TOUHY & TOUHY

[2019] FamCA 352

FAMILY COURT OF AUSTRALIA

TOUHY & TOUHY [2019] FamCA 352

FAMILY LAW – PROPERTY – Interim – Where the wife seeks that the husband vacate the former matrimonial home – Where the wife seeks sole use and occupation – Where the application is brought on short notice – Where the husband opposes the application.

Family Law Act 1975 (Cth) s 114(1)(b)

Davis & Davis (1976) FLC 90-062
Jolly & Jolly (1978) FLC 90-458
Plowman v Plowman (1970) 16 FLR 447

APPLICANT: Ms Touhy

RESPONDENT: Mr Touhy

FILE NUMBER: ADC 2667 of 2017

DATE DELIVERED: 31 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 24 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: Mr Livesey QC with Mr Howe

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

UNTIL FURTHER ORDER

1. Conditional upon the husband paying to the wife the further sum of ONE HUNDRED AND TWENTY DOLLARS ($120) per week, the Application in a Case filed 2 May 2019 is dismissed.

2. That the wife file an amended Initiating Application within fourteen (14) days of this order and the husband file an amended Response within fourteen (14) days thereafter.

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 Touhy & Touhy 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 2667 of 2017

Ms Touhy

Applicant

And

Mr Touhy

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 2 May 2019, Ms Touhy (“the wife”) seeks an order that the husband vacate the former matrimonial home situate at W Street, Suburb O, South Australia (“the Suburb O property”) and that thereafter pursuant to s 114(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) she have sole use and occupation of the Suburb O property.

2. By his Response filed 21 May 2019, Mr Touhy (“the husband”) opposes the wife’s application for sole use and occupation. He no longer presses paragraph 2 of the response and dependent upon whether the parties are able to take up the opportunity of an expedited hearing in week commencing 15 July 2019, paragraph 3 of the response may be abandoned.

Background

1. The parties separated on 7 May 2017. The wife and the four children left the Suburb O property and moved to rental accommodation at N Street , Suburb O until 9 May 2018 and then to her current rental premises at R Street, Suburb S (“the R Street property”).

2. The rental is in the sum of $950 per week.

3. The wife relies upon a Financial Statement filed 10 May 2019 which records that her total income of $2,659 is paid by the husband pursuant to orders made on 25 September 2017.

4. The wife’s tenancy expired on 9 May 2019 and whilst she has been able to obtain an extension until 9 June 2019, it is her preference that she and the children return to the Suburb O property rather than renew the tenancy over the R Street property for a minimum further period of one year.

5. Since separation the husband has remained in the Suburb O property, currently with his partner.

6. The wife has been keen to return to the property and it is not controversial that she seeks to retain the Suburb O property as part of her final settlement.

7. Until recently the husband has not expressed any position in respect of the retention of the Suburb O property, but it is a fair summary of his position that he would wish to keep his options open depending upon what orders may be made as to the extent to which each of the parties retain the interest in B Pty Ltd, currently held by Q Pty Ltd as Trustee for the Mr Touhy Family Trust being an entity controlled by the husband.

8. Subject to agreement or a determination as to the value of the interest in the B Group of Companies, a reasonable assessment of the assets and liabilities of the parties are set out at [26] and [27] of the wife’s affidavit:-

   a)W Street, Suburb O     $2,400,000

   b)Wine collection  $1,043,156

   c)T Business (at cost)    $  165,000

   d)Funds from Term Deposit   $  289,000

   e)50% interest in B Group   $2,700,000

   f)Furniture at Suburb O property  $   50,000

   TOTAL  $6,647,156

   Superannuation Entitlements of parties  $  518,016

9. At this stage I am not able to determine whether it is unrealistic for either of the parties to retain the Suburb O property given other property that they seek.

10. It is reasonable that after nearly two years of litigation the parties be ordered to file applications setting out the orders they now seek.

11. In Davis & Davis (1976) FLC 90-062 the Full Court considered the criteria to be applied before making an order for sole use and occupation at 75,309:-

    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.

12. Carmichael J in Plowman v Plowman (1970) 16 FLR 447 at 457 considered the matters may be relevant to making an injunction for exclusive use and occupation:-

    (a)Can the wife be adequately housed elsewhere?

    (b)Is the money available, either from the wife’s own resources and/or her husband’s, to provide that housing?

    (c)For whom, husband or wife, is it less inconvenient to have to live away from the matrimonial home?

    (d)What are the interests of any children of the parties and what order would be in their paramount interest?

    (e)What are the relevant proprietary rights of the spouses?

    (f)Would a non-molestation order be an appropriate alternative to an order for expulsion?

    (g)Is there possible use of improper methods either by way of intimidation or fraudulent condonation to prevent the wife from pursuing her rights, if the spouses continue to reside in the one home?

    (h)The possible injustice of forcing a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause.

13. The extent of the relevant considerations should not be considered exhaustive as discussed in Jolly & Jolly (1978) FLC 90-458 at 77,334:-

    It is to be noted that the Full Court did not attempt to summarise all the considerations but merely some of them. Nor did the court decide that more emphasis should be placed on one than another. What has to be considered is all the circumstances listed above together with other matters which might be relevant in a particular case. In a particular case perhaps more emphasis should be placed on one consideration than another or all the others in deciding what is proper in the circumstances of the case remembering, of course, that the decision should not depend merely on “the balance of convenience issues”.

Wife’s position

1. The wife argues that she could not have anticipated that the litigation would still be unresolved two years after the parties’ separation with the resultant uncertainty of her accommodation.

2. She contends that the husband has always understood she would wish to retain the Suburb O property and she considers that the husband’s resistance is motivated by a strategy to force a resolution of the proceedings.

3. The wife is the sole registered proprietor of the property and given that her financial circumstances are entirely beholden to the receipt of payments made by the husband, she does not have any security of accommodation.

4. The wife refers to her financial statement and highlights that whilst her average weekly income is $2,659 derived from the parties’ interest in the B Group of Companies, her expenses are in the sum of $3,730 per week, principally as a result of the discretionary expenditure for the children estimated at $1,602 per week.

5. The children attend a private school in the vicinity of the Suburb O property.

6. The husband and his partner do not need a five bedroom home in which to reside. Moreover, the husband concedes that he is absent from the property for considerable periods during the year, but principally coinciding with vintage and overseas marketing trips. During the periods of absence from the home, the husband’s partner remains in the property.

7. The wife is also concerned as to her ability to pay the rental over her current premises if she is required to re-lease for a further period of 12 months.

Husband’s position

1. The husband argues that the wife has manipulated the urgency of her circumstances by filing her application only a few days before the expiration of the R Street property lease.

2. The R Street property is available for a further 12 month lease and by reference to Exhibit “1” which provides a description of the property, it is entirely suitable for the wife and children pending the resolution of the proceedings.

3. For his part, the husband considers it would be unreasonable and unnecessary for him to vacate the Suburb O property at short notice in circumstances where the wife’s assertion of urgency is confected.

4. He does not accept that there is any significant financial benefit to be gained by the wife resuming occupation of the Suburb O property and the husband thereafter having to find rental accommodation with all of the attendant costs.

5. The wife is concerned that the further amount of $480 per month paid by the husband for a period of 12 months will not continue if the wife is required to further re-lease the property at $990 per week.

6. The husband agrees that of the $990 per week in rent, he pays an additional sum of $120 per week.

7. I also note that whilst the husband controls the substantial distribution from the B Group of Companies, he states that he has no surplus income after taking into account his outgoings, but in particular expenses in respect of the children including school fees and ancillary expenses.

Conclusion

1. At present there is uncertainty as to whether the parties will avail themselves of the opportunity for an expedited hearing.

2. Whilst I do not consider that the wife’s application is without merit, that must be tempered by the difficulty created by her application being brought as a matter of urgency.

3. The wife is able to re-lease the R Street property for a further period. It may be that a shorter lease can be negotiated, or that if the wife is required to take a lease for a further period of 12 months, the parties may need to bear the responsibility for any loss if the wife seeks to depart from the R Street property before the expiration of the lease.

4. It is also reasonable that the husband be required to continue his contribution to the R Street rent for the duration of any renewed lease period.

5. The reality of the situation is that the husband has remained in the property for two years. Whilst I suspect that the husband well understands that the wife has a strong desire to return to the Suburb O property, the precipitous nature of the wife’s application would speak against an order being made in her favour for sole use and occupation in circumstances where her current accommodation is both generous in its floor plan and convenient in its location.

6. I propose to dismiss the wife’s application for sole use and occupation conditional upon the husband supplementing the wife’s rent by the further sum of $120 per week. The parties are to file amended proceedings.

7. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 31 May 2019.

Associate:

Date: 31 May 2019