Toomey and Toomey
[2008] FMCAfam 654
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOOMEY & TOOMEY | [2008] FMCAfam 654 |
| FAMILY LAW – Exclusive occupation of former matrimonial home – not reasonable, sensible or practicable to expect the parties to remain in the home together. |
| Family Law Act 1975, s.114 |
| In the marriage of Davis, R.B. and Davis, J.M. (1976) FLC ¶90–062 In the marriage of Davis, P.M. and Davis, K.E. (1983) FLC ¶91–319 In the marriage of V. and C.L. Fedele (1986) 10 FamLR 1069 |
| Applicant: | MS TOOMEY |
| Respondent: | MR TOOMEY |
| File Number: | MLC 4623 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 4 June 2008 |
| Date of Last Submission: | 4 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mendes Da Costa |
| Solicitors for the Applicant: | Rudstein Kron Lawyers |
| Counsel for the Respondent: | Mr Wood |
| Solicitors for the Respondent: | Westminster Lawyers |
ORDERS
The husband must vacate the matrimonial home at Property O by 4.00pm, fourteen (14) clear days after the date of these orders being 4.00 pm on 4 July 2008 and not return until the clearance of payment by him to the wife of $250,000.00 as provided hereunder.
The husband and wife forthwith each do all such acts and things and sign all such documents as may be necessary to effect a sale of the investment property known as and situate at Property G (“the investment property”).
That the terms and conditions of the sale and the listing price be agreed between the parties, or failing agreement, be as advised by a licensed estate agent nominated by the President of the Real Estate Institute of Victoria.
That upon completion of the sale of the investment property, the proceeds of sale be applied as follows:
(a)Firstly, to pay the wife $250,000.00;
(b)Secondly, to pay all costs, commissions and expenses of sale;
(c)Thirdly, to discharge the mortgage and other encumbrances affecting the property;
(d)Fourthly, the balance be placed forthwith in an interest bearing account in the joint names of the parties pending agreement by the parties as to its distribution, or further order of this Court;
(e)That pending sale of the investment property, the husband pay all outgoings in relation to that property including but not limited to mortgage repayments and rates; and
(f)That within 14 days, the husband make discovery to the wife of:
(i)All documents showing how the termination payout he received from [X] Motors has been applied;
(ii)His current payslips and contract of employment, if any, with his new employer, Ultratune; and
(iii)A full account of how he has applied monies since separation.
Pursuant to Rule 10.05 of the Federal Magistrates Court Rules 2001, the parties attend a Conciliation Conference with a Deputy Registrar of the Family Court of Australia at the Melbourne Registry on 28 August 2008 at 9.15 am.
The matter be fixed for final hearing on 21 November 2008 at
10.15 amwith an estimated hearing time of 2 days.
IT IS NOTED that publication of this judgment under the pseudonym Toomey & Toomey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4623 of 2008
| MS TOOMEY |
Applicant
And
| MR TOOMEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties were married in 1995 and separated in September 2007. They have two children, [A] born in 1997, and [B] born in 1999 who live with the wife in the matrimonial home at Property O. The husband also lives at that home.
The parties have an investment property in their joint names located at Property G.
By application filed on 22 May 2008 (with time abridged as to paragraphs 11 to 19 of the interim orders sought) the wife seeks interim property orders as follows:
“11. That the Husband vacate Property O (“the matrimonial home”) within 14 days of the date of the Orders and the Wife be entitled to have exclusive use of the home until further order or sale of the home.
12. That the Husband and Wife forthwith each do all such acts and things and sign all such documents as may be necessary to effect a sale of the matrimonial home known as and situate at Property O (“the matrimonial home”).
13. That the terms and conditions of the sale and the listing price be agreed between the parties, or failing agreement, be as advised by a licensed estate agent nominated by the President of the Real Estate Institute of Victoria.
14. That upon completion of the sale of the matrimonial home, the proceeds of sale be applied as follows:
(a) First, to pay all costs, commissions and expenses of the sale; and
(b) Second, to discharge the mortgage and other encumbrances affecting the property; and
(c)Third, to make interim distributions of $250,000 to each of the parties; and
(d)Fourth, to place the balance in an interest bearing account in the joint names of the parties pending agreement by the parties as to its distribution or further Order of his Honourable Court.
15.That pending the sale, the husband pay all outgoings in relation to the matrimonial home, including but not limited to mortgage repayments and rates.
Property G
16.That the Husband and the Wife forthwith each do all such acts and things and sign all such documents as may be necessary to effect a sale of the investment property known as and situate at Property G (“the investment property”).
17.That the terms and conditions of the sale and the listing price be agreed between the parties, or failing agreement, be as advised by a licensed estate agent nominated by the President of the Real Estate Institute of Victoria.
18.That upon the completion of sale of the investment property, the proceeds of sale be applied as follows:
(a)First, to pay all costs, commissions and expenses of the sale; and
(b) Second, to discharge the mortgage and other encumbrances affecting the property; and
(d)Third, to place the balance in an interest bearing account in the joint names of the parties pending agreement by the parties as to its distribution or further Order of his Honourable Court.
19.That pending sale of the husband all outgoings in relation to the investment property including but not limited to mortgage repayment and rates.”
In his response the husband seeks interim property orders as follows:
“6. That the husband and the wife forthwith do all things and sign all documents necessary to sell the property at
Property G by auction with such auction to take place not more than 8 weeks from the date of the order of this court.
7. That terms and conditions of the sale and the listing price be agreed between the parties, or failing agreement, be advised by the licensed estate agent nominated by the President of the Real Estate Institute of Victoria.
8.That upon the completion of the investment property, the proceeds of sale be applied as follows:
(a)first, to pay all costs, commissions and expenses of sale;
(b)secondly, pay out Commonwealth Bank home loan [1];
(c)thirdly, pay the sum of $100,000 to the wife by way of partial property settlement;
(d)fourthly, so much of the balance then remaining to be applied firstly to Commonwealth Bank home loan number [2] and Viridian line of credit number [3].
9. Such further or other orders as the court deems fit.”
The immediate concern of the wife is that the husband cease living at the former matrimonial home with her and the children.
She seeks also that the former matrimonial home and investment property should be sold and that the husband make an interim payment to her of $250,000.00.
The husband wants to retain the former matrimonial home but wishes to sell the investment property. He proposes paying the wife $250,000.00 from the proceeds of sale if that will enable him to continue living in the former matrimonial home and avoid the sale of that home (the Court has not had the benefit of transcript to confirm the exact terms of this proposal).
It is apparent from the material and submissions that there is great tension between the parties and that this is having an adverse impact on the well–being of [A] and [B]. The report of Doctor T attests to this (exhibit “NT3” to the affidavit of the wife sworn on 2 June 2008).
The parties agree that they are unable to negotiate parenting orders until the issues now before the Court are determined.
The remaining property matters have been adjourned to a conciliation conference at 9.15 am on 28 August 2008, with a final hearing listed at 10:15 am on 21 November 2008 (these orders are referred to earlier in this judgment).
After hearing submissions for the parties, the Court reserved its decision on the interim orders sought.
The application before the Court includes an application by the wife that the husband vacate the matrimonial home, and that the wife be entitled to the exclusive possession of that home (to live there with the two children of the marriage). That application is for an injunction or order under s.114(1) of the Family Law Act 1975 (“the Act”), and in particular under paragraph (f) of that section which provides that the Court may make such an order or grant such an injunction as it considers proper with respect to the matter to which the proceedings relate, including:
“(f)an injunction relating to the use or occupancy of the matrimonial home.”
In the marriage of Davis, R.B. and Davis, J.M. (1976) FLC ¶90–062 (Court’s emphasis) the Full Court of the Family Court decided (per Justice Baker at p.75,309 with whom the other members agreed):
“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…
These are relevant matters and the needs of children must be given proper weight. However they should be put in the balance with other factors. The order would effectively exclude the husband from the home in favour of the wife and child. A decision of this nature should not depend merely on balance of convenience issues. There was no evidence that the child would suffer any disadvantage from living elsewhere or that, having regard to the alternatives available, the needs of the mother and child for that particular home outweighed the husband's interest in retaining possession. In our view no sufficiently cogent reasons were advanced in support of the order, and on the face of it the order appears to us to be unfair to the husband.”
In the marriage of Davis, P.M. and Davis, K.E. (1983) FLC ¶91–319 (Court’s emphasis) the Full Court of the Family Court decided (per curiam) at p.78,169:
“In Rowe and Rowe (1980) FLC ¶90-895, Pawley S.J. at p. 75,644 of the report had this to say, and I quote:
‘In applying the test, it seems to me that the court ought not resort to such words as `intolerable' or `impossible' but must simply be satisfied that it would not be reasonable to expect both parties to continue to remain on the premises together…’
…
In Page and Page (1981) FLC ¶91-025, the Court referred to the following passage from the decision of the Court of Appeal in England in Walker v. Walker (1978) 3 All E.R. 141, in which Geoffrey Lane L.J. said at p. 143, and I quote:
‘What seems to me to be the question which the court has to decide is this: what is, in all the circumstances of the case, fair, just and reasonable and, if it is fair, just and reasonable that the husband should be excluded from the matrimonial home, then that is what must happen. Before one can come to a conclusion, all the circumstances have to be regarded…’
…
All the above cases set out the many issues which the Court must consider when determining an application for exclusive occupancy of the matrimonial home.
Lindenmayer J. in an unreported decision of Price and Price, which judgment was delivered on 12 July 1982, extracted from the abovementioned authorities the relevant principles of law in relation to applications for exclusive occupation of a matrimonial home which principles his Honour encapsulated in the following passage, and I quote:
‘In my opinion, Page's case demonstrates a softening of the Court's attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. 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.’
This passage, in my view, correctly states the principles of law to be applied in applications for exclusive occupancy of a matrimonial home.”
In the marriage of V. and C.L Fedele (1986) 10 FamLR 1069 (Court’s emphasis) the Full Court of the Family Court decided (per curiam):
“The effect of those orders was to order that the husband vacate premises at 202 Alfred Street, Narraweena, and that his wife have the sole occupancy of that home, that to take effect at the expiration of two months from the date of that order…
Mr Brereton submitted that it was necessary to focus upon the circumstances of the separation, not on the circumstances at the time of the hearing, and that this would be so even if the circumstances of one of the parties or of the children had significantly deteriorated in the intervening period.
As a matter of principle, it is difficult to see why the wide discretion under sec. 114(1) could or should be limited in this way, particularly as considerable hardship to a party and/or children of the marriage may flow as a consequence of the application of such a principle.
However, Mr Brereton said that his submission was supported by authority. He referred us to the Full Court judgment in Davis and Davis (1983) FLC ¶91-319 at p. 78,170, where the Full Court cited with apparent approval a passage from the judgment of Pawley J. in Rowe and Rowe (1980) FLC ¶90-895 at p. 75,644. In that latter case, Pawley J., after referring to other cases, said this:
‘In applying the test, it seems to me that the court ought not resort to such words as `intolerable' or `impossible' but must simply be satisfied that it would not be reasonable to expect both parties to continue to remain on the premises together. The test is the same whether at the time of the application both parties were in fact residing on the premises or whether the applicant has withdrawn from them. It is an objective test and, of course, each case must be determined on its own particular facts.
In this case, therefore, one must look to see whether there was any evidence upon which his Honour could have found that the wife had acted reasonably in withdrawing from the matrimonial home; whether in fact she had proper cause to do so by reason of the conduct of her husband. In my view, no such evidence was adduced.’
It appears to us that the view contended for by counsel for the husband could not properly be ascribed either to Pawley J. in Rowe's case or to the Full Court in the 1983 Davis case. At best they were referring to no more than one of a multitude of factors which, in the exercise of the wide discretion under sec. 114(1), a trial Judge may take into account in determining whether it is just and proper to make an order. This is made clear from the earlier quotation by the Full Court in the 1983 Davis case, of the passage from Davis and Davis (1976) FLC ¶90-062 at p. 75,309 which is in the following terms: ‘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.’
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.’
That was the very test which Ellis J. applied in this case and we consider that it was a proper approach for him to have adopted.
There have been numerous reported cases on the application of sec. 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 sec. 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 authoritative judgments in this Court.”
The result is that there is a wide discretion under s.114(1), and there are a multitude of factors that the Court may take into account in determining whether it is just and proper to make an order granting exclusive possession, but that all that is necessary is that the Court should have regard to the situation between the parties as being such that it would not be reasonable, sensible or practicable to expect the parties to continue to remain in the home together.
Since separating in September 2007, the parties have continued to live in the matrimonial home with the children, but there is a lot of tension between the parties which is affecting the children. The wife is under severe emotional tension (affidavit of the wife sworn 20 May 2008, para 7). The stress caused the wife to seek counselling (Ibid 7).
The wife requested the husband to leave the home on 14 November 2007, 7 February 2008 and 14 March 2008 but the husband refused. The wife says that the situation is intolerable (Ibid 8). The parties attended a family dispute resolution practitioner, the last visit being on 3 January 2008, but they were unable to resolve their differences.
The wife states that the husband’s parents live nearby and that he could move into their spare room. He already visits and has dinner there most nights (Ibid 9). The wife says that she cannot move out as she cannot afford rent (on her gross income of $1,040.00 per week: by comparison the husband’s gross income is $1,250.00 per week).
The parties share the rental income of $340.00 per week from the investment property. The wife says that she cannot afford to buy a property until she receives funds from the sale of their properties, and that she cannot move into her parents’ house in [Y], as it is too small and too far away from the children’s school (Ibid 10). Moving to [Y] would therefore disadvantage the children.
If the above evidence is accepted, the situation in the home is such that it is not reasonable, sensible or practicable for the parties to remain in the house together.
The husband states (affidavit of the husband sworn on 2 June 2008) that he has not been physically or verbally aggressive towards his wife, but that they do have “spirited arguments” which are “less frequent and less severe than before our separation under the one roof”.
The husband states that parties do not eat together (Ibid 5).
The husband says that he cannot move into his parents’ home, as the “third bedroom is a sewing and hobby room” and it would be highly disruptive for them if he moved in (Ibid 6).
The husband brought into the marriage a house in [Z] which was sold on 18 December 1998 for $245,000.00. The parties then purchased the matrimonial home at Property O, for $318,000.00. The husband’s parents provided the deposit of $31,800.00 with the balance obtained pursuant to the mortgage to the Commonwealth Bank (Ibid 10). When the funds were available from the sale of the home in [Z], they were paid to the Commonwealth Bank to reduce the mortgage to $40,000.00.
The husband therefore made a large financial contribution to the property that the wife now wants him to vacate.
The husband says that his “work performance has probably deteriorated because of the problems at home” (Ibid 17).
The husband says that when his “wife is present, I tend to stay out of the way as she becomes agitated when she sees me speak to the children,” and that he has “remained in my bedroom while the children are getting ready for school so as to avoid conflict with my wife in front of the children” (Ibid 27).
The husband “provides his own groceries” (Ibid 30). The husband “is willing to participate in counselling to assist with parenting since separation” (Ibid 34). The husband states that his parents “miss the children a great deal given their high level of involvement in the children’s lives prior to separation” (Ibid 35).
It is obvious from the affidavits of both parties that there is great tension between them. The wife does not want the husband living in the same home as her and the children.
The Court has had regard in particular to the following evidence:
·The wife cannot afford to buy or rent a house.
·The wife’s parents home is too small and is a long way from the children’s school.
·That living in the same house as the husband is causing tension for the wife and the children.
·That a doctor has reported that the stress in the household is “unhealthy” in respect of the emotional well–being of the children, [A] and [B].
·That the husband’s income is $210.00 per week higher than the wife.
·That the husband’s parents live nearby, and have a third bedroom which is currently a hobby/sewing room.
·That the wife is the principal carer of the two children.
·That there is much stress and tension in the household.
·That the husband eats in a separate room from the family, or at his parents’ place.
Having regard to the evidence, the submissions and to the law, the Court finds that the situation is such that it is not reasonable, sensible or practicable to expect the parties to continue to remain in the same house together. There is a pressing need to remove or reduce the stressful environment in the house where the wife and children live.
Although this will require the husband to vacate the home against his will, the Court has decided that until the sale of the investment property and the payment by the husband of $250,000.00 to the wife, the husband is restrained from living in the matrimonial home located at Property O. The husband must vacate the home by 4.00 pm, fourteen (14) clear days after the date of these orders, being 4.00 pm 4 July 2008, and not return to live there until the payment by him to the wife of $250,000.00 as provided herein.
Both parties agree that the investment property located at Property G be sold. The Court orders that that property be sold as soon as possible and that both parties take all steps necessary to sell that property.
Upon payment to the wife of the $250,000.00 the husband is entitled to return to live at the former matrimonial home subject to an order of the Court to the contrary.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 20 June 2008
0
1