Valentini & Valentini

[2024] FedCFamC1F 602

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Valentini & Valentini [2024] FedCFamC1F 602

File number:

SYC 4623 of 2024

Judgment of:

SCHONELL J

Date of judgment:

11 September 2024

Catchwords:

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.   

Legislation:

Family Law Act 1975 (Cth) s 114

Cases cited:

Dickinson & Packam [2021] FamCA 298

Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4

Naylen & Naylen [2021] FamCA 392

Division:

Division 1 First Instance

Number of paragraphs:

52

Date of hearing:

6 September 2024

Place:

Sydney

Counsel for the Applicant:

Mr Kelly KC

Solicitor for the Applicant:

York Law

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Pearson Emerson

ORDERS

SYC 4623 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VALENTINI

Applicant

AND:

MR VALENTINI

Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	11 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Pending further order, the wife shall, as and from ten days after the making of this order, have exclusive occupation of the property at B Street, Suburb C in the State of New South Wales (“the Suburb C Property”) to the exclusion of the husband.

2.The husband be permitted to remove from the Suburb C Property his personal possessions and personal papers by attending on a date and time as agreed between the parties within 30 days from the date of these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valentini & Valentini has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

1. These are proceedings for interlocutory relief brought by the applicant wife (“the wife”) against the respondent husband (“the husband”) seeking exclusive occupation of their former matrimonial home in Suburb C in the State of New South Wales.

2. The orders as sought by the wife are as follows:

   Exclusive Occupation – [B Street]

   2.That pending further order, the Wife have exclusive occupation of [B Street] to the exclusion of the Husband.

   3.That the Husband be permitted to remove from [B Street] his personal possessions and personal papers by attending on a date and time as agreed between the Parties but otherwise within 30 days from date of these orders.

   Alternative orders –Rent; interim occupation of [B Street] pending location of property

   4.That in the alternative to Order 2 and strictly if Order 2 is not made and without concession: and pending further order:

   4.1the Husband pay as and when fall due by way of spousal maintenance under s.72 of the Family Law Act 1975 the Wife’s rent for a home of an equivalent standard as [B Street] […] up to $8,500 per week;

   4.2until the Wife finds the accommodation contemplated in Order 4.1 the Wife shall remain living in [B Street], and have exclusive occupation of [B Street], until the earlier of:

   4.2.1the Wife securing the rental accommodation and having purchased furniture and contents which is delivered to the said home;

   4.2.2or 6 months from date of these orders, whichever is earlier;

   4.3the Husband pay the sum of $100,000 to the Wife’s nominated bank account within 7 days to enable the Wife to purchase furniture and pay removalists expenses;

   4.4the Wife be permitted to remove from [B Street] her personal possessions, furniture and chattels within 30 days of having signed a rental agreement on another premises.

3. The husband opposed an order for exclusive occupation, contending the parties should continue to occupy the property together. Enquiries made with senior counsel for the husband revealed that in the event an order was made granting the wife exclusive occupation, he would need 60 days in which to vacate the property.

4. In relation to the alternative relief sought by the wife, the husband contended that rather than $8,500 per week pursuant to order 4.1, there should be a payment of $4,000 per week by way of rental. He contended that the Court should not make an order requiring him to pay the wife $100,000 to enable her to purchase furniture and that in lieu of order 4.4, the parties should divide between them the furniture in the home. He otherwise agreed with the balance of her alternative relief.

5. The wife relied upon the following documents:

   (1)Amended Initiating Application filed 27 June 2024;

   (2)Affidavit of wife filed 18 June 2024;

   (3)Affidavit of Dr E filed 20 June 2024;

   (4)Affidavit of Dr D filed 25 June 2024

   (5)Affidavit of wife filed 3 September 2024;

   (6)Financial Statement of wife filed 3 September 2024;

   (7)Affidavit of Dr F filed 5 September 2024;

   (8)Affidavit of wife filed 5 September 2024; and

   (9)Case Outline document filed 5 September 2024.

6. The husband for his part relied upon the following documents:

   (1)Response to Initiating Application – Interlocutory Orders filed 2 September 2024;

   (2)Affidavit of husband filed 2 September 2024;

   (3)Financial Statement of husband filed 2 September 2024; and

   (4)Case Outline document filed 5 September 2024.

   BACKGROUND FACTS

7. The wife is aged 58 years, the husband is aged 70 years.

8. The parties commenced cohabitation and were married in 1984 and separated on a final basis in or about August 2022. There are no children of the relationship under 18 years.

9. The current applications are part of wider financial proceedings that first commenced on 18 June 2024. The parties are at issue as to how their matrimonial assets should be divided. There appears to be at least common ground that the net pool of assets is not less than $200 million.

10. At that hearing, orders were made by consent that provided for a payment to the wife by way of spousal maintenance of various sums of money as well as an order providing for the division of the proceeds of sale of a property which it is anticipated will provide at least $4 million, if not more, as an interim distribution to each of the parties. I have also briefly had regard to each of the parties’ Financial Statements and note there can be no issue that the parties have the capacity to be able to obtain rental accommodation of up to the amount that the wife contends in the terms of her alternative order.

11. The evidence reveals that the parties had been living in separate houses since approximately 2021, with the wife residing in a property at Suburb G whilst the husband remained residing in the property at Suburb C. The circumstances in which the parties came to reside in separate accommodation do not largely seem to be the subject of issue.

12. In that respect, I note that the wife in her affidavit filed 18 June 2024 set out how she came to reside in Suburb G. The husband had the opportunity to respond to her affidavit. His affidavit contains the following paragraph:

    8.I have read [Ms Valentini]’s Affidavit. Due to the interim nature of these proceedings. I have only addressed or responded to some of the matters necessary on an interim basis. Where I do not respond to an assertion in [Ms Valentini]’s Affidavit, I do not concede the truth of those assertions.

13. Clearly, the issue in relation to occupation of the former matrimonial home was informed in part by the circumstances of where the parties came to live beforehand. The husband well knew it to be an issue.  He has elected not to engage with the issue.

14. In her affidavit, she contends as follows:

    12.In about […] 2021 we bought a property at [Suburb G]. We bought it on the basis that it is and will be a block to build our weekend and holiday home. The [property] on the site is run down. It is not water tight, has no comforts such as air con or heating […]. In […] 2021, I travelled to the [Suburb G] property. Whilst I was there, Sydney was sent into lock down for Covid 19. I only went […] to [Suburb G] with an overnight bag of limited clothing and personal toiletries. When Sydney re-opened, I could not return to the [Suburb C] home as our [businesses] are located all over Sydney from [Region J], [Region H] to [Region K]. Our head office is at [Suburb L]. […]. Because [Mr Valentini] travels around all the [businesses] and I [have a chronic disease], I begged [Mr Valentini] not to travel for work or if he does that he wear a mask and wash his hands prior to entering the home so as to allow me to return home to [Suburb C]. He agreed but I discovered that he was not wearing a mask or following safety precautions. This forced me to remain in [Suburb G] to remain healthy and not catch Covid 19. In the meantime we separated. I wanted to return home but in late 2022, he employed a painter to paint the inside of the home. The painter took months to complete the painting. Again I was unable to return to the home. From last year I continually requested that I return home and [Mr Valentini] leave but he has refused. He has always said that he is happy to share the space ie that we live in the same home. I cannot do this as [Mr Valentini] and I cannot communicate and he has established a new relationship and his girlfriend or partner attends the home.

    13.Since our separation, I have returned to [Suburb C] on occasions to collect some of my personal items. However, I have reached the stage where I can no longer continue to live in the [Suburb G] property which is very run down. [In] 2024 I returned to [Suburb C]. [Mr Valentini] went away [in] 2024 to [Country M] and as far as I am aware he will be there until [later in] 2024. [Mr Valentini] is staying at our home in [Country M] […]. 

15. For the purposes of this application, I accept what she says.

16. The wife contends that the Suburb G property is unsuitable for her to reside in and that it is too far from her various medical practitioners such as to make it unsuitable for her to reside in it on a permanent basis, albeit that the husband puts in issue the state of habitation of the Suburb G property.

17. The state of the wife’s health is recorded in various medical reports by medical practitioners on her behalf. In that respect, her general practitioner, Dr F, records in a report dated 4 September 2024 the following:

    3.        [Ms Valentini's] diagnosis;

    [Ms Valentini] suffers from numerous conditions, as is often the case with chronic […] disease. She has previously been diagnosed with [a] condition […] which is essentially [a] disease with numerous varying physical symptoms, but essentially causing [Ms Valentini] chronic pain and fatigue. At times, she requires medications that leave her [unwell] (e.g. [A prescribed medication] periodically and in the past other […] medications).

    Other diagnoses include [another medical condition] (secondary to treatments and complications of her chronic […] disease) […], anxiety and depression. She suffers with [further medical issues], but of which have been acutely exacerbated in recent times. She is also currently awaiting diagnoses (I have not yet received […] correspondence) relating to [a condition] that has required [testing], as well as abnormal […] findings requiring further [tests] (I understand this to possibly investigate for […] features [of another disease], however I am still awaiting these reports).

    I have also had to provide intermittent treatment for [other conditions] that required treatment to avoid [medical intervention].

    4.        [Ms Valentini’s] prognosis;

    Whilst [Ms Valentini] conditions above are not currently life threatening, they are likely to contribute to her overall morbidity and I have certainly witnessed their impact to date. Thankfully none of them are causing any [severe symptoms], however if she does not adequately continue to treat them and not partake in the regular preventative health care, then they will eventually lead to a shortened life span.

    …

    6.Assuming that our client has been staying in a home in [Suburb G] which home does not have air conditioning or any heating; is not insulated, wind travels through it and has mould due to it being not watertight or airtight. Are you able to comment or provide an opinion about the impact of such an environment on [Ms Valentini's] health condition and whether such environment or conditions that she is living under would affect or exacerbate her medical issues.

    Yes, I believe conditions that are contributing to mould growth within her home is of significant concern to her health. I understand that her current accommodation in [Suburb G] is very run down and […] there is now significant water damage that has caused black mould. This would be detrimental to anyone’s health, but particularly I can confirm that I have already treated [Ms Valentini] for conditions […] that [are] most commonly attributed to environmental conditions such as this. I can also confirm that when she moved back to [B Street] in [Suburb C], her symptoms significantly improved. Whilst [Ms Valentini] might have an underlying predisposition to be vulnerable to [certain health problems], I have no doubt that it has been triggered/exacerbated by the conditions of her accommodation at [Suburb G]. In general, inflammation in the body will be exacerbated by mouldy conditions, thus worsening her underlying [medical] conditions. I have advised her on numerous occasions that getting away from the mould and being in accommodation better insulated and air tight would be more appropriate for her health.

    7.Assume that [Ms Valentini’s] network of friends and relatives and medical specialists are located within [Sydney] or the [Suburb C] area but she remains living in [Suburb G] and noting the travel and distance from [Suburb G] to [Suburb C] and or to [Sydney], please provide your opinion as to the impact on [Ms Valentini] being able to access services she requires for her medical condition or being able to travel regularly between [Suburb G] and [Sydney] and/or [Suburb C] having regard to her medical condition and needs.

    I can confirm that [Ms Valentini] has already tried to make the arrangement of living in [Suburb G] work for her medical appointments, and it has been unsuccessful. Firstly, the accommodation worsens her underlying chronic conditions as noted above, making her feel too unwell to be able to drive even short distances. Often she will not leave the property for several days at a time as a result. Secondly, even if she is well enough to drive, the distance to [Region O/Sydney] and back means that the drive is quite long. In addition to the time taken for appointments, it is extremely fatiguing and thus [Ms Valentini] finds she is unable to complete this. I find it an unreasonable distance for her to travel several times a week to access appointments and have advised her not to drive when feeling unwell, for obvious safety reasons. I note that often her symptoms are […] most unsafe for driving […].

    8.If [Ms Valentini] has had to cancel medical appointments to address her medical and health issues over the last 2 years due to the distance between [Suburb G] and her appointments in [Sydney] or around [Suburb C] due to her health, what would be the impact on her prognosis in the medium term and in the long term.

    I have been aware of numerous appointments being cancelled for [Ms Valentini] due to her ill health. I can already tell that this has delayed her access to medical care on numerous occasions, and often has extended waiting times if she was too unwell to get to a specialist appointment that she already had long wait times for. This would most certainly worsen her prognosis in the medium and long term.

    Since the short period of time that she has lived locally again, she has made more rapid progress with her appointments and thus her conditions/symptoms have started to improve, as she has been able to sustain more regular visits to her medical team and allied health care specialists.

    9.Any other matter or factor that you believe is relevant to [Ms Valentini] noting that she seeks to return to live in her home at [Suburb C] noting that she is currently staying at [Suburb G] given her physical health issues, psychological, emotional issues.

    I strongly advocate for [Ms Valentini] to optimise her living conditions to ensure that she is closer to her medical providers and social supports as well as to reduce travel time which exacerbates her fatigue and chronic conditions. I am also significantly concerned about her psychological state, and feel that living more locally will help this…

18. In a further report dated 4 September 2024, Dr F records the following:

    In conclusion, I strongly recommend that [Ms Valentini] remains in the [Suburb C]/Region O] area to ensure continued access to her established health care team and specialised services. Ideally this would be in her home at [B Street], [Suburb C] but alternatively in other accommodation near by. Relocation would significantly impede her ongoing treatment and potentially reverse the positive health outcomes achieved thus far.

19. Dr D, a consultant physician, prepared a report on behalf of the wife dated 17 June 2024. In that report she records:

    2.        Details of the treatment undertaken by you for [Ms Valentini].

    [Ms Valentini] has had [a chronic] disease requiring past [treatments]. She originally presented with a cluster of physical symptoms [and] abnormalities […] but without end organ […] damage. She was originally treated with [prescribed medication] but at the suggestion of [Dr N], whose review she sought for a second opinion, she was subsequently treated with [a different medication] and then [another]. She has had one major flare that manifested as [another health issue] where she was treated at [P Hospital] but I don't have details of this admission. In the main her disease has smouldered in the background with main manifestation being tiredness to the point of exhaustion but without evidence of major organ damage.

    By virtue of her phenotype and exacerbated by the use of [a certain medication], she developed [further health issues] and then [a disease] initially requiring [one medication] but subsequently being managed with [another]. She has had no [further] complications […] but I am unaware whether she has kept up with her [medical] reviews. She has also developed [another condition], initially severe, and has since required requiring [treatment]. She has [a health issue] and requires [other medication] for her various […] pains. She also has a history of [other health problems] requiring [ongoing medical attention].

    She had [surgery] in 2015 and has also been on pain modifying agents […]. She has [another condition] and has been taking a number of [medications]. She also has difficulty sleeping and hence takes regular [medication]. She recently developed 'dizziness' that has been fully investigated by [Dr Q] and no […] cause was found. He stronglyt [sic] recommended psychological support, which I too have advocated for. She had previously seen a psychologist in the early 2000's but had not continued with psychological intervention to cope with health and increasing life stressors.

    3.        [Ms Valentini’s] diagnosis.

    [Ms Valentini’s] diagnosis is that of underlying [chronic] disease most likely [a medical condition] with [various] associated [health issues] and I suspect an overlay of depression and anxiety exacerbated by the current legal proceedings.

    4.        [Ms Valentini’s] prognosis.

    [Ms Valentini] has normal organ function in that she has normal kidney function, normal liver function and no evidence of […] heart disease. However, she does have [several medical issues] complicated by [her physical condition] which increases her long term [health] risk. Overall her prognosis is good but potentially mildly by her comorbidities. I would still consider that she will live into her eighties, but […] complications may ensue.

    …

    6.Assuming that our client has been staying in a home in [Suburb G] which home does not have air conditioning or any heating; is not insulated, and wind travels through it. Are you able to comment or provide an opinion about the impact of such an environment on [Ms Valentini's] health condition and whether such environment or conditions that she is living under would affect or exacerbate her medical issues.

    You ask about the environment in which she is living. Of course, accommodation that doesn't have any air conditioning or heating is uncomfortable but it would not have a significant physical effect on [Ms Valentini’s] illness. She does find that environmental triggers can cause additional pain but there is no evidence base for this. This does not in any way mean that this is not a real phenomenon with [Ms Valentini]. Obviously it means it hasn't been investigated.

    She is not currently [unwell] and her [disease] is relatively well controlled so it shouldn't lead to increased risk of [poor health]. 

    7.Assume that [Ms Valentini’s] network of friends and relatives and medical specialists are located within [Sydney] or the [Suburb C] area but she remains living in [Suburb G] and noting the travel and distance from [Suburb G] to [Suburb C] and or [Sydney], please provide your opinion as to the impact on [Ms Valentini] being able to access services she requires for her medical condition or being able to travel regularly between [Suburb G] and [Sydney] and/or [Suburb C] having regard to her medical condition and needs.

    As far as I am aware [Ms Valentini] has not been accessing services. She hasn't seen me in person for some time given she hasn't been able to travel between [Suburb G] and [Region O]. I think this has an impact on her physical and emotional health. Her blood tests are all reasonable but she reports in general being more 'unwell'.

1. On 28 June 2024, orders were made by consent listing the matter for interim hearing on the issue of exclusive occupation and interim financial relief. Orders were also made by consent regulating their joint occupation of the home as follows:

   3.From […] 2024 (when the Respondent returns from [Country M]), each of the Applicant and Respondent are permitted to reside in [B Street] pending the Court's determination of the Applicant's interim application for exclusive occupation of the said property on the basis that:-

   3.1.the Respondent occupy the bottom level (where his bedroom is located);

   3.2.the Applicant will occupy the top level of the home; 

   3.3.the parties share the use of the laundry facilities; 

   3.4.neither party is permitted to have any third party invitee come to the property except by prior written consent of the other party.

2. The wife contends in her affidavit filed 3 September 2024, that the husband has not complied with those orders in that he has entered the kitchen and various other parts of the home occupied by the wife. In that respect, the wife says that in 2024 the husband marched into the kitchen, she jumped up and felt vulnerable. She then refers to a conversation between her and the husband where she told him he was not to be in that area of the home. She says that the husband appeared angry. She recites further incidents in 2024 where she contends that the husband, contrary to the orders, entered into various parts of the home. She says she felt scared and intimidated by the husband’s behaviour.

3. She also refers to an incident in 2024 and the need for a table for use by the husband. The wife contends that there were other incidents in 2024 where the husband prevented her access into the driveway of the home by placing an object across the driveway and when she tooted the horn at him and pointed to the object he swore at her. Given the timing of the filing of that affidavit, the husband’s responses are not before the Court.

4. That said, the husband in his affidavit filed 2 September 2024 says as follows:

   31.The former matrimonial home is situated on a [large] block. The house has [multiple] levels, […] bedrooms, […] bathrooms, 1 kitchen, a kitchenette on the bottom level and numerous formal and informal living rooms. During COVID in 2020, when [Ms Valentini] and I were still together, at [Ms Valentini’s] request I moved into the bottom level of the property which is a self-contained level with a kitchenette and bathroom and [Ms Valentini] occupied the top level of the property, which is where the master bedroom and double ensuite bathroom is located. The main kitchen and the laundry are located on [another] level. In the period since 2020, my bedroom has remained on the bottom level.

   32.It is possible to live in the home without coming into regular contact with one another. The only times where we may see each other is if we are using the […] main kitchen (which I need to use to store food including in the freezer and cook from time to time) and laundry facilities. Many of my clothes are still on the top level (as there is not enough cupboards space on the bottom level), so I do seek that I be permitted to access the top level to obtain clothing on the odd occasion but have no objection to [Ms Valentini] being present when I so. I am also at work from around 4am to 10pm Monday, 7am to 8/9pm Tuesday to Friday and on weekend from 6am to 11am. There is ample space for us to live separately…

   SUBMISSIONS ON BEHALF OF THE WIFE

5. King’s Counsel for the wife submitted the evidence revealed that the wife initially stayed in the Suburb G property as a consequence of Covid-19 and was advised by her medical practitioners that if she left it would compromise her health and she could potentially die. He also submitted that the wife’s continued occupation of the Suburb G property had however inhibited her ability to access medical treatment and that the state of the property meant it was barely habitable. This explained why she returned to live in Suburb C.

6. King’s Counsel submitted that it was untenable for the parties to continue to jointly occupy the same home and it has caused the wife to feel intimidated. He pointed to conduct of the husband which had caused distress to the wife, some of which whilst petty was also deliberate. In circumstances where the wife’s medical practitioners were located in Region O and that there is less stress occasioned to the wife by remaining in the home as opposed to moving, it was almost punitive for the wife to have to vacate the home.

7. Whilst the wife at one stage may have proposed selling the Suburb C property, he submitted her application on a final basis seeks to retain the property.

   SUBMISSIONS ON BEHALF OF THE HUSBAND

8. Senior counsel for the husband submitted that whilst the wife has various medical complaints, they are not on the serious side, and she could move to other accommodation should she wish to do so. She conceded that whilst the current living arrangements are not perfect, both parties could continue to live together in the Suburb C property.

9. In the event that the Court has to choose between one of them, senior counsel for the husband contended that it is the husband who should be allowed to remain. He has remained there consistently in the period post-separation whilst the wife moved out for a number of years. He is the person between the two of them who is engaged in full-time employment and that there is a significant imposition upon him, given that he works six days per week, in having to find alternative accommodation.

10. Senior counsel also submits on behalf of the husband that he has consistently said that he wishes to remain living in the Suburb C property and retain it is part of his property settlement whereas the wife had in the past described it negatively and had sought its sale. She also points to the wife having lived in various other locations other than Suburb G. In relation to the wife’s various medical needs, senior counsel on behalf of the husband submitted that they were not so bad that they inhibit the wife from being able to go on holidays or inhibit her ability to look for alternative accommodation.

11. She submitted that the balance of convenience favoured the husband remaining in the property and that if the wife wished to move out then the husband’s provision of $4,000 per week was, in all the circumstances, a reasonable sum of money.

    EXCLUSIVE OCCUPATION

12. The power of the Court to grant an injunction for exclusive use and occupation rests in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It involves the exercise of a discretion, and an order will be made if it is proper to do so.

13. Section 114 of the Act relevantly provides that:

    (1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such 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.

    …

    (3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

14. In Mullane v Mullane (1983) 158 CLR 436, the High Court distinguished that "an interest in property is a right of a proprietary nature, not a mere personal right". The High Court observed that, "an order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property…"

15. In Naylen & Naylen [2021] FamCA 392, McEvoy J canvassed the authorities relevant to this type of application and observed:

    29. The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling. These principles have been the subject of frequent exposition in the Full Court and application by primary judges. They may be summarised as follows:

    (a) the Court may make such an order as it thinks proper: Davis & Davis (1976) FLC 90-062, 75,309 (Evatt CJ, Pawley and Ellis JJ);

    (b)there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be "proper". A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it: S & S [2002] FamCA 59, [40] (Kay, Holden and Monteith JJ);

    (c)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: S & S, [38];

    (d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order: S & S, [41];

    (e) the Court does not need to make a finding that the situation in the former matrimonial home is "intolerable" or "impossible", it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together: Rowe & Rowe (1980) FLC 90-895, 75,639-75,640 (Evatt CJ), 75,644 (Pawley SJ), (cf Wood SJ at 75,643); Davis & Davis (1983) FLC 91-319 , 78,170 (Baker J, with whom Evatt CJ and Underhill J agreed);

    (f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order: Davis & Davis (1976), 75,309; Rowe & Rowe, 75,640 (Evatt CJ), 75,644 (Pawley SJ);

    (g) the test for making an order for exclusive occupation is an objective one, Rowe & Rowe, 75,644 (Pawley SJ);

    (h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen: Walker v Walker (1978) 1 WLR 533 , 536-537, cited with approval in Rowe & Rowe, 75,638-75,639 (Evatt CJ), 75,642 (Wood SJ) (albeit that his Honour appears to have referred mistakenly to Phillips v Phillips (1973) 1 WLR 615 , in circumstances where it may be inferred that, like Evatt CJ, he meant to refer to Geoffrey Lane LJ in Walker v Walker );

    (i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together: Bassett and Bassett [1975] Fam. Law 76 , 87, cited with approval in Rowe & Rowe, 75,639 (Evatt CJ), 75,642 (Wood SJ);

    (j) while the decision ought not be made merely on the balance of convenience: Davis & Davis (1976), 75,309, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home: Dean & Dean (1977) FLC 90-213 , 76,097 (Wood J), referring to Davis & Davis (1976);

    (k)it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened: Dean & Dean, 76,098.

    30. In Fedele & Fedele (1986) FLC 91-744, 75,431, the Full Court (Fogarty, Murray and Nygh JJ) emphasised that these principles should properly be treated as guidelines to assist in the exercise of the important discretion given under s 114(1), and that they should not be seen as laying down any fixed list of criteria which must be established for the application to be successful. A judge must exercise his or her own discretion in the matter, informed by the Court's previous consideration of the issues.

16. These are interim proceedings and there has been no cross examination. There are numerous factual controversies, which I am in the circumscribed nature of these proceedings unable to resolve. I am left to determine the matter on the basis of the undisputed facts and consistent with the guidance provided by the authorities referred to above. 

17. In Dickinson & Packam [2021] FamCA 298, McClelland DCJ observed:

    25.In my view, it is appropriate for the Court to consider an application for orders for the exclusive occupation of a property in two stages. The first stage involves considering whether the circumstances of the parties are such that an order for exclusive occupation is necessary. If the answer to that first question is in the affirmative, the second question involves considering which party should have the right of exclusive occupation.

18. I propose to adopt such an approach.

19. I am satisfied in light of the medical evidence and the wife’s medical conditions it is untenable for her to return to live in the Suburb G property.

20. I am satisfied that the circumstances are such that there is a necessity to make an exclusive occupation order. I reach that conclusion in circumstances where it is clear that despite orders made on 28 June 2024 that were designed to regulate their living arrangements, these parties do not have the capacity to live together in accordance with a regime of orders they agreed to. It is clear from the husband’s affidavit that he seeks to access various parts of the home to be enjoyed by the wife. The wife contends that he failed to comply with the orders by entering into aspects of the home he was not meant to enter. It is further clear from the husband’s proposals that he wishes to be able to continue to access parts of the home for the purposes of accessing his personal possessions and clothing.

21. It is inexplicable as to why it is that these parties, who have so much money, are simply not able to arrange their living arrangements such that they do not come into contact with each other in a home of the proportions and size described by the husband. It was well within the husband’s financial capacity to buy himself a table, to remove his clothing and, if necessary, buy further furniture to ensure that he did not come into contact with the wife. He chooses not to. I accept the wife’s evidence that she finds interaction with him intimidating and scary.

22. In circumstances where one party seeks to continue an arrangement that would continue to bring the parties into contact in the knowledge that it causes the other at times to feel intimidated is unfathomable and leads me to be comfortably satisfied that it would not be reasonable, sensible or practicable to expect both parties to continue to live together in the same home and that an order for exclusive occupation is necessary.

23. There is not, nor could there be, any issue where the parties have net assets of at least $200 million that issues such as financial hardship or prejudice have any part to play. I am satisfied that each have the financial means to accommodate themselves in alternate homes. I am also satisfied that each will be able to find satisfactory alternate accommodation.

24. I also recognise that an injunction prohibiting a person from living in their own home ought only be granted in circumstances where it is proper to do so and where the balance of convenience warrants its making.

25. I am satisfied that the balance of convenience favours the making of an injunction in favour of the wife and that it is proper that it is the husband who is the one who should leave the home.

26. As between the husband and the wife, it appears that it is the husband who is less often in the home than the wife and therefore requiring him to move to another property provides less of an imposition upon him than it would upon the wife who obviously spends more time in the property than him.

27. The husband’s senior counsel submitted that the husband has limited time in which to find alternative accommodation given that he works six days a week on a full-time basis. Given the wealth of these parties, if that is really a serious contention then the husband has the financial capacity to retain someone to search for a suitable accommodation. I also note that notwithstanding this submission, he has been able to access information about various rental properties and to attach that information to his affidavit. Where he regards these properties as suitable for the wife to occupy then they must by logical inference be suitable for him to occupy.

28. I note that each party seeks to retain the Suburb C property on a final basis. The making of an order for exclusive occupation does not defeat an order being made. I accept the wife’s explanation as to the circumstances in which the wife came to be living in Suburb G and then returned to Suburb C.

29. I do not accept the submission of the husband’s senior counsel that the wife’s medical conditions are not serious. I accept the evidence of her doctors and in particular that of Dr F where she says that ideally it would be preferable for the wife’s health for her to remain in the property at Suburb C and her opinion that relocation would significantly impede her ongoing treatment and potentially reverse the positive health outcomes achieved thus far.

30. On balance I am satisfied that any scenario that has the potential to compromise her treatment and health is one that is to be avoided. On balance I am satisfied for the above reasons that it is proper that an order be made for the wife to have exclusive occupation of the Suburb C property. In those circumstances it is unnecessary to consider the wife’s alternate relief.

31. It remains to determine how long the husband should have to vacate the Suburb C property.

32. The wife’s orders provided for her to have exclusive occupation forthwith but gave the husband 30 days to remove his personal possessions. His senior counsel proposed that he would require 60 days. I am not satisfied that the husband needs such a lengthy period of time. I am satisfied that a period of ten days is more than sufficient for the husband to vacate the property given these parties significant wealth and the wife’s health issues. He will, under the wife’s proposed orders, still be able to arrange collection of his personal possessions and clothing within 30 days. He must however physically vacate within ten days.

33. I am satisfied that orders to this effect are proper.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       11 September 2024