SOLOVIEV & MASUR
[2020] FamCA 398
•22 May 2020
FAMILY COURT OF AUSTRALIA
| SOLOVIEV & MASUR | [2020] FamCA 398 |
| FAMILY LAW – INJUNCTIONS – Sole use and occupation – Whether it is just and convenient to make an order – Where the husband seeks the sole use and occupation of one of the wife’s premises pending final resolution of the proceedings– Where the wife seeks that the husband vacate the premises – Where the wife is the sole registered proprietor of the premises – Where the wife alleges the husband moved into the premises without her knowledge or consent – Where the wife contends the premises is unkempt and that the husband has damaged the property – Where the premises is not habitable – Where a payment is offered by the wife to the husband to assist with alternate accommodation – Orders. FAMILY LAW – PROPERTY – Interim distribution – Whether the circumstances trigger the Court’s power to make an interim property settlement – Where the provisions of section 79 of the Family Law Act 1975 (Cth) need to be applied with limitations – Where the wife seeks to pay the husband a sum by way of partial property settlement – Where the wife seeks that the payment is conditional upon the husband vacating one of the wife’s premises – Where the husband seeks a sum higher than the wife proposes and without vacating the premises - Orders. FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband seeks interim spousal maintenance – Consideration of the husband’s reasonable needs and ability to support himself – Consideration of wife’s capacity to meet a spousal maintenance order – Where the payment of a lump sum offered by the wife and sought by the husband could be achieved by way of spousal maintenance or interim settlement of property – Where no order for spousal maintenance made where partial property settlement orders made. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1965 (Cth) ss 79, 80(1)(h), 114, |
| Brown & Brown (2007) FLC 93-316 |
| APPLICANT: | Ms Soloviev |
| RESPONDENT: | Mr Masur |
| FILE NUMBER: | ADC | 1272 | of | 2018 |
| DATE DELIVERED: | 22 May 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dickson |
| SOLICITOR FOR THE APPLICANT: | David Burrell & Co |
| COUNSEL FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That within twenty eight (28) days of this order the husband do all such things and acts to vacate the property registered in the sole name of the wife situate at B Street, C Town in the State of South Australia (“the C Town property”) and remove all of his chattels and possessions therefrom and deliver up vacant possession to the wife.
That the husband be restrained and an injunction granted restraining him from doing any act which has the effect of devaluing the C Town property or causing damage or destruction to the property or any part of it or its surrounds, or causing or requesting any other person to do so.
That within fourteen (14) days of this order the husband arrange for a third party to collect at the husband’s expense all of the husband’s chattels and possessions from the wife’s residence situate at D Street, Suburb F in the State of South Australia (“the Suburb F property”).
That for the purpose of effecting the removal of the husband’s possessions from the Suburb F property, the husband shall give the wife no less than forty eight (48) hours written notice to the wife’s solicitors of:-
(a)The name and contact number of the person collecting the husband’s possessions;
(b)The date and time of collection.
That in the event that the husband does not remove all of his chattels and possessions as provided for herein and that he shall be in default of his failure to remove by a further seven (7) days THEN the wife shall be entitled to dispose of the husband’s property and possessions as she shall deem appropriate but shall use her best endeavours to cause the sale of any item of property of value with any net proceeds received after proper deduction of expenses in respect of same, to be provided to the husband.
That the wife do pay to the husband (to his nominated bank account) the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000) by way of either partial property settlement or spousal maintenance which sum is to be paid in the following manner:-
(a)The sum of FIVE THOUSAND DOLLARS ($5,000) within seven (7) days of this order;
(b)The sum of TEN THOUSAND DOLLARS ($10,000) forthwith upon the husband advising the wife of the date upon which he intends to vacate the premises; and
(c)The sum of TEN THOUSAND DOLLARS ($10,000) forthwith upon the husband vacating the C Town property.
That in default of the husband failing to vacate the C Town property within the twenty eight (28) days as provided by these orders, the husband shall thereafter cause to be paid to the wife the sum of TWO HUNDRED DOLLARS ($200) per week until such time as he either vacates the C Town property or is removed pursuant to a subsequent order.
That until further order the husband be restrained and an injunction granted restraining him from:-
(a)Subject to his right of occupation of the C Town property for a period of twenty eight (28) days from the date of this order, entering upon or interfering with the shedding and land comprising the C Town property;
(b)Undertaking any work of any nature to structure, fencing, land or to the improvements on the C Town property;
(c)Approaching the wife or any person nominated by her, or approaching the wife at her home, her place of work or when the wife and/or her agents are in attendance at the C Town property;
(d)Communicating with the wife by email, text, letter or telephone.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Soloviev & Masur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1272 of 2018
| Ms Soloviev |
Applicant
And
| Mr Masur |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Initiating Application filed 7 April 2020 Ms Soloviev (“the wife”) seeks orders by way of property settlement arising from her marriage with Mr Masur (“the husband”).
Annexure “B” to the wife’s application sets out the interim orders sought. She seeks that the husband vacate the property situate at B Street, C Town in the State of South Australia (“the C Town property”), that he remove his personal belongings and effects from the wife’s residence situate at D Street, Suburb F in the State of South Australia, (“the Suburb F property”) and that the husband be restrained from:-
(a)approaching the wife or her children;
(b)coming within 100 meters of the Suburb F property;
(c)communicating with the wife by email, text, letter or telephone;
(d)entering upon or interfering with the shedding and land to the C Town property;
(e)undertaking any work of any nature on the C Town property;
(f)doing any act which has the effect of devaluing the C Town property or causing damage or destruction to the property or any part of it or its surrounds or causing or requesting any other person to do so; and
(g)feeding or caring for the animals resident on the C Town property.
By Response to an Initiating Application, noted as ‘Amendment 4’, filed 18 February 2020 the husband seeks final orders for property settlement in the following terms:-
(a)a settlement sum of $200,000 comprising $25,000 by way of interim partial property settlement and $175,000 by way of a final property settlement;
(b)spousal maintenance in the sum of $500 per week during the period that the husband lives at either the C Town or the Suburb F properties, backdated to 20 April 2018;
(c)that after the husband vacates either the C Town or the Suburb F properties then spousal maintenance in the sum of $1,000 per week indexed to the Consumer Price Index (“CPI”) for the balance of the husband’s life;
(d)that following the payment of the final settlement sum, the husband be permitted to remain in the C Town property rent free with unhindered access and the use of all facilities at the farm for a minimum period of 12 months;
(e)that while the husband remains in the C Town property the wife shall not interfere with the husband caring for and interacting with farm animals;
(f)that if the wife shall sell the C Town property within 12 months of the final orders then the husband shall be provided with a separate room, rent free, at the Suburb F property or any other property the wife has purchased or rented;
(g)that thereafter each party shall retain all personal property owned by them prior to cohabitation;
(h)that the husband shall retain all items purchased for his personal use after cohabitation; and
(i)that the wife shall keep safe and secure from loss or damage the husband’s property currently stored at the Suburb F property.
The interim orders sought by the husband are set out in Annexure “B” to his response.
Paragraphs 1A to 1E inclusive are no longer pressed. They relate to the husband’s application that Mead J recuse herself and that orders made on 5 December 2019, that required the respondent to attend upon a psychiatrist for the purpose of an assessment of his current state of mental health, but in particular directed to the husband’s ability to adequately or competently represent himself and if not then as to the appointment of a litigation guardian, be discharged.
The applications for the appointment of a case guardian for the respondent and that Mead J recuse herself were listed for hearing on 8 May 2020.
As matters transpired the proceedings have been transferred to the list of matters that I now manage.
On 8 May 2020, I told the parties that I did not consider I had jurisdiction to make an order that required a party to undergo a psychiatric assessment. I also indicated that subject to the wife pursuing her application, it was the Court’s intention to list for hearing the substantive components of the interim orders sought by the husband and the wife namely, the wife’s application for the husband’s removal from the C Town property and the cumulative effect of the husband’s interim orders namely, that he have sole use and occupation of the C Town property pending the resolution and final determination of the property settlement proceedings.
There was no opposition from either the husband or the wife to the discharge of orders made 5 December 2019 and paragraphs 1A to 1E inclusive of the husband’s interim orders sought.
Paragraph 2B of the interim orders sought seeks a declaration pursuant to s 78 of the Family Law Act 1975 (Cth) (“the Act”) that the husband has an equitable interest in the C Town and Suburb F properties.
The husband accepted that an application seeking a declaration pursuant to s 78 of the Act could not be determined on an interim basis and if pursued, was a matter for a final hearing.
Paragraph 2C seeks that the husband have “unhindered access” to the C Town and Suburb F properties, including contents and animals and a private room at each of the properties for his personal and private use.
Whilst not specifically sought, I indicated to the parties that I would treat 2C as an application that the husband have sole use and occupation of the C Town property pending the final resolution of the proceedings.
The husband did not pursue a right to occupy the Suburb F property on an interim basis. The focus of the interim proceedings is therefore upon the competing interim applications of the parties in respect to the husband’s ability to remain in occupation of the C Town property and if so, on what basis.
The wife seeks an order that she pay $20,000 to the husband by way of partial settlement of property. I do not consider that the wife’s proposal is open-ended but rather it is conditional upon the husband vacating the C Town property and utilising the proposed interim property settlement sum to assist in him finding alternative accommodation. For his part, the husband seeks that he be paid the sum of $25,000 but without identifying the head of power to justify such an order.
It is of some assistance that whilst not agreed as to the precise sum for differing reasons, the parties are in substantial agreement that the husband should receive a substantial interim payment.
The husband also seeks an interim order of spousal maintenance in the sum of $500 per week with such sum to be indexed according to CPI.
Background
The wife is employed as a healthcare professional. The husband is a retired former finance professional.
The wife has two adult children from her first marriage and a further child X who will soon be 16 years of age. X lives with the wife on a fulltime basis. She is not assisted financially in respect of his care.
The parties met on a dating site in June 2015 in circumstances where the wife had been widowed for about three years.
The parties’ relationship developed quickly and they were married on … 2015. The parties disagree as to the nature and circumstances of their relationship post-separation.
The wife contends that the parties separated on the day of the marriage whereas the husband considers that the parties remained in a marital relationship until a separation in 2018.
Following separation, the husband returned to Melbourne where he had previously been living. The husband returned to Adelaide in December 2018 to undergo surgery. The wife allowed the husband to live in the Suburb F property to assist in his recovery. The husband does not accept the wife’s position that he was a temporary or a casual boarder.
I am not able to determine on an interim basis what the nature of the parties’ relationship was whilst they lived in the Suburb F property. On 14 October 2018 the husband attempted to commit suicide, leaving a note. The husband was admitted for psychiatric observation and treatment for approximately two weeks. The wife was distressed at the husband’s suicide attempt in circumstances where her second husband had committed suicide at her home.
Prior to Christmas 2018 the wife alleges that without her knowledge or consent the husband moved into a “cottage” situate on the C Town property. He has remained in residence since that date and it is his application that he be able to continue to do so. The husband considers that whilst his initial occupation of the C Town property may have taken the wife by surprise, thereafter she provided her ongoing consent to his occupation.
Sole use and occupation of the C Town property
In Davis & Davis (1976) FLC 90-062 the Full Court considered the circumstances in which the Court could exercise power to determine whether a party should have exclusive use and occupation of a matrimonial home. At 75,309 the following appears:-
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.
When proceedings are before a court, the court has broad powers to grant injunctive relief including for the purpose of preserving the property of the parties and/or otherwise regulating the conduct of the parties pending final hearing.[1]
[1] See G & T (2004) FLC 93-176 at 78,989 – 78,990, at [53] – [54].
Whilst s 114(1) of the Act empowers the Court to make orders in positive as well as negative terms, as in the case of mandatory injunctions, such orders must be considered proper. The term “proper” means “reasonable and just in the circumstances.”[2]
[2] See In the Marriage of Farr (1976) FLC 90-133.
In those circumstances, pursuant to s 114(3), the Court must be satisfied that it is just or convenient to grant such an injunction or make an interlocutory order.[3]
[3]Mullen & De Bry (2006) FLC 93-293 at 80,999.
As was observed by Forrest J in the decision of Lampros and Anor & Lampros and Anor (2012) FamCA 415 at [50]:-
In this Court particularly, interim injunctive relief is primarily utilised to maintain things as they are, or to restore things to as they were until they were abruptly changed to the prejudice of an interested party, to protect claims that parties have or may have to substantive relief after a final hearing.
The applicant seeking an injunctive order bears the onus of satisfying the Court that the circumstances justify the making of that order.
The list of considerations as referred to by the Full Court in Davis were not exhaustive but may include the following matters:-
(a)What alternative accommodation may be available to the parties?;
(b)Does the party who is wanting to remain in sole use and occupation have financial resources that would enable them to secure appropriate accommodation?;
(c)Is it more or less convenient for either of the parties to leave the property?;
(d)Are the interests of a child or children affected by a party seeking to remain or an application that a party vacate a property?;
(e)Would the difficulties between the parties be remedied on an interim basis by a non-molestation order being put in place?;
(f)Could it be said that the husband may suffer an injustice by being forced to take up substandard or inappropriate accommodation?
I accept that the extent and breadth of matters that may be relevant to consider is not closed.
It is agreed that the wife is the sole registered proprietor of the C Town and Suburb F properties. They were owned by her prior to the marriage and whilst there is a factual dispute as to the extent of the husband’s financial contribution, there is no challenge to the wife’s legal ownership.
It is also not seriously pressed by the husband that he has an equitable claim in respect of either of the properties or that he seeks equitable relief similar to the position of the parties in Giumelli v Giumelli (1999) 196 CLR 101.
The husband does not seek to retain the C Town property by way of final relief. He seeks to be able to remain in the property for a period not less than one year after a final determination of the proceedings and receipt by him of any settlement sum as may be ordered.
The husband argues that the wife resides in the Suburb F property and his occupation of the C Town property is of little consequence to her, certainly on an interim basis.
The wife considers that the husband remaining in occupation of the C Town property is untenable.
The parties agree that there is not a dwelling house erected on the property.
Whilst the parties talk of the husband living in a cottage, in reality it is a second building that is adjoined to a shed and had historically been used by the wife as a business premise.
The property does not have a kitchen, bathroom or a toilet. There is no approved sanitation.
The property has electricity via an “off-grid” solar power system installed on the shed but connected to the area occupied by the husband via a cable or extension cord.
There is no water connected to the premises although there is a water tank that is near the back door.
The wife annexes correspondence to her affidavit filed 7 April 2020 from the Duty Planner of the E Council dated 10 March 2020:-
Hi [Ms Soloviev],
Following our call this morning, I spoke personally with my manager regarding your situation. From our perspective, all we can do is verify that the land has not had any past approvals for any habitable buildings. I do note that there was an approval for a two-storey detached dwelling in 2005/06, but that appears to not have progressed.
With regard to the shed on the property, I have attached the original Decision Notification Form for its approval. Here, you can see that it is defined as a ‘Farm Building’, and has no approval for human habitation. If someone were living inside there as a residence, this would be considered an illegal use, and Council would issue a Section 84 notice (to either cease the use or gain approval for it). The same principle would apply for a caravan, as no approval has been granted on the property. With no structures or buildings approved for human habitation on the site, the squatter residing on the land would likely be changing the use illegally from a development perspective.
I hope this information helps, and I wish you luck in rectifying this difficult situation.
Best regards,
[Mr H]
Duty Planner
[E] Council
The husband does not suggest that the observations of the Duty Planner are inaccurate.
The husband is able to cook via a portable hotplate. There is no kitchen, bathroom, laundry or bedroom.
It is a significant issue that the property has no sanitation. The husband admits that he defecates in holes that he digs on the property.
The parties are also in dispute as to the manner in which the husband keeps the property. The wife contends that there is rubbish around the property, that it is unhygienic and unhealthy and that the animals that currently live on the property have been adopted by the husband, given names and have been invited at times to live in the shed. She alleges that some of the animals have disappeared.
The husband denies that the premises are unkempt or untidy. He admits that initially the shed and adjoining building could not be considered as in any way habitable and whilst there was a quantity of rubbish in and around the dwelling, it was cleaned up and made tidy upon the express instruction of the wife.
The husband seeks to remain living on the C Town property but does not seek an injunction that the wife, her adult children or her agent be excluded from attending.
There is some dispute as to who bears the obligation to care for the animals. The wife states that she attends the property on approximately two occasions in each week to ensure that the animals are fed and that there is water. She does not occupy the premises given that they are not habitable and as such her visits are restricted to some few hours. The husband argues that the animals are neglected by the wife and it is part of his contribution to the property that he provides for their care.
I am not able to determine the veracity of the assertions made by each of the parties. I do accept that the husband has developed a fondness for the animals which is the basis for an injunction that he seeks that he be able to look after the animals and deal with the property without interference from the wife or her agent. The animals are the property of the wife. I accept that their number has diminished.
The relationship between the parties is made complex by the husband’s allegation that he was physically assaulted by the wife and her assertion that the husband intimidates her by shouting, raising his voice and taking photographs of the wife when she attends the C Town property.
The wife contends that the husband’s behaviour is threatening and she now feels unable to attend the property unless she is accompanied by her adult children.
The wife also considers that the husband has damaged the property and has left food scraps and rubbish on the cement floor on the outer room of the dwelling which has attracted vermin.
She further alleges that her personal belongings have been removed and the husband has interfered with the improvements on the property without her consent.
The specific allegations of the wife are the subject of denial by the husband but it is apparent from photographs annexed to the wife’s various affidavits that the premises could not be considered as habitable.
The wife sets out what she considers to be the property pool of the parties:-
Assets
Estimated Value
The Suburb F property (wife)
$760,000
The C Town property (wife)
$470,000
Motor vehicle (wife)
$55,000
Household contents (wife)
$10,000
Stock, plant and equipment on C Town property (wife)
$10,000
Total
$1,305,000
Liabilities
G Bank mortgage (wife)
$376,832
G Bank mortgage (wife)
$251,358
J Bank mortgage (wife)
$183,907
G Bank Master Card (wife)
$13,762
Motor vehicle lease
$55,000
Total
$880,859
Net
$424,141
The husband discloses little or no property of value.
It is agreed that the G Bank mortgage in the sum of $376,832 and the J Bank mortgage of $183,907 are secured over the C Town property. The weekly repayments are in the sum of $791.
In addition, the wife discloses ongoing fixed expenditure in respect of the C Town property by way of rates, taxes and insurance.
It is apparent that based upon the wife’s assessment of the value of the C Town property there is little or no equity.
It is common ground that the husband does not and is unlikely to contribute to either the mortgage repayments or the outgoings.
The husband’s financial circumstances are relevant when considering his application for spousal maintenance, but upon his own submission I am able to find that he is unable to make any contribution to the outgoings attached to the C Town property.
Exhibit “1” contains a medical report from the husband’s specialist dated 8 May 2018. It confirms that the husband has three medical issues.
I am not able to find the extent to which the medical conditions in 2018 still impact upon the husband in 2020. I accept the husband’s position that he has an upcoming appointment for a biopsy.
The husband also sought and then tendered a brief report dated 31 March 2020 from his Melbourne based general practitioner. It confirms that the husband has suffered from respiratory difficulties in the past and has been prescribed inhalation medication.
There is no evidence as to whether any of the past medical complaints or current diagnosis has any impact upon the husband’s ability to function.
It is the husband’s position that he intends to live alone on the C Town property, does not have access to running water or any sanitation, does not have a motor vehicle and is unlikely to be connected to the internet although he may be able to communicate by mobile phone.
His ability to remain on the property is entirely dependent upon the reliability of the solar panel system continuing to provide “off-grid” power.
The predicament of the husband is unusual in that he does not seek to remain in the former matrimonial home, nor indeed even in a property that is habitable. He seeks to remain on the C Town property in circumstances that are at best unsatisfactory, or at worst potentially dangerous to his own health and wellbeing.
The wife is the legal registered proprietor of the C Town property. At one level she has a responsibility for that which occurs on the property. It is likely that the husband’s continued occupation of the C Town property is contrary to various legislation, rules and by-laws of the E Council.
Moreover, the circumstance as between the parties is such that it is reasonable for the wife to feel uncomfortable and potentially fearful of attending upon the property in circumstances where it is necessary to do so given the husband is not able to contribute to the outgoings of the property or effectively maintain it.
I must also bring to account the reasonable alternatives for the husband. It is a trite observation that notwithstanding the husband’s protestations to the contrary, the property is entirely unsuitable for human habitation.
I am cognisant of the husband’s personal circumstances and accept that by reference to his Financial Statement filed 31 July 2019 he has few, if any, assets and minimal or no income. He makes no financial contribution to the property and by his own admission is not able to adequately provide for himself.
I do not consider that it is appropriate for the husband to remain on the C Town property in circumstances where his occupation is not permitted by law, but in any event is unfit for human habitation. Equally, the prospect of the husband becoming homeless would be unpalatable.
The husband does not propose any alternative accommodation. He appears not to have friends or family in South Australia, but he does have a friend in Melbourne who has been providing him with temporary financial assistance. The husband also has extended family in Victoria.
The wife seeks to counter the assertion by the husband that if an order is made that he vacate the C Town property he would be effectively homeless, by a proposal that he be paid the sum of $20,000 by way of partial property settlement. As discussed, the husband’s counter proposal is for the sum of $25,000.
It is reasonable to assume, given the absence of any basis for the husband’s proposal to remain on the property, that he has contemplated the possibility that he would be required to leave the C Town property and find alternate accommodation.
There is no evidence from either of the parties as to the availability of alternate accommodation but the wife asserts that her own inquiries reveal there are properties available for rent in the C Town area of between $250 and $300 per week.
As such, the sum of $20,000 should be adequate to enable the husband to find appropriate alternative accommodation, providing he is given some time to do so.
I propose to dismiss the husband’s oral application for sole use and occupation of the C Town property and make orders that the husband vacate the property within 28 days. For reasons that will be discussed, I will order that the wife pay to the husband a settlement sum of $25,000 to be paid in the following manner:-
(1)A sum of $5,000 within seven days of this order;
(2)The sum of $10,000 upon the husband advising the wife of the date upon which he intends to vacate the C Town property (but in any event not longer than 28 days from the date the order is made); and
(3)The sum of $10,000 payable forthwith upon the husband vacating the C Town property.
The husband’s personal belongings stored at the Suburb F property
The wife complains that the husband has stored a quantity of his personal possessions in the driveway under the carport of the Suburb F property. I accept that the husband has been asked on a number of occasions as to his plans for the removal of his possessions. For reasons that are not immediately clear but possibly because the husband was uncertain as to how he would collect and thereafter store his belongings, he has provided the wife with no satisfactory response.
The husband does not wish to abandon his possessions but he is concerned that they be properly stored and cared for.
It is not reasonable that the wife be obliged to store the husband’s belongings at her expense and then have the added obligation of ensuring that they are protected.
The husband recognises that the C Town property is entirely unsuitable for their storage. He considers that if given some time he may be able to store them at a friend’s property, but if he has the financial resource then it is possible that they could be stored at a commercial storage facility until he resolves his future accommodation.
I propose that the wife will provide the husband with the sum of $5,000 within seven days of the order made. That will enable the husband to arrange for his agent or carrier to remove his possessions from the Suburb F property to a location of his choosing.
Should the husband fail to cause the removal of his possessions from the Suburb F property and if the default extends for a further period of seven days then the wife will be at liberty to dispose of the property either by sale should there be items of value, or by general disposal and account to the husband for any net proceeds of sale that may arise.
Partial settlement of property
There are essentially two stages to the consideration of an application for interim property orders:- [4]
(i)The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for interim property settlement before a final hearing. At this stage the “overarching consideration” is the interests of justice;
(ii)The second stage is the “substantive step” where the provisions of s 79 must be considered and applied but with limitations, given that it is not a final hearing.
[4] See Strahan & Strahan (Interim Property Order) (2011) FLC 93-466
In Medlow & Medlow (2016) FLC 93-692 at [69] the Full Court confirmed that the starting point in respect to any property application, including an application for interim property orders, is “the identification of the parties’ property and of their interests in it”.
In circumstances where a party seeks interim property orders, the onus is upon the applicant to establish that there were sufficient assets available for an interim distribution to be made.
The very nature of an interim hearing is such that the Court is not in a position to properly evaluate the evidence and, accordingly, the Court should take a conservative approach, including in respect of determining whether there is likely to be sufficient resources of the parties available at the final hearing to accommodate what could be considered any “adjustment”.
The wife proposes an order by way of partial settlement of property but conditional upon the husband vacating the premises. She does not consider that there would be any other circumstance that would arise where an interim order of property settlement would be made.
It must be remembered that the wife’s position is that the marriage between the parties lasted but a few hours and accordingly any settlement made in his favour would be relatively modest.
The husband does not accept the wife’s assertion as to the period of cohabitation but rather considers that the parties were married for about three years. Further, the husband considers that he made a substantial contribution consequent upon the sale of his property in Melbourne and his contribution of substantial sums of money to assist the wife with the payment of the mortgages over the C Town and Suburb F properties and ongoing contribution to general household expenses, including those relating to the wife’s son X.
I assume that the wife has considered the parameters of her case and proffers the sum of $20,000 as an amount that can be adjusted in respect of any final orders for property settlement.
As considered, there is merit in the larger sum as sought by the husband but to be distributed upon certain conditions being met by him.
Spousal maintenance
The husband seeks an order that the wife pay the sum of $500 per week by way of interim spousal maintenance.
In the decision of Hall & Hall (2016) 257 CLR 490 the High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth). This can be particularly challenging in the context of an application for interim spousal maintenance. As the Full Court said in Edgar & Strofield (2016) FLC 93-711 at [15]:-
the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing …
The issues to be determined are as follows:-
(1)To what extent is the husband able to support himself?
(2)What are the husband’s reasonable needs?
(3)What capacity does the wife have to meet a spousal maintenance order, if such order is to be made? and
(4)If (1) to (3) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to s 75(2) of the Act?
In Brown & Brown (2007) FLC 93-316 at [161] the Full Court summarised the principles to be applied as follows:-
·The word “adequately” is not to be determined according to any fixed or absolute standard.
·The idea that “adequate” means a subsistence level has been firmly rejected.
·Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
·However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
It should also be remembered that in determining the “reasonable ability” of a party to satisfy an order for interim spousal maintenance the Court is not confined to considering only that party’s income but rather, once a party establishes an entitlement to interim spousal maintenance an order can be made notwithstanding that it can only be satisfied out of the property of the liable party.
The husband provides scant information in respect of his financial circumstances. By reference to his financial statement his income is nil. It is difficult to understand how that could be in circumstances where at the very least he should be entitled to some sort of benefit, pension or allowance either by way of any disability upon which he may rely or by reason of Newstart or other pension benefit or allowance.
There is some evidence that the husband borrows money from a friend, however those arrangements are uncertain.
The husband also presents no evidence as to any effort he has made to find employment. I bring to account the husband’s age and whilst I note that he relies upon medical reports comprised in Exhibit “1” they are of little assistance in terms of his current circumstances.
On his own evidence, the husband does not receive money by way of loan or from any other source which enables him to cover his outgoings of $1,000 per week.
The submissions of the husband would not suggest that the items in Part N of his financial statement bear any reference or connection to his current circumstances. The husband is unlikely to consume food to the sum of $200 per week nor household supplies to the sum of $50 per week.
As discussed, the house does not have gas connected nor is there a charge for electricity in circumstances where the system is “off -grid”.
The husband does not have a car and there is no evidence that he pays for medical, dental, or optical expenses, entertainment or holidays, each claimed in the sum of $100.
It is not unreasonable to assume that the husband’s future accommodation may well require some of those components to be included in his expenditure and I also accept that the husband is likely to have a rental obligation.
In the circumstances of the case the husband could in the future conceivably justify $500 per week.
The difficulty is, that whilst the wife appears to have a substantial income, her expenses are such that any surplus income is unlikely to be sufficient to meet the husband’s requirement.
The payment of a lump sum as proffered by the wife and sought by the husband may also be achieved by recourse to spousal maintenance as opposed to interim settlement of property.
To some extent and in the circumstances of this case the two are interchangeable.
If the husband receives a settlement sum by way of partial settlement of property and it is spent on the exigencies of life, it is unlikely that the money so paid would be brought back to account. Similar consideration would apply if the money was received by way of spousal maintenance.
In circumstances where I have indicated to the parties that I intend to expedite this trial to a date in either July, August or September 2020 depending upon valuations being available, it is likely that the sum of $25,000 would enable the husband to find and fund appropriate alternative accommodation and cover necessary living expenses for a period of approximately six months.
I do not propose to make any additional order by way of spousal maintenance.
Injunctions
I do not propose to oblige the husband to make any further contribution to the upkeep of the C Town property as sought by the wife, provided that he vacates the property as ordered. If he does not then it is reasonable that he make contribution as sought by the wife. It could be said that the sum of $200 per week as sought by the wife is modest given the significant mortgage payments that are directly related to the retention of the property.
Until the husband vacates the property I propose to put in place some injunctions that restrain the husband from approaching the wife or any agent of hers including her children and that he not undertake any work to the property, improvements or animal management situate on the property.
There remains a dispute between the parties as to whether the actions of the husband has caused significant loss to the wife by a diminution of the animals that were on the property. That will be a matter for evidence but it seems that in circumstances where the obligation clearly falls to the wife to maintain the animals and the integrity of the improvements on the property, it is not proper that the husband engage jointly with the wife in those tasks.
Conclusion
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 May 2020.
Associate:
Date: 22 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Costs
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