Valentini & Valentini

Case [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…

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AGLC
Valentini & Valentini [2024] FedCFamC1F 602
Case
[2024] FedCFamC1F 602
Decision Date

CaseChat Overview and Summary

In the case of Ms Valentini v Mr Valentini, the wife sought an exclusive occupation order for the former matrimonial home, while the husband opposed this application, arguing that they could coexist under one roof. The Federal Circuit and Family Court of Australia considered the circumstances of the parties and whether an exclusive occupation order was necessary. The wife, aged 58, and the husband, aged 70, were married in 1984 and separated in August 2022. They had been living in separate houses since 2021, with the wife residing in Suburb G and the husband in Suburb C. The wife contended that the husband's failure to follow COVID-19 safety precautions and his refusal to vacate the home forced her to remain in Suburb G. The husband argued that they could coexist in the home, but the wife could not due to their inability to communicate and the husband's new relationship.

The court had to determine whether the wife should be granted exclusive occupation of the Suburb C property. The wife argued that she could no longer live in the Suburb G property due to its dilapidated condition and requested to return to the Suburb C property. The husband, on the other hand, argued that they could share the space. The court considered the parties' capacity to obtain rental accommodation and the wife's affidavit detailing her reasons for remaining in Suburb G. The court found that the wife's reasons for seeking exclusive occupation of the Suburb C property were valid, and the husband's refusal to vacate the home was unreasonable. The court concluded that an exclusive occupation order was necessary to ensure the wife's safety and well-being.

The Federal Circuit and Family Court of Australia ordered that the wife shall have exclusive occupation of the Suburb C property from ten days after the making of the order, to the exclusion of the husband. The husband was permitted to remove his personal possessions and papers from the Suburb C property within 30 days from the date of the order, subject to agreement between the parties. The form of the order was subject to review to correct minor typographical or grammatical errors or to record a variation to the order. This case highlights the importance of considering the safety and well-being of parties in family law proceedings and the need for exclusive occupation orders in certain circumstances.

Orders

Orders of the court

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.

Background

Background to the litigation

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 The wife is aged 58 years, the husband is aged 70 years. 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. 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. 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. 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. 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. 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. 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] […].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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