Wachtel and Sabens (No.2)
[2011] FMCAfam 1183
•14 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WACHTEL & SABENS (No.2) | [2011] FMCAfam 1183 |
| FAMILY LAW – Sole use and occupation of a property – whether necessary to make orders to do justice – test of comparative hardship. |
| Family Law Act 1975, ss.4AA(2), 90SS |
| Lenova & Lenova (No.2) [2009] FamCA 1031 |
| Applicant: | MS WACHTEL |
| Respondent: | MR SABENS |
| File Number: | MLC 11482 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing date: | 14 September 2011 |
| Date of Last Submission: | 14 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr McLeod |
| Solicitors for the Applicant: | Kennedy Partners |
| The Respondent appeared In Person |
ORDERS
The hearing of the threshold issue as to the nature of the relationship, listed this day, be adjourned to 10am on 12 June 2012 (the “adjourned date”) for a two day defended interim hearing.
The respondent make, file and serve any affidavit upon which he seeks to rely by no later than 45 days prior to the adjourned hearing date.
Pending the adjourned hearing date or further order:
(a)The applicant have sole use and occupation of the property at Property L, save that in the event that the respondent appoints a real estate agent to act on the sale of the property, the applicant permit that person and/or any other person associated with the sale to enter upon the said property.
(b)During such period of occupation the respondent shall continue to make payment in full of the mortgage over the property and rates, insurance, maintenance and utilities (save the telephone bill).
(c)The respondent be restrained from telephoning, text messaging or sending MMS messages to the applicant.
Within 30 days the respondent is to make full disclosure, including, but not limited to:
(a)His financial position including all real estate holdings.
(b)His interests in his three businesses including but not limited to “[W]” and any other business interest he has.
(c)His income tax returns for the last three years.
(d)The business tax returns and financial statements for all businesses in which he is a stake holder (other than publicly listed companies).
(e)His bank account details and statements for the last three years.
(f)Superannuation statements for the last three years.
(g)The loan application for the property at [L].
(h)Any other reasonable discovery requested by the applicant.
The respondent (Mr Sabens) shall pay the applicant’s cots of this day thrown away in the sum of $2,800.00 for Counsel and $1,650.00 for solicitor’s costs, within 30 days.
Certify for advocacy.
IT IS NOTED that publication of this judgment under the pseudonym Wachtel & Sabens (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11482 of 2010
| MS WACHTEL |
Applicant
And
| MR SABENS |
Respondent
REASONS FOR JUDGMENT
The applicant and respondent are not married. The nature of their relationship is to be determined by the Court.
The respondent purchased a house at Property L (the “property”) where the applicant has lived with her three children since November 2009 (Affidavit of applicant filed 4 July 2011 at [34]). The respondent lived in that house with the applicant and her children from time to time (Ibid at [36]). The relationship between the parties ended on 18 October 2010 (Initiating Application item 27).
Interim orders were made by consent on 23 February 2011 including an order that:
(1)The hearing of the threshold issue be fixed for hearing on 14 and 15 September 2011 before Federal Magistrate Turner.
A hearing took place on 19 May 2011 to consider objections to subpoenas; judgment was delivered on 3 June 2011, providing reasons why various subpoenas were set aside. The material sought was said to be relevant to proving the circumstances set out in s.4AA(2) of the Family Law Act 1975 (the “Act”), which are to be considered by the Court in determining whether people are living together on a genuine domestic basis, and therefore, subject to other criteria, are in a de facto relationship. The information sought was relevant for the purposes of the hearing set down for 14 September 2011.
The respondent filed an Application in a Case on 16 June 2011, seeking that his Application in a Case filed on 22 February 2011 proceed undefended. That application sought an order that the applicant’s Initiating Application filed on 19 December 2010 “be dismissed summarily for want of jurisdiction”, and, if it is not dismissed, the applicant file affidavits particularising the facts, circumstances and contributions she relies on in asserting that she is entitled to an alteration of de facto property interests, and spousal maintenance. The Application in a Case filed on 16 June 2011 was dismissed by consent, by orders on 6 July 2011.
The hearing on 14 September 2011
At the hearing on 14 September 2011, the applicant was represented by Mr McLeod, and the respondent Mr Sabens, represented himself. The matter was stood down to enable Mr Sabens to see the duty lawyer.
The Court has jurisdiction and is being asked, to determine if the parties were in a de facto relationship. In the course of making that determination the Court has power under s.90SS(1)(k) of the Act to “make any other order, or grant any other injunction, (…) which it thinks it is necessary to make to do justice;” and power under s.90SS(5)(b) to “grant an injunction either unconditionally or upon such terms and conditions as the court considers appropriate.”
Having considered the circumstances of the applicant and her need to provide housing for herself and for her children, and the circumstance that the respondent has a house in Perth, the Court decided it was necessary to make an order to do justice, and made an order giving sole use and occupation of the property to the applicant pending the adjourned hearing date (of 12 June 2012) or further order, subject to the conditions:
·That in the event that the respondent appoints a real estate agent to act on the sale of the property, the applicant permit that person and/or any other person associated with the sale to enter upon the said property.
·During such period of occupation the respondent shall continue to make payment in full of the mortgage over the property and rates, insurance, maintenance and utilities (save the telephone bill).
·The respondent be restrained from telephoning, text messaging or sending MMS messages to the applicant.
The test when considering whether to order sole use and occupation of a property was set out by Justice Cronin in Lenova & Lenova (No.2) [2009] FamCA 1031 at [46] as follows:
“The removal and conversely the refusal to remove, a party from a home will create hardship for someone if not both parties. The test is the comparison of hardship for each party depending upon whether the order is made or not made. Another way of examining the matter is to determine whether the Court should regard the situation as being such that it would not be reasonable or sensible or practicable to expect the parties to continue to live in the environment in which they are currently existing”.
The applicant has no where else to live. It would not be reasonable or sensible or practicable to expect the parties to cohabit in the property. The respondent is based in Perth and has a property in Perth to live in. Denying the respondent use and occupation of the property will cause him some hardship, but less than would be caused to the applicant if an order is not made. The order made by the Court provides that:
“if the respondent appoints a real estate agent to act on the sale of the property, the applicant permit that person and/or any other person associated with the sale to enter upon the said property”.
That provision further reduces any hardship that the respondent may allege. An order giving the applicant sole use and occupation of the property will cause less hardship for the respondent, than the hardship caused to the applicant if the order is not made.
The Court therefore orders that the applicant have sole use and occupation of the property, pending the adjourned hearing date or further order.
During the course of the hearing on 14 September Mr Sabens sought an adjournment because he had no legal representation (on that day) (Transcript “T” p.3, l.37). The applicant wished to proceed on
14 September but was prepared to agree to an adjournment subject to conditions, including the payment of costs.
The Court ordered that the hearing of the threshold issue as to the nature of the relationship be adjourned to 12 June 2012.
The Court heard the respondent’s objection to paying costs but ordered that he pay the applicant’s costs thrown away in the sum of $2,800.00 for Counsel and $1,650.00 for solicitor’s costs, within 30 days.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 9 November 2011
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