Selwood and Selwood (No 3)

[2013] FamCA 289

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD (NO. 3) [2013] FamCA 289

FAMILY LAW – PROPERTY – application by the wife seeking orders that the husband vacate the former matrimonial home – consideration of s 114 of the Family Law Act 1975 (Cth) – application dismissed.

Family Law Act 1975 (Cth) s 114

S & S [2002] FamCA 59

APPLICANT: Ms Selwood

RESPONDENT: Mr Selwood

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 22 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 22 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rowbottom

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Supljeglav

SOLICITOR FOR THE RESPONDENT: DS Family Law

Orders

1. The wife’s Application in a Case filed on 4 February 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood (No 3) 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 DARWIN

FILE NUMBER:  DNC 359 of 2010

Ms Selwood

Applicant

And

Mr Selwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife is seeking an order that the husband vacate the former matrimonial home and that she have thereafter sole use and occupation of that property at O Street on the basis that she would collect the rent from the other rented properties and pay the rent towards the outgoings and mortgage of the former matrimonial home.  The husband opposed this application.

2. The interim application needs to be seen in the current context of the history of the relationship of the parties in these proceedings.  Final separation between the parties occurred in June 2010.  The wife has resided in various places, including rental accommodation since then.  The husband has remained in the former matrimonial home. 

3. There were consent interim orders made in September 2010 which provided for the husband to stay in the former matrimonial home.  There have also been interim orders made, including interim distribution of funds which the wife asserts she has used to pay her rent for her rental properties.

4. There are issues set out in the affidavit material about the husband declaring the full amount of rent collected from rental properties, explaining the use of that rental property and the use of the National Australia Bank (“NAB”) account.  There are also some issues in dispute about those payments and when and how they were received which cannot be determined on an interim basis.  The husband maintains in his affidavit material that the NAB mortgage account has been paid up to date and is now in advance.  There has been an agreement reached that the E Street property be sold and some monies from the net proceeds be used to reduce the NAB mortgage.

5. The children have been residing with both parties and spending significant time with each of them since the separation.  B is aged 13 and C aged 11.  B has recently undergone significant surgery.  The husband maintains that it would be too disruptive for the children if he moved and the wife were to take up residence with the children in the former matrimonial home. 

6. The Family Law Act 1975 (Cth) sets out the discretion the Court has to make this type of injunction in section 114. Counsel referred me to the decision of Scholtz & Scholtz, otherwise known as S & S [2002] FamCA 59, a decision of the Full Court.

7. That emphasised that the judicial discretion must not be exercised lightly.  The Court must take into account the balance of the hardship, including the needs of the parties and the children.  The authorities also establish that the onus is on the party bringing the proceedings to establish that there is a necessary basis for the Court to exercise its judicial discretion.

8. The history of the matter indicates the children have been residing for a considerable part of the time with the mother and moving into various rental properties whilst the father has continued to remain in the former matrimonial home.  I am not satisfied on the current evidence before me that the mother’s finances would prevent her from maintaining or obtaining appropriate accommodation, although there might be issues to be determined about the actual cost and convenience of that type of accommodation.

9. The father’s case is that he has maintained the property and the mortgage and he maintains that the care of the children and in particular B would be disrupted if he was required to move. 

10. On an interim basis and balancing the factors that are not in dispute, which are a limited number, I am not able to find that the wife has established on the necessary balance of probabilities that it is proper, reasonable and just in these interim circumstances to make the order requiring the husband to vacate the former matrimonial home.

11. The other matters in the application in a case brought by the wife in February this year have already been dealt with save and except as to the issue of costs.  The application is therefore dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 April 2013.

Associate: 

Date:  2 May 2013