Tup and Tao

[2008] FamCA 228

FAMILY COURT OF AUSTRALIA

TUP & TAO [2008] FamCA 228

FAMILY LAW – PROCEDURAL – Application by wife for sole use and occupation adjourned at the insistence of the husband who sought to raise other issues which were, it was argued by the wife, adjusted earlier by consent between the parities – Order made for costs in favour of the wife.

Family Law Act (1975) (as amended)

Johnson v Johnson (2000) 201 CLR 488 at 493

APPLICANT: Ms Tup

RESPONDENT: Mr Tao

FILE NUMBER: MLC 12698 of 2007

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Moores Legal

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Rose Chai

Orders

1. That the Application in a Case filed by the wife on 22 November 2007 and the Response to an Application filed by the husband on 18 December 2007, insofar as they relate to sole use and occupancy and children’s matters be adjourned for hearing and determination in the Judicial Duty List at 10.00 am on 18 April 2008.

2. That the husband do cause to be filed any further affidavit material upon which he may seek to rely not later than 8 April 2008 AND THAT the wife do file and serve any further affidavit material in response or that upon which she may seek to rely not later than 14 April 2008.

3. That the husband to pay the wife’s costs thrown away this day and fixed in the sum of $1,650 AND THAT the said costs be paid within seven days of this date.

IT IS CERTIFIED

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Tup & Tao is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12698  of 2007

Ms Tup

Applicant

And

Mr Tao

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List.  When I prepared the Judicial Duty List for this day, it was apparent, as seen from the relevant material on the court file that I was dealing only with a sole use and occupation application by the wife in respect of the former matrimonial home at N. This property was vacated by the wife following the separation between the parties, which, as I understand it, was on or about 19 September 2007.

2. The wife deposed that she currently lives in a small home with her parents and shares one bedroom with the two children of the marriage, namely D, who was born in March 1999, and N, who was born in April 2001.  It appeared to me at that stage, in relation to a preliminary view expressed by me (see Johnson v Johnson (2000) 201 CLR 488 at 493) and accepting the onus was upon the wife to establish a case for the exclusion of the husband from the former matrimonial home and having regard to (inter alia) the application of the balance of convenience and its relevance to the application, that she may have demonstrated a sound argument that it was reasonable, sensible and practical to expect that she should occupy the property until further order. This being particularly so following orders that were made on 28 February 2008 in relation to the child welfare matters that, broadly, provided for the children to spend four days each fortnight with their father and 10 days each fortnight with their mother. However, I accept that there may be other facts and circumstances that are yet to be brought to bear that may balance off that preliminary view.

3. When the contested application commenced before me this morning, Ms Stoikovska continued to appear for the applicant wife and Ms Smallwood now appears for the husband.  In the course of argument, Ms Smallwood made an application, relying in part upon the fact that the husband was Cambodian (albeit he spoke English and swore his affidavit in English) that he did not understand that paragraph 7 of the Orders made on 28 February 2008, which provided for the wife's application for sole use and occupation of the former matrimonial home to be adjourned to the Judicial Duty List this day, was the only issue before me. 

4. That caused Ms Stoikovska some visual surprise, because in her submission she made it quite clear that she had negotiated this issue with Ms Spehr, who appeared for the husband on 28 February 2008 and that all of the children's issues had been settled that day until further order.  However, it has been made clear by Ms Smallwood that her instructions are that such was not the understanding of the husband. 

5. Ms Smallwood further relied upon the fact that there was a Family Report prepared by Ms W released the day before the hearing on 28 February 2008 recommending an “equal time share” between the parties and “warning” (the word used by Ms Smallwood) of alienation of the children from their father.  I understand from further submissions of Ms Stoikovska that there are other aspects of that report that may warrant some comment later in the course of the journey of this case through the litigation phase.

6. Ms Smallwood made it clear that the husband desired to pursue the children's issues and it was conceded by Ms Stoikovska that the welfare issues between the parties were "alive and well," to use her words.  Ms Smallwood also made it clear that the husband's belief was that the children's issues were still open for this day.  She also relied upon a copy letter, that apparently was provided to her instructor and was written by the wife's instructing solicitor, to a Dr L.  Ms Smallwood made the obvious point that it appeared to be a fairly “one‑sided description” of events to Dr L. 

7. However, what is clear is that the intent of the wife's solicitor at that time was for the parties to seek "family therapy" from Dr L, understanding his fee was $250 per hour (including GST), which cost would be shared equally by the parties.  I rather suspect there must have been some verbal communication between the wife's solicitor and the husband's solicitor in relation to this.  But be that as it may, it is not the sort of letter that one would write jointly in putting a factual base to a family therapist.  That letter may well come under some scrutiny later in the course of the case. 

8. Ms Stoikovska argued that the court order made 28 February 2008 only adjourned to this day the issue of sole use and occupation.  That is clear on the face of the order and she came to court this day expecting to debate only that one issue.  This has now been frustrated by the husband's application through Ms Smallwood. 

9. Ms Stoikovska also made it clear that it was she who negotiated “the adjustment” with Ms Spehr on 28 February 2008, that the consent orders were intended to be until further order and that the issue before the Court today was sole use and occupation.  It may be that if this matter blossoms out into issues of credit and contested instructions, it may well involve evidence of counsel, but I would hope not. 

10. Ms Stoikovska submitted that one can infer that the husband “is a person determined to remain in the matrimonial home” as long as he can and, following the material he sought leave to file this day has sought to maintain his stay in the 50‑square, large commodious home for an extended time until decided by the court. 

11. There is now an issue for determination between the parties.  The husband seeks, on an interlocutory basis, equal shared time with the two children.  That will impact upon any consideration by my successor to this case on the sole use and occupation issue. 

12. Ms Stoikovska sought an order for costs this day in the sum of $1650, being her brief fee, and that those costs be paid within seven days.  Ms Smallwood, and properly so in my view, did not resist that application at all. 

13. Doing the best I can and accepting that Ms Smallwood sought a time frame longer than that I propose to allow, it seems to me that with the parties having separated in September 2007 another two weeks or thereabouts will not make much difference between the parties until this issue is determined.  Accordingly, I propose to make orders for the husband to file any further material and the further response by the wife within the time frame I have discussed with counsel.  I will otherwise adjourn the matter to the Judicial Duty List for 10 am on Friday, 18 April 2008. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  10 April 2008