WADLOW & WADLOW

[2020] FCCA 1220

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADLOW & WADLOW [2020] FCCA 1220

Catchwords:
FAMILY LAW – Wife’s application for injunctive orders to give her interim sole occupancy of a property – husband’s cross-application asking that the wife do all things so as to obtain council approval for a structure unilaterally built by husband on property post-separation – both applications dismissed.

Legislation:

Family Law Act 1975 (Cth), s.79

Cases cited:

O’Dea & O’Dea (1980) FLC 90-896

Davis and Davis (1976) FLC 90-062

Page and Page (1981) FLC 91-025

Applicant: MS WADLOW

Respondent: MR WADLOW

File Number: LNC 116 of 2020

Judgment of: Judge McGuire

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Launceston

Delivered on: 27 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Trezise

Solicitors for the Applicant: Andrea Trezise

Counsel for the Respondent: Mr Munro

Solicitors for the Respondent: John Munro & Associates

ORDERS

1. That the wife's interim application that the husband vacate the property at A Street, Town B in Tasmania be dismissed.

2. That the husband’s interim application that the wife apply to the Region C council for permits for temporary occupation of a property at A Street, Town B described in certificate of title Volume ... Folio ... be dismissed.

3. That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by D Counselling (Victoria) (noting an appointment in Launceston on Monday 20 July 2020 at 1.30 p.m.).

4. That within fourteen days each legal representative or self-represented litigant is to contact D Counselling (Victoria) to confirm arrangements for mediation.

5. That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following :

   a.a copy of the parties’ respective applications, affidavits and Financial Statements;

   b.a full list of assets ( including any superannuation ) and liabilities including values;

   c.details of alleged financial contributions;

   d.relevant future needs factors pursuant to section 75(2) or 90SF(3) of the Family Law Act 1975;

   e.the proposal for property settlement; and

   f.copies of any current intervention or restraining orders.

1. That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in respect of the above mediation in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.

2. That unless agreed in writing within 14 days of the date of these Orders, for the purposes of the Mediation only, then the parties jointly obtain valuations of any asset the value of which is in dispute such to be filed on Affidavit not later and 2 clear working days prior to the Mediation and that the parties to be equally responsible for the costs of the preparation and provision of the valuation.

3. That leave is granted to the parties to file with my Associate executed Consent Orders/Terms of Settlement prior to the adjourned date and if appropriate orders may be made in Chambers and the above adjourned date may be administratively vacated.

4. That the matter be adjourned for directions in the Federal Circuit Court at Launceston on Monday 27 July 2020 at 12.00 noon.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 116 of 2020

MS WADLOW

Applicant

And

MR WADLOW

Respondent

REASONS FOR JUDGMENT

Applications

1. There are substantive proceedings for property settlement between the parties commenced on the wife's application filed 5 March 2020. That application also seeks an interim order effectively being for sole occupation by the wife on the property where the parties lived until separation, at A Street, Town B in Tasmania. 

2. The husband in his Response asks for, firstly, an order that the wife's interim application for sole occupancy be dismissed.  However, and secondly, he asks for a discrete interlocutory order as follows:

   That within 21 days the Applicant and the Respondent sign all documents and do all things to apply to the Region C Council for a permit for Temporary Occupancy at the property A Street, A Street, Town B, more particularly described as Volume ... Folio ... (the property) and all things and sign all documents to apply for a planning permit for Change of Use to that property from a garage under class 10 A to class I A which is a single dwelling with all cost associated with that permit and Application to be borne by the Respondent.

3. Consequently, it is important to understand that I have two discrete applications and issues before me and that they should not be confused and, as such, I intend to deal with them separately according to the evidence in respect of each.

Background

1. The wife is 45 years of age.  She works casually as a customer service assistant in Launceston and otherwise receives a Centrelink benefit.  She resides in a residence on the relevant property at A Street, Town B which is described variously as a 'shed' and ‘barn’.  It appears that this was the joint residence of the parties before separation.  It seems that this residence did not have proper and full council approval but that the wife has since separation obtained a Temporary Building Works Permit from the Region C council for occupation of the property. 

2. The husband is self-employed as a professional.  The wife says that on 12 June 2019, about five weeks prior to physical separation of the parties, the husband advised that he was going to build an ‘apartment’ on an existing indoor horse arena on one of the titles to the substantive property at A Street, Town B.  Work began on that property in June 2019.  The husband has since resided in that structure/residence.  The structure was built with the assistance of trades people.  It is agreed that the structure does not have prior or current planning approval from the Region C council.

3. The wife is the sole registered proprietor of the property at A Street, Town B.  It sits on four conjoined titles and was gifted to the wife unencumbered by her late father.

4. The parties commenced cohabitation in 2003.  They married in 2006 and separated on 18 July 2019.  There are three children of the marriage aged 11, 10, and 7 years respectively.  I am told that the children remain living primarily with the mother in the former matrimonial home but spend time including overnight time with the father in the residence/structure that he has caused to be constructed. 

5. The parties are in the early stages of the substantive proceedings and have not as yet attended a mediation.  The wife seeks orders inter-alia that she retain the relevant property at A Street, Town B comprised on the four separate titles and also to retain a property at E Street, Town B purchased in 2013 for $165,000 and also registered in her sole name.

6. In his final orders the husband asks to retain two of the titles to the property at A Street, Town B, presumably one of which now contains the structure built by him and on which there is an indoor horse arena.

7. The parties agree that the husband has been paying or contributing to the mortgage over what I assume to be the E Street, Town B property and also to a loan on the wife's motor vehicle.  There is some dispute as to whether or not he has consistently made payments or whether they are up-to-date?  Such payments, however, have been made voluntarily and without the need for Court orders. 

Consideration

1. As mentioned above, and upon reading the material, I am of the view that the applications are not necessarily connected in type and should be considered independently and which I intend to do. 

Wife's Application for Sole Occupancy

1. The wife argues that she should have sole occupancy of the property comprising all of the titles to A Street, Town B.  She relies on two affidavits sworn the 4 March and 8 May 2020.  The wife's argument can be summarised as follows: –

   a)That the three children live primarily with her in the shed/barn which can be categorised as the former matrimonial home;

   b)She is the sole registered proprietor of the property;

   c)That she intends to retain all titles to the relevant property in the final property settlement in circumstances where that relevant property was bequeathed to her unencumbered by her late father;

   d)That the husband has alternative accommodation with a long-term friend or an aunt albeit that she provides no affidavit material from either of those two persons;

   e)That, in any event, the husband is in full-time and well remunerated self-employment such that he can obtain rental accommodation for himself relative to the wife who is substantially in receipt of a Centrelink benefit for herself and the children;

   f)That the structure in which the husband lives on one of the titles to the relevant property does not have proper council approval or permit and the wife says that she does not agree to, in the long or short term, for the issue of a Temporary Occupation Permit in respect of this structure and it follows that should the husband remain in residence of that structure contrary to council approval or permit then she as the registered proprietor of the property may suffer costs or other penalties in respect of any affirmative action taken by the council. 

2. The wife says in her affidavit sworn 4 March 2020 at [15] that:

   On 18 July 2019, I requested Mr Wadlow to remove himself from the house after perpetual emotional, financial, verbal, psychological and manipulative abuse.

3. The wife does not particularise or provide corroboration of these broad allegations.

The Husband's Argument – Sole Occupation by the wife

1. The husband says that the structure in which he lives on one title of the relevant property can relatively easily be afforded a Temporary Residence Permit as indeed was obtained by the wife in respect of the shed/barn.

2. He argues by implication that the wife was put on notice to the building of the structure on the particular title prior to the parties’ separation in about June 2019 and that she effectively acquiesced to that building by taking no action in this or any other Court until her substantive application filed 5 March 2020.

3. The husband also argues by implication that he concedes sole occupation of the barn/former matrimonial home to the wife but in circumstances where the property comprises four titles and that there is therefore no prejudice or detriment to the wife in him residing in a completely separate residence. 

4. The husband says that there is benefit to the children of him remaining in the residence in that they stay with him, including overnights.  In this sense he says that the property is suitable for the children in that it has lighting, heating and hot and cold running water.

5. The husband says that he will be responsible for any costs in obtaining necessary Temporary Occupation Permits from the Region C council. 

6. The husband says that he has a valid and meritorious argument to retain two of the titles to the relevant property in the final and substantive hearing in these proceedings.

7. The husband says that he is meeting the outgoings on the former matrimonial home inhabited by the wife together with a loan on the wife's motor vehicle.

8. The husband says that he continues to run his business from the structure on the relevant title including an office and the parking of machinery.  He says that at [10] of his affidavit of 13 May 2020 that he has no alternative available accommodation for himself and the children who stay with him on overnight visits.  He says that should he be required to find rental accommodation for himself and the children then he would not be able to continue to meet the mortgage and loan payments. 

Consideration

1. It is generally accepted that it is a serious matter, at an interim stage such as this, to order a husband or a wife out of the matrimonial property and that a Court should issue such an injunction giving exclusive or sole occupancy to one the parties 'only with caution.'[1]

   [1] O’Dea & O’Dea 1980) FLC 90-896

2. It is equally well established that the orders that I am asked to make discretionary in nature and as observed by the Full Court in Davis and Davis[2]:

   The criteria for the exercise of the power under sec 114 (1) are simply that the court may make such order as it thinks proper.  The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or the children and, where relevant, conduct of one party which may justify the other party in leaving the home or asking for the expulsion from the home of the first party.

   [2] (1976) FLC 90-062

3. As with most discretionary decisions, the factors for the Courts consideration are often case-by-case based, broad and not limited to those matters set out in Davis and Davis (supra).

4. Matters such as this should not be determined simply and solely on the balances of conveniences and inconveniences but it is not necessary for a party to demonstrate 'impossibility' or 'intolerability’.  Rather, the Court must simply look at the particular factual platform and circumstances between the relevant parties as to whether or not it would be reasonable, sensible or practicable to expect them to continue to remain living in the same home or residence together at least until such time as the proper forensic preparation for and conduct of the trial has been had[3]. 

   [3] Page and Page (1981) FLC 91-025

5. The application by the wife is an unusual one of its type. This is not a situation where both parties insist on remaining in the one residence.  To the contrary, the husband has voluntarily vacated the structure which could be called the former matrimonial home.  In this case he has taken up residence some distance from the former home but in a structure on the same property albeit on a different title.  Indeed, in circumstances where he has vacated the former matrimonial home I might be inclined to give the wife sole occupation of that home although neither party has asked for or conceded such.

6. The wife in her affidavit references the conduct of the husband which apparently contributed to the parties’ separation.  However, she does not particularise or provide corroboration for her assertions.  It is important to understand that these are effectively interim orders although of an injunctive nature but, as such, the Court does not have the benefit of testing of the evidence by cross-examination and it is difficult to make determinations of disputed fact and credit.  However, in the sense of the wife's assertions of misconduct by the husband, I can place little weight on that evidence given its form, lack of particularisation, and lack of corroboration whilst noting again that the husband has voluntarily vacated the former matrimonial residence in favour of the wife.

7. The wife argues that she is the sole registered proprietor of the titles to the relevant properties. This, however, is of little import in circumstances where the Court pursuant to section 79 of the Act will be considering any equitable, as well as legal, interests in property and the fact of the wife being the titleholder is of little or no consequence at this stage. I am unable to determine at this stage whether or not it is viable for the wife to achieve her ambition of retaining all four titles to A Street, Town B.

8. The evidence does not disclose that this is a situation where the wife and the husband must necessarily come into direct or close contact with each other by reason of their occupancies of different titles to the same property.  Indeed, neither party references any such fact or need of close contact.

9. I take into account the husband's evidence that he has no ready available alternative accommodation for himself.  I note that the wife offers two suggestions. However, the evidence generally is unsatisfactory and incomplete in this respect.  I do note, however, it seems agreed that the children spend time with the husband including overnight time and that no applications have been made to this Court to cease or limit such time.

10. I accept that the husband's presence on the property, albeit a relatively large property and not of the dimensions of a normal suburban home, might cause the wife some discomfort and possible inconvenience.  However, in the light of the comments by their Honours set out above, I am not persuaded that the circumstances in this particular case, where the parties have already taken up residence in two different residences, such that I should take the serious step at an interim stage of imposing injunctive orders which serve to evict the husband from the property.  As such, I exercise my discretion in not making the injunctive order sought by the wife.

Husband's Application

1. The husband asks for an affirmative order that the wife be obliged to participate in obtaining requisite approvals from a local council for the structure in which the husband lives.  I repeat that this is a separate and discrete consideration than that conducted on the wife's application.

2. The wife is the sole proprietor of the relevant property.  She asks to retain it, apparently in its current form, in the final orders that she seeks. The evidence tends towards the husband unilaterally determining to build a form of residence on one of the titles to the relevant property.  Whilst I note perhaps some form of acquiescence by the wife, there is no evidence from either party that she positively consented to this occurring.

3. I accept the wife's evidence, on the balance of probabilities that the husband being self-employed in the construction industry was or should have been aware of general council and planning requirements for the construction of residences.

4. Importantly, however, I see the issue here being analogous to preservation of property during the course of proceedings leading to a final hearing and final orders.  Effectively, the husband is asking for an order that the wife participate in post-separation improvements to a property.  There should be no compulsion on the wife in circumstances where this is not an issue technically of any decay or loss of value on any structure or asset. To the contrary, the husband has made a unilateral decision essentially during the course of separation and prior to a property settlement and where he now insists on the wife consenting and participating in having the local council give their building permits and approvals.  I have little or no evidence as to the costs save and accept that the wife asserts that she has spent $10,000 on similar approval for the barn where the husband suggests that the costs might be as little as $1,000.  More importantly, I have no evidence in proper form as to whether or not the structure built by the husband adds to the value of the property or, alternatively, might decrease the value of the property, or even might be an over-capitalisation.

5. The fact that the husband says that he will pay for any council approval process is immaterial to my consideration.

6. Essentially, however, I am of the view that it is disingenuous for the husband to make a unilateral decision following separation in respect of property which was or would become the subject of litigation and then insist on the wife's retrospective consent.  In those circumstances, I am not inclined to exercise my discretion in respect of the husband and his interim application will be dismissed.

Conclusion

1. From the above, it is clear that both the wife's application for sole occupation of the property and the husband's application for the wife to participate in a planning process have been dismissed.  I am well aware that the upshot of these orders in the interim will technically allow the husband to remain in occupation of the structure on the property at A Street, Town B.  It seems agreed, at least, that there are outstanding council approvals/permits in respect of that property.  I have insufficient information as to the process of any council approval but am mindful of the fact that, in any event, the council may require the consent of the registered proprietor being the wife.  If this is the case then, as set out above, the husband's position suffers by reason of his unilateral actions.  In summary, therefore, whilst these orders do not restrain or remove the husband from the structure on the property, I would look very favourably upon any costs or penalties incurred to these parties, or by the wife herself solely as the registered proprietor, by any action taken by the council to be met by the husband should such come to pass.  That is, these reasons should not be seen by the husband as some form of “licence” permitting him to inhabit a structure which quite clearly does not have the necessary council permits or approval. 

1. Secondly, in the circumstances set out above, I would think that any application by the wife for sole occupancy of the former matrimonial home/barn would be irresistible although I expect that such an application might not to be necessary.

2. Thirdly, I note that the husband is currently meeting the mortgage and personal loan costs. I note the financial circumstances of each the parties.  I note that the husband has met these costs voluntarily and whilst I received an affirmative response from his Counsel that he would consent to any orders formalising that arrangement in the interim, on reflection, I do not have an application from the wife and hence I am not inclined to make such orders. 

3. The parties agree that it is appropriate that I make directions for a mediation with D Counselling.  I will order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate

Date: 27 May 2020