Sebastian and Sebastian

[2011] FamCA 821

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN [2011] FamCA 821

FAMILY LAW – PROPERTY – Interim orders – Insurance and repair of home – Orders requiring parties to jointly act in their own best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 19 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 19 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Oliver

SOLICITOR FOR THE RESPONDENT: Moores Legal

ORDERS

IT IS ORDERED:

1. THAT until further order the wife continue to enjoy the sole use and occupation of the former matrimonial home situate at … in the State of Victoria.

2. THAT the husband for and on behalf of the wife and himself forthwith do all acts and things and sign all documents and give all necessary instructions as are required to accept the updated quotation of Mr I dated 29 September 2011 and instruct him to undertake the necessary repairs to the former matrimonial home at his earliest opportunity.

3. THAT the husband and wife share equally the actual costs of Mr I’s works.

4. THAT the husband for and on behalf of himself and the wife immediately do all acts and things and make all proper inquiries to obtain structural, content and public indemnity insurance for the former matrimonial home and the cost of such insurance on a yearly basis is to be equally shared by the parties.

5. THAT otherwise the wife’s Application in a Case filed 18 October 2011 be dismissed.

6. THAT the Orders sought by the husband in his Response to the Application in a Case filed this day be likewise dismissed.

7. THAT both parties, and in particular the wife as the occupier of the former matrimonial home do all acts and things and in all ways co-operate with any insurance assessor, trades person or other requirement to facilitate either the property repairs or the obtaining of the insurance.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the legal practitioners for parties.

9. THAT there be no order as to costs.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and Solicitor appearing as Counsel for the husband.

   IT IS NOTED

A.THAT Order 1 is made without any finding or admission of liability against the husband and it has been pronounced primarily to continue the existing residential arrangement of the parties.

IT IS NOTED that publication of this judgment under the pseudonym  Sebastian & Sebastian is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6522 of 2010

Ms Sebastian

Applicant

And

Mr Sebastian

Respondent

REASONS FOR JUDGMENT

1. The matter comes before me today by way of an urgent listing upon the application made by the wife’s solicitors on her instructions.  On 18 October 2011, the wife filed an application in a case seeking abridgment of time and an order for the sole use and occupation of the former matrimonial home in which she resides.  As an ancillary order she sought costs of and associated with that application.

2. The wife’s detailed affidavit was sworn 17 October and filed the following day.  I have read that affidavit and its substantial annexures thereto.  By leave of the Court this day the husband, through his solicitor, Mr Oliver, has sought leave to file a response.  I have granted that leave without objection.  The husband seeks an order requiring the wife to sign a deed of indemnity in the form presented to the Court and additionally an order for building, content and public indemnity insurance to be taken out over former matrimonial home.

3. Likewise, he seeks an ancillary costs cost in the proceedings.  The husband’s response is supported by his affidavit, likewise filed by leave this day.  I have read that affidavit and its various exhibits, including the report of Mr O dated 5 April 2011.  This matter is in the list of cases awaiting hearing both on children’s and on property and financial issues.

4. It had the opportunity for a three-day hearing in October, but was not, at that time, ready to proceed and as the matters currently stands, all extant proceedings have been adjourned for listing and case management before me in early December. 

5. The basic factual issue before the Court is that the husband is the sole owner of the former matrimonial home.  The wife has been in occupation thereof for a lengthy period of time, post separation.

6. It is not suggested that the wife should not live in that home pending the outcome of the section 79 property proceedings.  The husband has alternate accommodation.  The former matrimonial home was damaged in the violent thunderstorm that hit Melbourne on Saturday, 6 March 2010.  Subsequently, it has been further damaged by water as a result of a severe rainstorm on 4 February 2011.

7. The property has been uninsured since 29 August of this year and there is a necessity for a proper level of insurance, both as to structure and contents and otherwise as the parties may determine to be immediately obtained.  I have read each of the affidavits and the various accounts from both parties as to obtaining quotations for repair, as to the delays, as to the frustrations each have had with the other and as to the tone of the voluminous correspondence between solicitors all on this single issue.

8. There is a simple reality.  The wife continues to live in this property until further order is made.  She does so on the basis of having a reasonable lifestyle and quiet enjoyment of the property.  She does so with an obligation to maintain the property at a reasonable and proper level, though I do not intend to make any detailed orders in that regard this day.

9. Whether or not the current insurance company as of August this year will continue reinsurance is a matter for the parties to ascertain.  Clearly, any alternate cover can only be undertaken on the basis of accurate and complete disclosures and the providing of accurate and informed information.  That means that the work by way of repair must be undertaken forthwith.

10. The Court was today presented with a quotation in exhibit “W1” from Mr I.  The information before the Court suggests that he is a plumber and he was nominated as a person appropriate to undertake the work by the past insurance company.  He had earlier provided a quotation and now there is an updated quotation from him in the sum of $9,865, inclusive of GST.  That quotation is before the Court as part of exhibit “W1”.

11. Of some significance is the fact that the wife has instructed her Counsel that the plumber is available later this week or early next week to undertake and to complete the job within a week.  That is a matter of importance and the Court is accepting of the wife’s assurance in that regard.

12. I require the parties to engage Mr I immediately and for his work to be all undertaken forthwith on the basis of the parties equally sharing that cost.  As to the insurance, because the property is in the husband’s sole name, he on behalf of his wife and himself will as soon as practicable obtain structural, content and public liability insurance.

13. That can be on the basis of the shared costs of premiums. 

14. An issue before me was the husband’s application to compel the wife to sign a form of indemnity.  That document is before the Court and I have read the document.  I have raised this matter in discussion with Mr Oliver as solicitor for the husband.

15. I simply am not going to require that form of document in that form or in any other form to be signed by the wife.  These matters are before the Court.  The whole question of contribution made to or on behalf of that property, both acquisition and particularly conservation and improvement are matters identified in section 79(4) of the Act and no doubt there will be evidence led in the trial on those issues.

16. There are other somewhat contentious issues raised in the affidavit where each party has endeavoured to provide commentary on the conduct or behaviour or actions of the other party or draw inferences therefrom.  I refrain from any such finding or, indeed, any such investigation at this stage and in these interlocutory proceedings.  I will have the transcript of these short reasons for judgment delivered ex tempore transcribed, placed upon the Court file and made available to both the parties.  I will prepare my orders.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 19 October 2011.

Associate: 

Date:  19 October 2011