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

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

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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCA 289
Decision Date

CaseChat Overview and Summary

In *Selwood & Selwood (No. 3)*, the wife sought orders from the Family Court of Australia for the husband to vacate the former matrimonial home and for her to have sole use and occupation of the property. The wife proposed to collect rent from other investment properties to cover the outgoings and mortgage of the former matrimonial home. The husband opposed this application.

The court was required to determine whether to exercise its discretion under section 114 of the *Family Law Act 1975* (Cth) to grant the wife's interim application. This involved considering the balance of hardship, the needs of the parties and their children, and whether the wife had discharged the onus of establishing a necessary basis for the court to exercise its discretion. The court also had to consider the existing interim orders, the history of the parties' separation since June 2010, and the impact of any move on the parties' two children, aged 13 and 11, particularly in light of one child's recent surgery.

Justice Dawe noted that the discretion under section 114 is not to be exercised lightly and requires consideration of the authorities, including *Scholtz & Scholtz* [2002] FamCA 59. The court found that while there were financial issues to be determined regarding the wife's accommodation costs, her finances were not demonstrably preventing her from obtaining appropriate accommodation. The husband argued that he had maintained the property and mortgage, and that requiring him to move would disrupt the children's care. Balancing these factors on an interim basis, the court was not satisfied that the wife had established, on the necessary balance of probabilities, that it was proper, reasonable, and just to make the order requiring the husband to vacate.

Consequently, the wife's application was dismissed. The court also noted that other matters raised in the application had been dealt with, with the exception of costs.

Orders