SOLOVIEV & MASUR - [2020] FamCA 398

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
Davis & Davis (1976) FLC 90-062
Edgar & Strofield (2016) FLC 93-711
G & T (2004) FLC 93-176
Hall & Hall (2016) 257 CLR 490
In the Marriage of Farr (1976) FLC 90-133
Lampros and Anor & Lampros and Anor (2012) FamCA 415
Medlow & Medlow (2016) FLC 93-692
Mullen & De Bry (2006) FLC 93-293
Strahan & Strahan (Interim Property Order) (2011) FLC 93-466

APPLICANT:

Ms Soloviev

RESPONDENT:

Mr Masur

FILE NUMBER:

ADC

1272

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”)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading SOLOVIEV & MASUR

Details

AGLC: SOLOVIEV & MASUR [2020] FamCA 398
Case: [2020] FamCA 398
Decision Date: 22 May 2020

CaseChat Overview and Summary

The parties in this matter were husband and wife, and the dispute concerned interim arrangements for property and spousal maintenance pending final resolution of their family law proceedings. The wife sought the husband's vacating of a property solely registered in her name, alleging it was unkempt and damaged, while the husband sought to remain in occupation and sought a higher interim payment than proposed by the wife. The wife also sought to make a conditional payment to the husband, which could be characterised as either a partial property settlement or spousal maintenance.

The court was required to determine whether to grant the wife's application for sole use and occupation of the C Town property, and whether to make orders for interim property settlement and spousal maintenance. Specifically, the court considered the husband's needs and ability to support himself, and the wife's capacity to meet any spousal maintenance order, in light of the proposed lump sum payment. The court also had to consider the application of section 79 of the *Family Law Act 1975* (Cth) in the context of an interim property distribution.

Berman J reasoned that it was just and convenient to make orders for the husband to vacate the C Town property within 28 days, and granted an injunction restraining him from devaluing or damaging the property. The court also ordered the husband to arrange for the removal of his chattels from another property within 14 days, with provisions for the wife to dispose of any remaining items. A payment of $25,000 was ordered to be made to the husband, structured in stages, to be applied as either partial property settlement or spousal maintenance. The court also ordered that in default of the husband vacating the C Town property, he would pay $200 per week to the wife. Further injunctions were granted restraining the husband from interfering with the C Town property, undertaking work on it, approaching the wife or her nominees, and communicating with the wife.

Orders

Orders of the court

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

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.