Trevor and Trevor

[2017] FamCA 955

FAMILY COURT OF AUSTRALIA

TREVOR & TREVOR [2017] FamCA 955

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought exclusive occupation of the former matrimonial home – Where both parties make allegations of family violence against the other – Where the Court is unable to make findings of fact in interim proceedings – Consideration of section 43 of the Family Law Act1975 (Cth) – Court finds that given the allegations of family violence one party must vacate the former matrimonial home – balance of convenience – Orders made for husband to vacate the former matrimonial home – Orders made restraining the husband from entering the former matrimonial home.

Family Law Act 1975 (Cth) ss 43, 114

Jyotisha & Jyotishaand Anor [2016] FCA 738

S & S [2002] FamCA 59

APPLICANT: Ms Trevor

RESPONDENT: Mr Trevor

FILE NUMBER: SYC 1279 of 2017

DATE DELIVERED: 6 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Webb

SOLICITOR FOR THE APPLICANT: Richard Wise Solicitor

COUNSEL FOR THE RESPONDENT: Mr McGrath

SOLICITOR FOR THE RESPONDENT: Hannaford Cox Connellan And Mcfarland

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. As and from 14 November 2017, the Respondent husband is restrained from entering the premises known as Property B (Property B), more fully described in Folio: Auto Consul ….

2. As and from 14 November 2017, the Applicant wife have exclusive occupancy of Property B.

AND THE COURT NOTES THAT:

A. The wife undertakes that the orders made on 11 July 2017 will be complied with so that $500 is released to each party each week.

B. The wife undertakes to release from the parties’ business funds an amount of not less than $5,000 to the husband in the event that the husband wishes to reside in the property known as ‘Property C’ and to apply those funds to bring the property into a clean and habitable condition, on the basis that any account presented to the wife with respect to expenses incurred in achieving that outcome is to be paid within 48 hours of presentation to the wife.

C. The wife will facilitate the parties’ horsefloat being made available to the husband immediately.

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 Trevor & Trevor 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 SYDNEY

FILE NUMBER: SYC 1279 of 2017

Ms Trevor

Applicant

And

Mr Trevor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application by the wife for orders for exclusive occupation of the former matrimonial home. The orders sought are set out in the wife’s Application in a Case filed 25 October 2017 as follows:

   2. Order that the First Respondent, Mr Trevor, is restrained from entering the premises known as Property B (Property B), …more fully described in Folio: Auto Consul ….

   3. The Applicant wife has exclusive occupancy of Property B. 

2. The applications are made under section 114(1)(b) and 114(1)(f) of the Family Law Act 1975 (Cth) (“the Act”).

3. By way of brief background, the husband is now 81 years of age and the wife is 49 years of age. The parties commenced living together in 1996 and married in 2010. They separated on 29 November 2016. The subject property in respect to which orders for exclusive occupation are sought is the Property B. Property B is located on a remote farming property. The husband has been living at the Property B for approximately 36 years. 

4. Prior to moving into the Property B, the husband lived at an adjacent property which he owned and continues to own. That property is known as ‘Property C’. Property C is located several kilometres from Property B. The husband is not able to legally drive a motor vehicle, however, he has the capacity to move between the properties on horseback or by tractor.

5. The husband has a number of health difficulties.  He suffers from glaucoma and he has also has hearing difficulties.  In an accident that occurred during the course of last year, the husband sustained an injury to his right leg. The husband asserts that, as a result of his vision impairment, he would have difficulty residing in premises that are unfamiliar to him.

6. The husband asserts that the wife, at 49 years of age and who is in relatively good health, has much greater mobility. The husband also asserts that the wife has access to funds and credit card facilities insofar as she controls the banking of a farming business that the parties have jointly operated. That business is incorporated as D Pty Ltd. D Pty Ltd owns stock and equipment across both Property B and Property C. The business continues to operate including by way of selling stock when necessary to raise funds.

7. In this matter, the wife has alleged that there has been a history of conduct on the part of the husband which, if established, would constitute serious family violence. This is denied by the husband.

8. The most serious allegations related to an alleged event that occurred in October 2017. The wife alleges that she was the subject of an assault occasioned by the husband resulting in the husband being made a party to an Apprehended Domestic Violence Order.  That matter is listed for mention in the Local Court in November 2017. 

9. The husband, on the other hand, denies the wife’s allegations and says that he was the subject of the wife’s aggression. He has indicated to the Court that he intends to take out an Apprehended Domestic Violence Order against the wife. 

10. I am unable to make findings of disputed fact in these interim proceedings. However, section 43 of the Act states that the principles to be applied by the Court include the need to ensure a party’s protection from family violence.

11. It is evident, however, that one or other of the parties were subject to violence perpetrated by the other in October 2017.  In those circumstances, there is an obligation on the Court to protect each of the parties from the prospect of further violence. In that context, I note that the police report which is annexed to the wife’s affidavit filed on 24 October 2017[1] states:

    Police are concerned with the ongoing issues, the location is extremely isolated and it appears the violence is escalating.[2]

    [1] Annexure DAT3.

    [2] Affidavit of the wife filed 24 October 2017 at page 27.

12. In those circumstances, it is untenable for the parties to continue to reside in the same property. 

13. I am bound by a comprehensive analysis of this issue undertaken by the Full Court in S & S.[3] In that case, the Full Court (per Kay, Holden and Monteith JJ) after discussing several Australian and United Kingdom authorities, said:

    38. An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

    "It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

    39. Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.

    40. There are no words of limitation in s 114 other than the grant of the injunction must be "proper". But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.[4] 

    [3][2002] FamCA 59.

    [4] Ibid at [38] – [40].

14. In Jyotisha & Jyotishaand Anor,[5] Hogan J said:

    In determining the manner in which a court will exercise its discretionary power [to make an order for one or other of the parties to have exclusive occupation of the former matrimonial home], the relief should depend not merely on the balance of convenience of hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought. 

    [5] (2016) FamCA 738 at [15].

15. The husband argued that, in the event of the Court making an order for exclusive occupation, due to his age and health difficulties, to which I have referred, the balance of convenience favours an order for him to have the right to exclusively occupy the Property B.

16. The wife, on the other hand, says that the balance of convenience is in her favour because the financial records and computer equipment relating to the operation of the business is located at Property B and not at Property C. The wife also contended that the husband has greater capabilities than he asserts.

17. The husband further contends that the property located at Property C is not habitable. However, this is disputed by the wife who contends that the home was occupied until April 2017.

18. In these interim proceedings I am unable to determine whether or not the property is or is not presently habitable. However, I do note that counsel for the husband indicated that there is what was described as a “quite luxurious” horse float with independent accommodation that can be attached to house power at Property C if that power is restored. It appears to me that one or other of the parties, at least on a short term basis, could be accommodated in that facility.

19. In considering the respective contentions of the parties, I note, as a matter of relevance, the husband’s age and health difficulties.

20. Also of relevance, however, is the fact that Property C is wholly owned by the husband.[6] On the other hand, Property B is owned jointly by the parties through a shareholding arrangement.

    [6] Affidavit of the husband filed on 3 November 2017 at [4.1].

21. As noted, the Court has a limited ability to make findings of fact in interim proceedings. Nevertheless, having determined that one or other of the parties should vacate the former matrimonial home, a decision needs to made as to which party that should be.

22. I have evaluated the parties’ respective contentions in respect to the balance of convenience and the respective hardship upon each party. This includes the age and health difficulties suffered by the husband. I have also had regard to the fact the wife controls the funds of the business. In that respect, however, it is relevant that on 17 July 2017 orders were made for the parties to each receive ongoing payments of $500 per week from the business. In other words, they both share in its ongoing operation. 

23. Having regard to those matters and also the fact that Property C is owned solely by the husband and, with some repair work, that property presents an alternative accommodation option for him, I am of the view that it is appropriate for orders to be made for the husband to vacate the former matrimonial home. 

24. Noting that the wife has given an undertaking to release, from the business funds, an amount of not less than $5000 to attend to repairs at Property C with a view to making that property habitable, I propose to make orders as sought by the wife.

25. For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 6 November 2017

Associate: 

Date:  27 November 2017