC 91-744
O’Dea & O’Dea (1980) FLC 90-896

APPLICANT: Ms Saveree

RESPONDENT: Mr Elenton

FILE NUMBER: SYC 7622 of 2013

DATE DELIVERED: 31 January 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 24 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Thomas

SOLICITOR FOR THE RESPONDENT: Mcdonell Milne Toltz Family Lawyers

pending further order:

1. That the husband vacate the property situate at and known as L Street, Suburb M in the State of New South Wales (“the Suburb M property”) by 5:00pm on 21 February 2014.

2. That the husband leave the Suburb M property in good order and condition.

3. That the husband is restrained from entering, approaching or doing any act which interferes with the wife’s use and occupation of the Suburb M property.

4. That, otherwise, the competing applications for interim orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saveree & Elenton 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 7622 of 2013

Ms Saveree

Applicant

And

Mr Elenton

Respondent

REASONS FOR JUDGMENT

the proceedings

1. The parties to these proceedings, Ms Saveree and Mr Elenton, were de facto partners for some twenty five years.

2. By an Initiating Application filed on 20 December 2013, Ms Saveree (hereinafter referred to as “the wife” for convenience), sought final orders for settlement of property and parenting in relation to the parties’ two children:

   G born in March 1996 (17) and

   E born in December 1999 (14).

   She sought interim orders to the effect that she have sole occupation of the former matrimonial home at L Street, Suburb M to the exclusion of the de facto husband Mr Elenton (“the husband”). 

3. By a Response filed on 22 January 2014 the husband sought final orders for settlement of property and dismissal of the wife’s application in relation to the parties’ children.   He also sought the dismissal of the wife’s application for exclusive occupation of the Suburb M property.  On the day of the interim hearing, counsel for the husband submitted a Minute of Orders sought in the alternative, which was in these terms: 

   1.That the applicant and children occupy the first floor of the home at [L Street, Suburb M] to the exclusion of the respondent.

   2.That the respondent occupy the ground floor of the said premises to the exclusion of the applicant.

   3.        That the parties be restrained from coming into contact with each other.

   4.That any contact between the Respondent and the children: born [G] … March 1996, [E] … December 1999 be at the instigation of the said children.

   5.That the court dispense with the Case Assessment Conference on 24 March 2014 at 11:30 and appoint a conciliation conference.

   6.        No order as to costs.

   7.That the applicant be responsible for securing the closing of the door between the two residences to her satisfaction.

Background

1. The husband and wife, who are aged 44 and 51 respectively, began cohabitation on 3 January 1988 and separated on 26 November 2013.  On 12 November 2013 G left the home and went to stay with a friend.  G sent a text message to the wife on that day which read:

   I need to get away from home due to the stress and in order to study.  [E] also wants to leave but she will not leave you alone with [the husband].  Being at school, I feel fine and don’t feel it necessary but at home, I want to get out.  Don’t ask Dad to leave instead of me, unless you want to.  I love you and feel guilty not wanting to be home but Year 12 is important.  Thank you.  [G] xxx

2. On 25 November 2013 a school counsellor, Ms A, telephoned the wife.  Ms A said:

   The girls have independently come to me at the school’s health centre (where the school counsellors are located) and told me that they were fearful for your safety.  I think you should come to the school at lunchtime for further discussions with the girls and me.

   The wife attended the school that day and Ms A said to her:

   If [G] has left and you have removed your cello and your dog, why aren’t you removing yourself and [E]?

3. On 26 November 2013 the wife and E moved into a serviced apartment, where they stayed for about one week.  On 7 December they went to stay in the home of a friend who was overseas.  It seems that G stayed in these premises as well.  They have not since returned to live in the former matrimonial home. 

4. In her affidavit of 19 December 2013 the wife set out a lengthy history of alleged angry, intimidating behaviour on the part of the husband which she claimed has escalated during the last five years.  In his affidavit of 21 January 2014 the husband admitted to some displays of anger, intimidation and verbal abuse as alleged by the wife.  There was no suggestion that the husband has perpetrated physical violence against the wife or the children. 

5. Inter alia, the husband admitted to the following allegations by the wife of inappropriate conduct on his part: 

   14.      On 15 April 2013 [E] was away and [the husband], [G] and I went to [Suburb B] to do a few chores and have lunch.  We went to a locksmith, a chicken shop and a restaurant and [the husband] became angry about each one, shouting abusive things about the “incompetent idiots” who served us.  He repeatedly complained that no-one was listening to him.  When I later spoke to [G] about our next family holiday, she said to me:

   I don’t even want to go out to lunch with Dad again, let alone a family holiday.

   19.      We had a further session on 9 August 2013 with [Ms C].  Unfortunately, that session did not assist us because she only achieved in making [the husband] angry.  [The husband] said to me afterwards:

   She kept focusing on my anger and did not tell you to change anything.

   22.      On 23-25 August 2013, [the husband] and I flew to Brisbane to attend a wedding.  On Saturday morning of 24 August 2013 (while we were in Brisbane) [E] rang at around 7am to say good morning and [the husband] got extremely angry shouting at me:

   It’s not appropriate that you speak with her.  This weekend is supposed to be about us, not the children.

   [The husband’s] rage escalated and he continued to shout and swear at me, followed by him attempting to jump out of the hotel window.  As I was easily able to stop him I suspect he was trying to manipulate me but I still felt so scared.

   29.      On 29 September 2013, [the husband] became very angry after he spilled some beer and I cleaned it up.  His rage escalated very quickly and he smashed a plastic bucket into the stairs and then kept smashing his fist violently into the stairs.  The girls were both there and saw it happening.  [G] was yelling at him to stop.  The three of us were distressed and terrified.

   30.      The following day I drove [the husband] to his GP to look at his hand.  I sat in the waiting room crying.  [The husband] was referred for an x-ray, which later showed that he had fractured his little finger.  [The husband] said to me words to the effect of:

   I’ve tried counselling, I’ve been to the GP, I’ve tried to not be so angry.  What else can I do?  I think you should get therapy to deal with your anxiety around anger.

   32.      On 3 October 2013, when [the husband] got his x-ray results showing a fractured finger, he became angry again shouting and screaming at me saying:

   It’s all your fault.  You drove me to it.

   40.      On 23 November 2013, we were in bed when [the husband] started being verbally abusive about one of my friends he had rung, shouting at me:

   [Ms D] told me that the girls cannot remain in such an abusive environment and that I need to think about their needs.  What would she fucking know?  Who is she to fucking judge me?

   I said to [the husband]:

   I’m not going to tolerate this verbal abuse anymore.

   I turned on the bedside lamp and left the room…

   41.      At about 8:20am the following day, [the husband] apologised to me for his behaviour the night before.  I accepted his apology, and said to him:

   You should know that [E] was very distressed by what happened.  What she said to me was ‘Did he hit you?’

   43.      I returned home at about 3:30pm that day and noticed a timber chair was missing from the downstairs study where I conduct my [healthcare] business.  I asked [the husband] where the chair was and [he] said:

   It was surplus to our requirements.

   I pressed [him] for further information and he finally admitted:

   I smashed the chair because it was the first thing I came into contact with when I came back inside the house this morning.

   48.      During the session with [Ms F], [she] said words to the effect of:

   [E] must be removed from the abusive environment under DOCS guidelines and [the husband] should leave the house for twelve weeks and continue to work on his anger.  The state of the relationship then needs to be assessed after twelve weeks.

   [Ms F] also said:

   I recommend that [the husband] meet regularly with the girls in a public place during the twelve week separation period and that he see his General Practitioner to obtain a referral to a psychiatrist.

   I had said:

   I will cooperate with your suggestion that [the husband] retain contact with the girls.

   49.      [The husband] became angry and distressed during the session.  [He] swore several times during the session and [Ms F] asked him to stop swearing, which he attempted to do but he continued to express his anger openly, loudly and assertively.  [He] and I left the session together.  I offered to help [him] find some alternative accommodation, but he walked off in the opposite direction to my car.

6. Annexed to the wife’s affidavit was a report dated 28 November 2013 from Ms H, a counsellor at G’s school. Ms H began to consult with G on 24 October 2013, when she sought assistance with “ongoing parental conflict at home”.  This report read in part as follows:

   This parental conflict is significant and has been occurring over the last twelve months; however it has escalated in the last four months.  Over the last four months this ongoing parental conflict has had a negative impact on [G] including:

   ·Hindering her ability to concentrate on academic work or study

   ·Substantial increase in stress

   ·Decreased energy

   ·Detrimental impacts on her wellbeing

   ·A disruptive and inappropriate study environment at home

   Of particular significance to this application; this parental conflict has escalated to a very serious level over the last three weeks and [G] no longer felt safe to remain living in the family home which led her to find an alternative place to live.  At times she has concern for the safety of herself and other family members.  Her mother and younger sister have also sought alternative temporary living arrangements at this current time to ensure their safety.

   These events have been incredibly disruptive, traumatic and stressful for [G].  It is my opinion that [G’s] academic performance in this assessment block would have been compromised and therefore not at her usual level dur to this parental conflict.

7. It was clear that this report was prepared for a purpose other than the present proceedings.  The last paragraph thereof refers to “[G’s] application for illness/misadventure” and to the likelihood that her academic performance “would have been compromised and therefore not at her usual level due to this parental conflict”.

8. The wife alleged and the husband admitted that she has requested that he leave the former matrimonial home and allow her and the children to return to the premises.  He has continued nonetheless to occupy the property. 

9. The wife is a healthcare worker and operates a small practice from the home.  The husband contended, and the wife did not deny, that she sees approximately eight clients in the home and otherwise works at various schools in the local area.  According to her Financial Statement the wife earns approximately $736 gross per week from her practice.  In addition, she receives rental of $245, dividends of $68 and bank interest of $47 per week, making a gross income of approximately $1,096.  The wife pays tax of $136, leaving a net weekly income of approximately $940.  She asserted a total weekly expenditure of $1,626 but that figure included a sum of $700 on account of a CBA MasterCard debt “paid by de facto husband”.  As at 19 December 2013 the wife held savings in a total amount of approximately $82,000.

10. The husband is a government employee.  His gross weekly income is $1,208, which consists of salary of $1,187 and bank interest of $20.  He pays tax of $285, leaving a net weekly income of $902.  The husband set out in his Financial Statement total weekly expenses of approximately $1,048, which included the sum of $700 on account of a credit card debt.  As at 21 January 2014 the husband held savings of approximately $45,000.

11. For two reasons, I was somewhat puzzled about this payment of $700 per week on account of credit card debts.  Firstly, the only reference to such a liability in the Financial Statements of the parties were debts of the wife of $702 to the Commonwealth Bank and $900 to Westpac.  Secondly, it seems that the parties could discharge any credit card debts from savings at any time.

12. The former matrimonial home is unencumbered and the only liabilities in the parties’ Financial Statements were the two credit card debts of the wife.  Accordingly, the only recurring liabilities are outgoings on the former matrimonial home, credit card payments and living expenses.

Approach To These Proceedings

1. In Davis & Davis (1976) FLC 90-062 the Full Court (Evatt CJ, Pawley & Ellis JJ) said (at page 75,309):

   The criteria for the exercise of the power under sec. 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.

2. In Fedele & Fedele (1986) FLC 91-744 the Full Court (Fogarty, Murray and Nygh JJ) stated clearly that the considerations to which the court referred in Davis & Davis are not exhaustive and each case must be determined ultimately on its own facts.  Their Honours said: 

   There have been numerous reported cases on the application of sec. 114(1), including a number of decisions of the Full Court.  Many of them lay down useful guidelines to assist trial judges in the exercise of the discretion under sec. 114(1), but they should be treated as guidelines only to assist in the proper exercise of the important discretion given under that section.  They should not be seen as laying down a fixed list of criteria which must be established for the application to be successful.  A judge is required to exercise his own discretion in the matter, but no doubt in the proper exercise of that discretion he will be guided by assistance given to him in authoritative judgments in this Court.

Consideration and Conclusion

1. In my view, the needs of the children weigh heavily in the determination of these proceedings.  G demonstrated in the clearest possible terms that she found the situation in the former matrimonial home to be intolerable, when she left the premises of her own accord on 12 November 2013.  Both of the girls approached school counsellor Ms A for help on 25 November 2013, expressing concerns for their own and the wife’s safety.  It seems reasonable to assume that neither G nor E will return to live at the former matrimonial home while ever the husband occupies the property.

2. I consider that G has a particular need for stability and emotional security as she embarks upon Year 12 of her high school education.  Her Higher School Certificate results have significant potential for far-reaching effects on her adult life.  In my view, G deserves the fullest opportunity for success in these important exams and assessments.  I have no doubt that she would benefit greatly from a return to her familiar environment while she undergoes this stressful process.

3. I also consider that the wife should be able to continue to conduct her healthcare practice from the home.  In this regard it is relevant that the area where she sees her clients is on the ground floor of the premises.  The husband would occupy this section of the property on his alternative proposal.

4. It seems to me that the children will be disadvantaged if they live again with both parents under one roof.  I am unpersuaded that their emotional stability could be assured in those circumstances, even if the parents occupy separate floors and the internal staircase is closed off to the satisfaction of the wife.  Inter alia, the parties and children are likely to encounter each other as they enter and leave the property.  The wife and children will always be conscious that the husband lives downstairs. 

5. It is true that an order for exclusive occupation in favour of the wife will create some hardship for the husband.  He will be required to finance independent accommodation but he has secure employment and liquid funds of some $45,000.  I am conscious that “it is a very serious matter to turn a man out of his home”, to adopt the words of Murray J in O’Dea & O’Dea (1980) FLC 90-896.

6. It is equally true that the wife could rent alternative accommodation for herself and the children.  Her income and liquid assets would enable her to do so, pending a final property settlement.  On the other hand, the wife will be required to accommodate herself and the two children whereas the husband has only to arrange alternative accommodation for himself.  In the present circumstances, there is no realistic prospect at all that the children would live with the husband.  Accordingly, it falls to the wife to arrange for their accommodation.

7. On balance it seems to me that, on an interim basis, the wife and children should have the benefit of occupation of the former matrimonial home.  I am conscious that G and E have both told independent people, being school counsellors, that they were fearful for the safety of themselves and the wife if they continued to live with the husband.   On the evidence available to me, it was largely the conduct of the husband which caused the wife and the children to vacate the former matrimonial home. 

8. I was informed by counsel for the husband that he is likely to be engaged in fighting bushfires throughout the month of February 2014 and, accordingly, he has very limited opportunity to find suitable alternative accommodation.  I will allow the husband three weeks to vacate the premises.

9. I do not intend to make any parenting orders, as the children are 17 and 14 years of age.  They will determine what time and communication, if any, they have with the husband.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 31 January 2014.

Associate:     

Date:              January 2014