Sidbury and Sidbury

FAMILY COURT OF AUSTRALIA

SIDBURY & SIDBURY

[2011] FamCA 896

FAMILY LAW – PROPERTY – Interim spouse maintenance – Exclusive occupation of former matrimonial home – Interim payment of outgoings on the former matrimonial home - Sale of the former matrimonial home

Family Law Act 1975(Cth)
Family Law Rules 2004 (Cth)

Tansell and Tansell (1977) FLC 90-307
Davis & Davis (1976) FLC 90–062
O'Dea & O’Dea (1980) FLC 90–896
Fedele & Fedele (1986) 10 Fam LR 1069

APPLICANT:

Ms Sidbury

RESPONDENT:

Mr Sidbury

FILE NUMBER:

SYC

1248

2011

DATE DELIVERED:

24 November 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

21 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cummings

SOLICITOR FOR THE APPLICANT:

Uther Webster & Evans

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Paul & Paul Lawyers

Orders

Pending further order, the husband is to pay the wife interim spouse maintenance in the sum of $1,175 per week. The first payment is to be made within 24 hours of the date of this order.
The wife’s application for exclusive occupation of the property B Street, Suburb C is dismissed.
The Court notes that the order for interim spouse maintenance made herein is made on the basis that the husband continues to make a payment of $375 per week, to the wife, for the support of the children of the marriage (including adult children) and continues to meet all of the outgoings on the former matrimonial home which he has meet since the separation.
Pending further order, the parties do all acts and things and sign all document necessary to affect a sale of the former matrimonial home at B Street, Suburb C in the state of New South Wales, being the whole of the land in folio identifier … for the best price reasonably obtainable.
The manner in which the property is to be marketed, list prices, agents to market the property and auctioneers to auction the property are to be as agreed to between the parties.
Upon the sale of the property being affected, the parties are to cause the whole of the proceeds to be deposited into an interest bearing deposit account in the joint names of the parties, with neither party to remove any funds from the account without the written approval of the other, pending further order of the Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

Ms Sidbury

Applicant

And

Mr Sidbury

Respondent

REASONS FOR JUDGMENT

The application before the Court is that of the Ms Sidbury (“the wife”) and is found on page 5 of her initiating application filed on 27 July 2011. The wife’s counsel, Mr Cummings, advised the Court that she sought orders pursuant to paragraphs 1, 3 and 4 of that interim application.
By his response to initiating application filed on 23 September 2011 Mr Sidbury (“the husband”) sought the dismissal of the wife’s interim applications and further sought orders for the sale of the property at B Street, Suburb C (“the former matrimonial home”).
The issues before the Court for determination therefore fall into the following categories:
a)An interim spouse maintenance application by the wife for $2,000 per week;
b)An interim exclusive occupation application sought by the wife in respect of the former matrimonial home;
c)An interim order requiring the husband to meet the outgoings on the former matrimonial home including rates and insurances; and
d)An interim order requiring the sale of the matrimonial home.
In the final property orders sought by the wife, she seeks, inter alia, the sale of the former matrimonial home and the distribution of the net sale proceeds between the parties. In the husband’s response he sets out final orders which also include an order for the sale of the former matrimonial home. The parties are therefore ad idem that by way of final property orders each seeks the sale of that property. However, in the wife’s submissions she urges against an order for sale being made now.

Background Facts

It appears common ground that the parties commenced cohabitation in about 1990 and were married in 1991. Although the affidavit material differs in respect of separation dates and the date of divorce it appears that the husband’s affidavit reciting divorce on 15 July 2008 was wrong and the Court file discloses that in fact a decree nisi was granted on 8 May 2011. The application upon which the divorce was granted was a joint application which named the date of separation as December 2007, albeit that the parties continued to reside under the one roof thereafter and still do today.
There are three children of the marriage, Ms D aged 19, Ms E aged 18 and F aged 16. All three children reside with the parties in the former matrimonial home.
Throughout the marriage the husband has been the principal breadwinner and at the time of separation the parties incomes were derived from the Sidbury Family Trust which operated a business titled G Pty Ltd. That business was established in about 1995 or 1996.
In the latter years the wife has been able to obtain some part time employment and she advises the Court that she currently works 20 hours per week earning $420 per week. She currently has $27,000 in bank accounts.
In the husband’s financial statement filed on 23 September 2011 and sworn that same day he asserted his income to be $6,811.70 per week. He claimed expenditure of $7,910 per week.
It appears that the husband has control of the Sidbury Family Trust. In prior financial years the trust has distributed incomes to both the husband and the wife. Exhibit W1 contains a copy of the husband’s individual tax return for the year ended 30 June 2010. In that year the husband’s taxable income was $913,545. That equates to $17, 568 per week.
The parties have jointly instructed a single expert Mr H to value the Sidbury Family Trust. A draft valuation provided to the parties in September 2011 by Mr H contains, inter alia, predicted net profit before tax for the trust for the year ended 30 June 2011 of $877,444. That figure also has contained within it adjustments to the salaries and commissions figure in the balance sheet for the trust so as to provide a remuneration package to the husband of $150,000 per year.
In the husband’s tax return for the year ended 2010 he discloses that the wife’s income for the same period was $104,928. Although part of that income (approximately $12,000 to $20,000) may have come from the wife’s work as a casual shop assistant, it appears probable that the balance came from assets of the trust. Part of the husband’s income for the year ended 30 June 2010 consisted of a dividend from G Pty Ltd of $604,339. He also received franked credits of $258,428 from the same source.
The Court was therefore presented with a conflict between the evidence obtained from the documents above referred to and the evidence contained in the husband’s financial statement claiming a weekly income of $6,811. In such circumstances it is incumbent upon the husband to explain why there has been such a significant change in his income between the year ended 30 June 2010 and the current financial year. The husband sought to do that in an affidavit he filed in Court on 21 November 2011, the day of the hearing.
The wife’s application was filed on 27 July 2011and her evidence in support was filed the same day. The husband’s response and financial statement was filed on 23 September 2011. The Court file shows that when the initiating application was filed by the wife no return date was allocated for the interim application. By correspondence dated 2 August 2011 the applicant was advised by the Court that the interim hearing was listed at 10am on 21 November 2011. At that time, the husband had not filed a response, however, he did so on the return date of the wife’s initiating application namely, 23 September 2011.
On 15 November 2011 the husband filed an affidavit in support of his interim application. That affidavit clearly answers the wife’s application for interim orders. The Court must infer, at the very least, that the husband knew the matter was listed for hearing on 21 November 2011, on the day he signed his affidavit.
Notwithstanding the husband filing an affidavit on 15 November 2011, he was granted leave to file an affidavit sworn on 21 November 2011. The filing of the affidavit itself was not objected to by the wife although it clearly could have been, having regard to the Family Law Rules 2004 (Cth)(“the Rules”) and in particular rule 15.05 and rule 9.02. It was only paragraphs 5 and 6 of that affidavit which were objected to and which were ultimately not pressed by the husband.
At the conclusion of the hearing on 21 November 2011 judgment was reserved and I informed the parties I proposed to deliver judgment and make orders on Thursday 24 November 2011. On 23 November 2011 the husband applied to me in chambers to re-open his case to tender 5 documents. Those documents are draft tax returns, draft Annual Reports for G Pty Ltd and the Sidbury Family trust and a draft tax return for the husband.
The wife advised the Court that she would not oppose the re-opening for that purpose, on the proviso that she could provide further short written submissions. This was agreed to by the husband. The wife provided her further submissions. I have accepted the further evidence from the husband.
In relation to the additional documents tendered by the husband I note that they are draft documents. No explanation for why the documents are draft rather than final documents signed by the husband is provided.
The husband’s draft 2011 tax return foretells a taxable income of $770,309. That equates to a weekly income of $14,813. This figure is significantly greater than the $6,811.70 sum specified in his financial statement sworn 23 September 2011.

Interim Spouse Maintenance

The wife seeks an order for spouse maintenance in the sum of $2,000 per week, pending further order of the Court. Both parties addressed the provisions of section 72 of the Family Law Act 1975(Cth) (“the Act”) (which incorporates section 75(2)). Section 72 and 75 of the Act are as follows:

FAMILY LAW ACT 1975 - SECT 72

Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the Court makes an order under this Part for the transfer

FAMILY LAW ACT 1975 - SECT 75

Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74, the Court shall take into account only the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3) In exercising its jurisdiction under section 74, a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4) In this section:

"party" means a party to the marriage concerned.

Having regard to those sections, it is first necessary for the wife to establish that she is unable to support herself adequately.
The wife has part time employment which earns her $420 per week. It was not put by the husband that the wife has a greater capacity to earn income, at this time. However, the husband did attack the wife’s need for a payment of $2,000 per week.
The wife was predominantly a home maker and parent throughout the parties’ lengthy marriage. She set out in her affidavit the history of her contributions as a parent. Since separation she has had only part time employment. That employment ceased in July this year. She has now been able to secure similar employment with better remuneration. As I have said, the husband has not suggested she has any greater capacity to earn an income.
The mathematical basis for the wife’s claim is principally found in her financial statement sworn 14 July 2011 and filed 27 July 2011. Item 9 of that document, which requires a statement of her salary before tax, needs to be amended to $420. The only other income of the wife comes from the husband at the rate $375 per week. There is no evidence as to the source of those funds. In the financial year ended 30 June 2010 the wife received an income from the trust and/or the corporation although none of the monies referred to were received directly by her. The only funds that she received were those provided to her by the husband, apparently sourced from her earnings from the company and/or distributions from the trust.
The sum of $375 per week currently being provided by the husband is a voluntary payment said to be “for the three children and for household expenses such as medical costs, clothing, entertainment, pharmaceutical expenses and so on.” (see note 2 to the wife’s financial statement).
Item 17 in the wife’s financial statement divulges that the child Ms D has an income of $120 per week and the child F has an income of $90 per week. The wife does not know of any income which the child Ms E might receive.
At item 33 the wife claims the sum of $2,865 for total expenditure. The husband submits that figure is inappropriate to take into account in determining the needs of the wife. He says that when regard is taken to part N of the wife’s financial statement, her requirements are listed at $815 per week. He submits this is the only amount which the Court can take into account. The basis of that submission is that the expenses for the children are matters which relate to child support and can not be taken into account in the assessment of spouse maintenance.
The husband’s submission has some merit, in so far as it would relate to one of the parties three children only. The child F is 16 years of age and the two children Ms D and Ms E are now over the age of 18. There is no application before the Court for adult child maintenance and it appears from the husband’s financial statement that both parties contribute to the cost of the children, be they adults or under 18 years of age. The husband has included the cost of the support of the children as part of his expenses in his financial statement, in particular at items 34 and 33. He also claims at item 31 to be paying $375 per week (for the children of the marriage).
In my view, the contributions made by the wife to the support of the two adult children are matters which can be taken into account by the Court pursuant to section 75(2)(e) which sets out “the responsibilities of either party to support any other person.”
The proceedings are interim proceedings which have been conducted on the papers, without the benefit of cross examination, notwithstanding an application by the wife to cross examine the husband. Therefore, it is reasonable for the Court to conclude, that in Part N of the wife’s financial statement, in the table under the heading “For Children”, the expenses should be seen to cover each of the children (including F) equally. Thus $970 per week should be seen as relating to the two adult children. In assessing the wife’s need for maintenance the Court should properly take into account the income earned by the two adult children. I have referred to the information disclosed in the wife’s financial statement in relation to the income of the two adult children. However, I note in the similar position in the husband’s financial statement he says he does not know the income of his daughter Ms D and he says the income of his daughter Ms E is “nil.”
Having regard to the expenses of the wife I find that her total reasonable expenses for herself and the adult children are $2,180 per week.
The husband says that if I take into account the needs of the adult children then I need to deduct the income they earn from those needs. Whilst I do not consider this is a reasonable submission, given that the adult children have very low incomes and there has not been any indication in the material filed by either the husband or the wife that as part of the normal operation of this family either of these adult children have been required to contribute that income towards the household, I will nonetheless take that into account. Therefore, I find that the needs of the wife to support herself and the adult children total $1,970.

On the assumption that the husband continues to pay $375 per week, as he asserts in his evidence, then the wife has available to her $795 per week by way of income. The quantum of the wife’s expenses is also based on an assumption that the husband continues to meet the expenses he has associated with the former matrimonial home since the date of separation. There is no evidence from the husband which would indicate that he intends to depart from that arrangement.
Assuming all those matters are correct, the wife has established a need for $1,175 per week by way of maintenance from the husband.
I now turn to consider the capacity of the husband to pay maintenance. The husband’s primary evidence in relation to his financial circumstances is contained in his statement of financial circumstances sworn and filed on 23 September 2011. In relation to that statement the quantum of his income and a number of his expenses are the subject of submission by the wife.
The first item which was addressed is contained in item 30 of the husband’s financial statement. He claims to make a payment of $700 per week in relation to the wife’s credit card liabilities. It is submitted that figure is wrong and in his affidavit he asserts a contribution of $700 per month towards the wife’s credit cards.
In paragraph 7 of his affidavit filed 21 November 2011 the husband says that the statement attached to his affidavit illustrates monthly payments towards the wife’s credit card of $700. Notwithstanding that statement at paragraph 11 of the same affidavit, he says that the total payment for credit cards of the wife’s in respect of the period referred to in annexure “B1” to his affidavit is $2,100. The period encompassed in exhibit “B1” is from 1 July 2011 to 31 October 2011. That is a total of 17 weeks. That represents $123 per week. An adjustment should accordingly be made to the husband’s financial statement.
The wife further submits that at paragraph 34 of the husband’s financial he claims a further figure of $161.50 per week as credit card payments for the wife and children. There is no suggestion in the evidence before the Court that any of the children had or have credit cards which the husband pays. The only credit card reference is that made in respect of the wife. The wife submits therefore that $161.50 should be deducted from item 34. In addition, the child Ms E has now completed school and therefore the school fees claimed for F and Ms E should be halved from $654 to $327 per week. After those two adjustments the total expenditure at item 34 is reduced to $920 per week. With those adjustments the husband’s expenses become $6,795 per week.
The wife submits that the statement by the husband in his financial statement that his weekly income should be seen as $6,811.87 should not be accepted in the face of contradicting evidence. The wife submits the evidence discloses the husband’s income for the year ended 30 June 2010 was $913,545. That income was derived in circumstances where the income earning assets of the parties also paid the wife an income of about $80,000 to $100,000. Further, the wife points to the draft valuation of the income earning entities of the parties as contained in exhibit H1. The figures for the projected year 30 June 2011 estimate an income available of over $1 million. Whereas the report writer has not been provided with signed financial statements for the year ended 30 June 2011 he has been provided with trial balance sheets for that year and it is on that basis that the calculation for the 2011 year has been included in the report.
In the face of the above evidence relating to the husband’s income and/or benefits available from the family enterprise, it would be incumbent upon the husband to produce clear evidence of an income said to be significantly less than that referred to in the abovementioned documents. The income which the husband contends for in his financial statement annualises at $354,208. That represents almost a two thirds reduction of his income as recorded in his 2010 income tax return and as calculated by the single expert in September of this year.
Turning then to the evidence of the husband relating to his income, contained in his affidavits of 15 and 21 November 2011, the following can be seen. In paragraph 47 of his affidavit filed 15 November 2011 the husband sets out a resume of what appears in his financial statement. Part of that table refers to an annexure marked “A” and dated 13 October 2011 which confirms an instalment arrangement for the husband to make payments in relation to his personal taxation in the sum of $3,000 per month. No explanation is given by the husband as to how he fell into arrears in the payment of his personal income tax. He also says that G Pty Ltd, has an outstanding liability of $142,251 to the Australian Tax Office as at 24 September 2011.
In that same table the following words appear, “I am prepared to ensure [Ms Sidbury] is continued to be paid this amount moving forward to assist in support of the children, $375.” In relation to the tax commitment of the husband to the Australian Tax Office, it would appear to amount to about $692 per week. I note in husband’s financial statement the tax payment attributed to him in item 19 is $173. Assuming that figure relates to the salary paid to the husband by the corporation of $961.50 per week that sum still appears to be less than might reasonably be anticipated as an incidence of taxation.
The drawings from G Pty Ltd appear to have significant franking credits attached to them. I will take into account in determining the husband’s ability to pay, the fact that his taxation liability is probably closer to $800 per week than $173 as stated in his financial statement.
There is otherwise nothing further in the husband’s affidavit filed on 15 November 2011 to explain the dramatic reduction in availability to him of income from the income earning enterprises of the parties.
Perhaps alerted to this inadequacy in his earlier material, the husband, as I have said earlier, filed in Court on 21 November 2011, the date of the hearing, a further affidavit. I know turn to consider the evidence contained in that document so far as it relates to the husband’s income earning capacity.
In paragraph 7 of the husband’s affidavit filed on 21 November 2011 the husband attaches a ledger which sets out dividend payments made in this financial year to, or on behalf of, the husband. The total payment made to the husband for the four month period is $120,289.36. As against those payments the sum of $2,410.65 has been credited, being repayment from the trust fund. If those payments continued it would give rise to an annualised payment of approximately $360,000 to the husband. There is no evidence to establish the ability of the company to have paid further dividends to the husband during that period. However, the husband’s financial statement discloses that he receives a wage from the company (quite distinct from the payments referred to in the annexure to the husband’s affidavit now under consideration), of $961.50. That then lifts the annualised payment to the husband of $409,998 or thereabouts.
Annexure B1 to the husband’s affidavit is titled “Branch TLS Suburb J – Corporate Division – Department; Administration Overheads.” There is no similar statement in respect of the Suburb I shop. Yet attachment B2 contains schedules which disclose payments made for the benefit of the husband as against both the Suburb I and the Suburb J shop. No explanation for the differentiation between the accounts published for the current financial year and those published and attached to the husband’s affidavit for the year ended 30 June 2011 is provided.
Annexure B2, which is a statement of ledgers in respect of both Suburb I and Suburb J shops, shows payments to the husband totally $545,296 after credits of $14,197 had been added. In addition to that sum the husband drew a wage, assuming it to be the same as disclosed in his financial statement, of approximately $50,000 making his total drawings for the year $595, 296, which equates to $11,448 per week.
As I have said earlier, the husband has now put before the Court a draft income tax return for the 2011 year which discloses a taxable income of $770,309 ($14,813 per week before tax).
No explanation is provided by the husband as to why he should anticipate receiving an income less than that in the current financial year.
In the balance of that affidavit there is no evidence to support the husband’s contention that his income for the year ended 30 June 2012 will be less than that received in the year ended 30 June 2010 or that which is capable of being reasonably calculated from the information provide by the husband for the year ended 30 June 2011.
In all the circumstances, I am satisfied that the husband has an available income greater than that stated by him and an income which is sufficient to meet an order for payment of spouse maintenance to the wife in the sum of $1,175. Such payment would be in addition to the expenses currently being paid by the husband in respect of the property occupied by the parties and their children (albeit that two are adults). This is in addition to the undertaking by the husband to continue to pay $375 per week by way of cash payment to the wife attributable to the children’s costs. I propose therefore to make an order for the husband to pay spouse maintenance in the sum of $1,175 per week, pending further order.

Exclusive Occupation of the Former Matrimonial Home

The wife seeks an order for exclusive occupation of the former matrimonial home.

Relevant Law

Section 114(1) of the Act is as follows:

FAMILY LAW ACT 1975 - SECT 114

Injunctions
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.

Section 114(1) Injunction relating to occupancy of the matrimonial home

Section 114(1)(b) and (f) are the provisions which empower the Court to require one party to a marriage to vacate the matrimonial home in favour of the other.
In making a determination in relation to occupancy of the matrimonial home, the Court is required to address two basic questions:
a)Whether the property should be occupied by one party only; and
b)Which party should vacate the property and which party should have exclusive occupation of the property?
I note that the making of such an injunction does not in any way affect the property interests of the parties. Such an injunction is held to be temporary in nature and applicable only to the person in question. The Full Court (Evatt CJ, Demack & Fogarty JJ) said in Tansell and Tansell (1977) FLC 90-307 at page 76,634:
What... must be clearly kept in mind is that this power under sec 114(1), both as to occupation and non-disposal of property, is a power which is both temporary and personal. It cannot be used to affect in a permanent way interests in property and it is a power which is directed to a spouse personally, prohibiting or restraining him or her from certain actions
In Davis & Davis (1976) FLC 90–062 Evatt CJ, Pawley and Ellis JJ set out the following, which has been used as a guideline in subsequent judgments in this area:
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.
This list is not exhaustive, nor are all the considerations essential considerations. The decision to turn a party to a marriage out of their own house is considered to be a serious matter (per O'Dea & O’Dea (1980) FLC 90–896) and therefore the Court must not decide the matter solely on the balance of convenience.
The criteria and matters to take into consideration have been restated in a number of cased dealing with this subject, all of which have provided a variation of the principles set out in Davis as they addressed the particular facts of the case. In Fedele & Fedele (1986) 10 Fam LR 1069, Fogarty, Murray and Nygh JJ summarised the plethora of authorities on the area as follows:
That view is emphasised by the circumstance that immediately after reference to Rowe's case, the Full Court in the 1983 Davis case referred to the unreported judgment of Lindenmayer J in Price (12 July 1982) where, after referring to a number of the relevant authorities, Lindenmayer J said: “All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”[…]
There have been numerous reported cases on the application of s 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 s 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 authorative judgments in this Court.
Having considered the decided cases as set out above I do not consider the evidence relied upon by the wife as sufficient to justify the order sought.
The wife’s evidence to support her application is contained in paragraph 23 of her affidavit filed 27 July 2011. Within paragraph 23 there is one sentence to support the application which is as follows “I feel intimidated by [Mr Sidbury], am walking on egg shells when he is in the home, and I know from observations of the girls that this situation is affecting them adversely.”
Elsewhere in her affidavit the wife says she is unable to afford to live anywhere else and therefore can not leave the home at this time. The wife also says that the husband does not spend every night at the home and she is unaware of when he will or will not be there.
As I have said, the evidence of the wife does not suffice to satisfy the Court it should exercise the discretion to grant the injunction sought.

Payment of Outgoings on the Former Matrimonial Home

The wife seeks an order requiring that the husband meet all mortgage instalments, rates and insurances in respect of the former matrimonial home. The husband has been meeting all those payments and there is no suggestion that he would not in the future. To the contrary, the husband makes it clear that he will continue to make those payments. Were it not for the husband’s position in relation to the future payments and the Court’s certainty that he has undertaken to meet those payments, the Court would be moved to make the order sought by the wife.

Sale of the Former Matrimonial Home

By way of final orders each of the parties seeks the sale of the former matrimonial home. The husband seeks that the property be sold forthwith with a view to completion of the sale in about February next year. The wife is seeking a postponement of the sale until the parties are in a position to settle all of their property matters.
The former matrimonial home is occupied not only by the parties but also by their children. The middle child will complete her school education this year. The youngest child is 16 years of age and would in the normal process be expected to sit for her high school certificate in 2012 or possibly 2013.
In my view, the wife has not advanced any compelling reason to postpone the sale of the former matrimonial home. Once there is an exchange of contracts in respect of the property then, in the absence of agreement between the parties as to funds being available to the wife to relocate herself on completion of the sale of the property, an application may be made to the Court.
So far as the income earning assets are concerned, the parties expect to have a final valuation from the single expert within the next 7 to 14 days and that should then enable them to have a proper discussion in respect of settlement of all outstanding property matters. On the face of it, the case does not appear to be one which is complicated and should pose no difficulty for the parties’ legal representatives in advising them on a proper basis for settlement. Accordingly, I propose to order that the former matrimonial home be sold as sought by the husband.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 24 November 2011

[2011] FamCA 896

Key Legal Topics

Areas of Law

Family Law