Sharp & Sharp
[2022] FedCFamC1F 119
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sharp & Sharp [2022] FedCFamC1F 119
File number(s): ADC 1710 of 2021 Judgment of: BERMAN J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW – INJUNCTIONS – Sole use and occupation – Where the parties have been living under the same roof since separation – Where the applicant seeks sole use and occupation – Where the respondent opposes the application – Where adult children are also present in the property – Where the relationship between the adult children and the respondent is fractured – Where the property is registered in the names of the respondent and his father – Where grounds do not exist for the exercise of discretion to make an order for sole use and occupation – Where the parties should share equally in all liabilities and outgoings pertaining to the property. Legislation: Family Law Act 1975 (Cth) ss 114(1) Cases cited: Davis & Davis (1976) FLC 90-062
O’Dea & O’Dea (1980) FLC 90-896
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 24 February 2022 Place: Adelaide Counsel for the Applicant: Mr Dillon Solicitor for the Applicant: ASW Lawyers Pty Ltd Counsel for the Respondent: Ms James Solicitor for the Respondent: Lindbloms Lawyers Counsel for the Respondents: Ms Read Solicitor for the Respondents: Annells Lawyers ORDERS
ADC 1710 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHARP
Applicant
AND: MR SHARP
Respondent
MR HARNELL AND MS B SHARP
Second Respondents
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS:
1.That the Application in a Proceeding filed 2 December 2021 seeking sole use and occupation of the property at F Street C City, South Australia (“the F Street property”) be dismissed.
2.That for so long as the respondent resides at the F Street property he shall contribute equally to all outgoings including but not limited to electricity, water rates, council rates, emergency services levy, home and contents insurance, lawn mowing and garden maintenance bills.
3.That should either the applicant or the respondent vacate the F Street property then the remaining party shall be responsible for all outgoings in relation to the F Street property.
4.That the matter be listed for a first day hearing at 9.15 am on 4 April 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharp & Sharp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Sharp (“the applicant”) and Mr Sharp (“the respondent”) commenced a relationship in or about 1991 and according to the applicant, commenced cohabitation in 1994 and married in 1995.
The parties separated on 21 October 2019 and a divorce order was made on 11 February 2021.
There are four adult children of the marriage. Ms M, Ms K and Ms L, the adult daughters of the parties have sided with the applicant and maintain a troubled relationship with the respondent. The parties’ son has attempted to remove himself from the dispute.
By Amended Initiating Application filed 26 August 2021, the applicant seeks orders for property settlement on the basis that there be a 60/40 division of non-superannuation matrimonial assets in her favour with each party to retain their separate superannuation interests.
The respondent seeks that the property of the parties be divided as to 60/40 in his favour, subject to “due consideration of the entitlements of the second respondent”.[1]
[1] Response to Initiating Application filed 25 June 2021, page 4, paragraph 4b(1).
Whilst it would appear that the parties are not significantly apart, in the Initiating Application filed 14 April 2021, the applicant named the respondent’s parents Mr Harnell and Ms B Sharp as second respondents and seeks an order in the following terms:
1.That the transfer of properties, Lot … G Street, D Town SA … (CT …) and H Street J Town (CT …) by the first respondent to the second respondents be set aside pursuant to section 106B of the Family Law Act 1975.[2]
[2] Amended Initiating Application filed 26 August 2021, page 2, paragraph 1.
There is no agreement as to the value of the farming lands transferred by the respondent to the second respondents but it is likely that the value is substantial. During the marriage, the parties lived at F Street C City (“the F Street property”). Whilst there is some contention between the parties as to the mechanics of the purchase of the former matrimonial home, the Certificate of Title records that the respondent and his father hold the F Street property as tenants in common. It appears that at the time of purchase, the parties’ circumstances were such that they were not able to secure a housing loan and the purchase of the property was only able to occur with the respondent’s father providing the sum of $500,000 towards the purchase price.
Following separation in October 2019, the parties and at various times one or more of the parties’ adult children have remained living in the F Street property.
By Application in a Proceeding filed 2 December 2021, the applicant seeks that the respondent vacate the F Street property and that thereafter she have sole use and occupation.
In addition, the application seeks that should she be unsuccessful in her application and the respondent chooses to remain living in the F Street property, that the parties share equally in the utility expenses, rates, taxes and household insurance and sharing the cost of garden maintenance. If the applicant’s application is successful or the respondent chooses to vacate the premises, the applicant will assume responsibility for all outgoings.
The application for sole use and occupation is opposed by the respondent.
BACKGROUND
The F Street property was purchased in 2010. As discussed, the purchase price was approximately $700,000 and it is conceded that without the assistance of the respondent’s father by his contribution of $500,000 towards the purchase price, the parties would not have been able to secure a home loan.
The applicant contends that the former property of the parties situate at F Street C City was sold in 2013 and the net sale of proceeds of about $435,000 was retained by the respondent’s father.
In April 2018, the parties purchased a property at P Street E Town (“the E Town property”) for $240,000. The respondent considered that the property represented an investment opportunity however, there is disagreement between the parties as to whether the property is liveable at present.
Exhibit “1” in the proceedings is a valuation report of the E Town property as at 24 January 2022. At this stage, the purpose of the valuation report was to support the applicant’s contention that the property is habitable by reference to the following description:
The subject property is circa 1960, single level, 3 bedroom, 1 bathroom, detached older dwelling on a concrete slab foundation with rendered masonry walls, colorbond roof, 2 car attached carport and 1 car garage (under main roof). The property has fair external condition, fair internal condition and fair presentation. [3]
[3] “Exhibit “1”, page 1.
A more detailed consideration of the valuation report reveals that the E Town property is situated 35 kilometres south west of C City, in an area that has few facilities.
The building, whilst in a fair condition requires remedial works to be undertaken including the repair of substantial salt damp. The valuation report makes no mention of the state of plumbing.
It is likely that the F Street property would represent superior accommodation to that of the E Town property.
Following the parties separation on 21 October 2019, they have remained living separately and apart under the same roof. It is likely that the current arrangements are not to the liking of either of the parties.
The applicant considers that whilst the respondent has a number of options available to him other than his continued residence at the F Street property, her options are more limited. In particular, the applicant considers that her accommodation needs must also cater for the three adult daughters of the parties. The broad overview of the applicant is that the respondent has behaved aggressively in the past and on occasion has been intimidating and verbally and emotionally abusive to the applicant and at times, the adult children.
The police have been involved in 2019 consequent upon a complaint by Ms M.
It is unclear as to whether there was a catalyst for the current application, but by reference to paragraphs 6 to 10 inclusive of the applicant’s affidavit filed 2 December 2021, it is likely that the return of Ms K and Ms L from Victoria to South Australia and the continued occupation of Ms M has heightened the conflict between the parties.
The applicant contends that the adult children have not spoken to the respondent for more than six months and whilst the respondent appears to have minimal involvement with the F Street property, the applicant contends that the atmosphere is uncomfortable and awkward leading to heightened anxiety on the part of the applicant and the adult children.
The applicant accepts that the respondent is only at the house when the applicant is at work and then he only returns to the property to sleep at night.
The applicant considers that the respondent has the advantage of being able to take up residence in the E Town property, to live with his partner or to return to live on his parents’ farming property.
There is some uncertainty as to the future intentions of the applicant in respect of the F Street property. Whilst the orders sought by the applicant seek to retain F Street, she concedes that she has purchased a vacant block of land with the aim of building a home for herself.
At paragraph 36 of the affidavit filed 2 December 2021, the applicant concedes that the F Street property may need to be sold at a point in the future to coincide with the adult children completing their tertiary studies and gaining a level of financial independence.
It is readily apparent that the catalyst for her current application is to maintain what she considers to be the stability of the F Street property for the three adult children.
For his part, the respondent does not deny that the environment within the F Street property is uncomfortable. The respondent asserts that since separation, and in particular the application for dissolution of marriage, he considers that the applicant and the three adult children have waged a campaign comprising vindictive conduct and aggressive behaviour.
The respondent states that he has been sleeping in a room in the F Street property designated as an office. He arrives after 9.30 pm and leaves for work at around 5.30 am. He does not shower nor eat meals in the home and is only there to sleep.
The respondent contends that Ms M has permanent employment and has purchased a block of land with a view to building a house.
Ms K and Ms L are currently on leave from their tertiary studies at a university in N City and would ordinarily not be resident in the F Street property.
The respondent considers that the E Town property is not habitable and accepts that it is not an option for either of them. Again, the respondent regrets the fractured relationship with his daughters and does not seek that they leave the property but rather that they re-establish a civil relationship with him.
LEGAL PRINCIPLES
In Davis & Davis (1976) FLC 90-062 (“Davis”), the Full Court considered that s 114(1) of the Family Law Act 1975 (“the Act”) provides the power to make an injunction in respect of the sole use and occupation of a matrimonial home. At 75,309, the Full Court said as follows:
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.
Consistent with the position adopted by Murray J in O’Dea & O’Dea (1980) FLC 90-896, the Full Court in Davis acknowledged that whilst the application of s 114(1) does not alter or create a proprietary interest in the subject property, nonetheless it is a significant decision to exclude a party from a property in which they have a proprietary interest. In this case, the respondent and his father hold the F Street property as tenants in common.
The second respondents are supportive of the respondent’s opposition to vacating the F Street property. It is a matter of some relevance that the second respondent could pursue a separate cause of action seeking the partition and sale of the property.
Whilst at this stage, it is not possible to determine the extent to which the applicant and respondent may seek to challenge, either in whole or in part, the interest held by the respondent’s father, there is no order in place which would seek to limit or restrain the ability of the respondent’s father from dealing with his one half unfettered interest in the property.
The discretion to be exercised can be informed by a range of potentially relevant considerations including the following:
(a)The ability or opportunity for either of the parties to seek appropriate accommodation;
(b)Financial arrangements between the parties as to the payment of any mortgage loan;
(c)The extent to which the parties are able to appropriately maintain the subject property and the payment of utilities;
(d)Whether the consequence of an order for sole use and occupation may result in a party, in this case the respondent, being required to take up inferior accommodation; and
(e)Issues relating to the conduct of the party and whether there is an aspect of personal protection.
CONCLUSION
The applicant contends that she would experience difficulty if required to find alternate accommodation, exacerbated by intention to provide accommodation for the three adult children as their needs may require from time to time.
The parties are not in agreement as to the extent to which either of them have any obligation to provide suitable accommodation for the adult children other than the genuine intention of the applicant to do so. The involvement of the three adult children in the F Street property is problematic. It appears that whatever discomfort or unpleasantness exists between the parties, the adult children’s inability to reconcile their differences with the respondent appears to be the catalyst for the applicant seeking sole use and occupation of the property.
The reality is that the three adult children are adults, one is in full-time employment and the twin daughters currently attend a university in N City. I consider that the proper application of s 114(1) of the Act is applicable only as between the parties. It is a matter for the adult children as to whether they wish to take up temporary occupation of the F Street property given the current circumstances.
The applicant proposes that the respondent either take up residence in the E Town property, live with his parents on their farm, live with one of his brothers or live temporarily with the parties’ son.
The E Town property is 35 kilometres from C City. I accept that the E Town property would represent inferior accommodation to that of the F Street property, even though the respondent’s involvement with the property is limited to sleeping and the use of a toilet.
It is uncontroversial that the relationship between the parties is poor and not assisted by their continued residence under the same roof however, it cannot be ignored that the respondent has a proprietary interest in the property supported by his father who holds a 50 per cent interest as tenants in common.
There is not currently any apprehended violence order nor is there a non-molestation order. It does not appear that the respondent interferes with the applicant’s primary residence of the F Street property or in respect of her employment.
It is of note that there is some uncertainty on the part of the applicant as to whether she seeks to retain the F Street property as part of her final orders for property settlement or whether her preferred position is to build a house on vacant land purchased by her.
It is a matter for the parties, however whilst not sought, a more appropriate remedy may be by way of application for an order for partial settlement of property thereby enabling either of the parties to be able to rehouse themselves in a manner appropriate to their circumstances.
In circumstances where I do not consider that grounds exist for the exercise of discretion necessary to make an order for sole use and occupation of the F Street property in favour of the applicant, it seems reasonable that if the respondent seeks to retain a connection with the F Street property, he and the applicant should share equally in all liabilities and outgoings pertaining to the property. Whilst it may be that the respondent’s footprint in respect of the F Street property is small, nonetheless it is not practicable to divide up the property and household outgoings other than equally between the parties.
Given the nature of the orders sought by the applicant seeking to set aside the transfer of the respondent’s interest in the D Town and J Town farming properties to the second respondents, there is a level of complexity which would make it unlikely that the parties would be able to readily reach a settlement of property. Given significant expenditure has been incurred in terms of the valuation of real property, it is desirable that the proceedings be listed for hearing with some expedition.
I propose to list the matter for a first day hearing.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 11 March 2022
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