WALLIAMS & MANDRILL

[2018] FamCA 456

FAMILY COURT OF AUSTRALIA

WALLIAMS & MANDRILL [2018] FamCA 456

FAMILY LAW – INTERIM PROPERTY – Where there is an issue as to the characterisation of a payment that is agreed the husband should pay to the wife on an interim basis – Whether the payment should be characterised as an interim property distribution or as spousal maintenance – Where the determination of the character of the payment is to be left to the trial judge.

FAMILY LAW – INJUNCTIONS – EXCLUSIVE OCCUPATION – Where the wife seeks an injunction such that the husband vacates the former matrimonial home – Where both parties have care of their child, aged five – Where the circumstances do not justify an injunction for exclusive possession being granted in favour of the wife – Where the wife’s application is dismissed.

Family Law Act 1975 (Cth) ss 114, 114(1)(b), 114(1)(f)

Bevan & Bevan (2013) FLC 93-545
Davis & Davis (1976) FLC 90-062
Fedele and Fedele (1986) FLC 91-744
O'Dea & O’Dea (1980) FLC 90-896
Page and Page (1981) FLC 91-025
Tansell and Tansell (1977) FLC 90-307

APPLICANT: Ms Walliams

RESPONDENT: Mr Mandrill

FILE NUMBER: SYC 620 of 2018

DATE DELIVERED: 22 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 4 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Donnelly

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Apelbaum

SOLICITOR FOR THE RESPONDENT: Mistry Fallahi Lawyers

Orders

1. That within 14 days of the date of these orders, the husband pay to the wife the sum of $50,000. The characterisation of that payment to be determined by the trial judge at the final hearing.

2. That the husband pay to the wife by way of interim spousal maintenance the sum of $3,000 per month, such sum to be deposited into an account as nominated by the wife.

3. That the husband pay for the wife her medical benefits insurance at the current level of cover with B Insurance.

4. That within 14 days of the making of these orders the wife provide to the husband’s solicitors copies of the following:

   (a)       Notice of Assessment for Ms Walliams for the financial year 30 June 2017;

   (b)       Westpac Choice Account Statements for account number ending #...30 for the period 22 December 2017 to present.

5. That the wife’s interim applications, including the application for exclusive occupation of the Suburb C property, are hereby otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walliams & Mandrill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 620 of 2018

Ms Walliams

Applicant

And

Mr Mandrill

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by the wife on 1 February 2018 in which she seeks orders in relation to exclusive occupation of the former matrimonial home, interim property orders and spousal maintenance orders.

2. The wife sought orders as set out in a Case Outline handed up on the day:

   Exclusive occupation

   1.        That pending further order:

   1.1The wife be granted exclusive occupation of the [Suburb C] property.

   1.2 The husband do forthwith deliver up to the wife’s solicitors all keys and access remote devices pertaining to the [Suburb C] property.

   1.3 The husband is restrained from attending at or entering upon the [Suburb C] property and from doing any act of [sic] thing to disturb the wife’s quiet enjoyment of the [Suburb C] property.

   Costs of the [Suburb C] property

   2. The husband shall be responsible for the maintenance and outgoings in respect of the Suburb C property including but not limited to the [Suburb C] home loan, telephone, gas and electricity, council rates and water rates and insurance, and shall indemnify the wife in respect of all liabilities in relation to the [Suburb C] property.

   Spouse maintenance

   3. That the husband pay to the wife, by way of interim spouse maintenance, the sum of $762 per week, the first payment to be made within 7 days after the making of this Order, and thereafter, by way of weekly instalments.

3. She also sought orders with respect to costs.

4. The husband filed an Amended Response to the wife’s application on 29 March 2018, in which he sought the following:

   1. That the wife’s Interim Application for exclusive occupation of the [Suburb C] property be dismissed.

   2. That the wife’s Interim Application for the spouse maintenance be dismissed.

   3. That the wife’s Interim Application for the interim costs be dismissed.

   4.        That the wife pay the husband’s costs of the proceedings.

5. When the matter came before the Court on 4 April 2018, the parties handed up a document that purported to be consent orders. It was marked as Exhibit A. Those orders were not made on the day as the parties were not, in fact, ad item as to the characterisation of the payment that the husband was to pay to the wife (as underlined):

   1.That within 14 days of the date of these orders, the husband pay to the wife the sum of $50,000 by way of interim part property settlement.

   2.That the husband pay to the wife by way of interim spousal maintenance the sum of $3,000 per month, such sum to be deposited into an account as nominated by the wife.

   3.That the husband pay for the wife her medical benefits insurance at the current level of cover with [B Insurance].

   4. That within 14 days of the making of these orders the wife provide to the husband’s solicitors copies of the following:

   (a)Notice of Assessment for [Ms Walliams] for the financial year 30 June 2017;

   (b) Westpac Choice Account Statements for account number ending #...30 for the period 22 December 2017 to present.

   5. That the wife’s interim applications be and are hereby otherwise dismissed.

6. Thus, the issues that remain to be determined are the characterisation of the payment of $50,000 to the wife, and the wife’s application for exclusive possession of the former matrimonial home in Suburb C.

7. Each party made brief submissions in relation to the areas of disagreement, which I will address later in these reasons.

Evidence

The wife’s evidence

1. The wife relied on the following evidence:

   a)Paragraphs of the wife’s affidavit filed 1 February 2018;

   b)The affidavit of Dr D filed 27 March 2018; and

   c)The wife’s Financial Statement.

2. The wife drew the Court’s attention to her affidavit filed 1 February 2018, in particular, paragraphs 1 to 10; 14; 42 to 45; 54 to 55; 59; 72; and 74 to 79.

3. The wife deposed that she is currently 56 years of age. She has two adult children from a previous relationship.

4. The wife set out a brief history of the parties’ relationship. The parties commenced a relationship in 2005, commenced cohabitation in August 2010, married in 2010, and separated in March 2017. There is one child of the relationship, X, who is currently five years old.

5. Since separation, the parties have remained living under one roof at the Suburb C property. The wife deposed that she finds this living situation, together with her uncertain financial circumstances, stressful.

6. The wife set out her contributions in relation to the care of X. She says that she was the primary carer for X and the husband only assisted on rare occasions.

7. The wife says she has undertaken study and practical work towards a trade diploma.

8. The wife stated that since December 2017, the husband has spent at least one night per week at a property he owns in Suburb E (“The F Street Property”). She says that she and the husband have had an increasing number of disagreements in the presence of X.

9. X currently attends Suburb C Public school. The mother says that the after school care service at that school is currently full.

10. The affidavit of Dr D, sworn 27 March 2018 set out the following evidence.

11. Dr D annexed a report to the affidavit, written at the request of the wife’s solicitor. The report sets out that the mother has been a patient of Dr D since November 2012. The mother was diagnosed by Dr D in August 2013 with post-natal depression, and prescribed medication for that in October 2013. She has remained on that medication since it was prescribed.

12. Dr D set out that the mother presented in December 2014 and reported “recent marital conflict” and was referred to a family therapist. In February 2018, Dr D reported that the wife’s anxiety symptoms post-separation were “exacerbated by the fact that her husband remained in the same house”. Dr D conducted a “K10” questionnaire in which the mother scored high. This questionnaire became Exhibit H1. Dr D provided the mother with a referral for a therapist or a psychologist.

13. The wife relied on her Financial Statement as to her current financial position.

The husband’s evidence

1. The husband relied on the following evidence:

   a)The husband’s affidavit filed 12 March 2018, particularly paragraphs 1 to 6, 10 to 11, 18, and 20 to 22;

   b)The affidavit of Ms G Mandrill filed 12 March 2018; and

   c)The husband’s affidavit filed 29 March 2018 at paragraphs 20-26.

2. In the husband’s affidavit filed 12 March 2018, the following evidence was set out.

3. The husband set out a brief history of the parties’ relationship. The husband is 68 years old. His evidence differs from the wife’s on the commencement of cohabitation and the date of separation. The husband says that the parties commenced cohabitation in September 2010 and separation occurred in March 2016.

4. The husband sets out that he and the wife equally share the care of their daughter X. He stated that he is never away from home more than one day per week and that he has a good relationship with X.

5. It was the husband’s evidence that the Suburb C property is a two storey, six bedroom home. He deposed that each he and the wife have separate bedrooms and bathrooms on different levels of the home.

6. The husband says that he and the wife are able to communicate with one another in relation to X. They share her daily routine. He set out what he does for X and the home on a day to day basis, including preparing meals, taking her to school, cleaning and yard maintenance, and grocery shopping.

7. In the husband’s affidavit filed 29 March 2018, he set out the following evidence.

8. The husband set out X’s morning, after school and nightly routine. He deposed that he cares for X most mornings and that X sleeps in his bed about two nights per week.

9. He set out that the parties have different routines, but that they generally are together with X before and after school, and at dinner of an evening.

10. The affidavit of Ms G Mandrill filed 12 March 2018 set out the following evidence.

11. Ms Mandrill is the husband’s niece. She lives in the Suburb C property with the parties during university semesters and attends university in Sydney. She has resided with the parties for approximately 10 months.

12. She set out that she has observed the parties’ routine with X. She says that she has observed each of the parties contribute to X’s parenting

13. Ms Mandrill says that she has not seen any physical violence in the home. She says that she has not seen the husband “deliberately provoking the Applicant to cause the Applicant’s distress.” She says further that the parties are civil to each other and that based on her observations, neither of their behaviour is a threat to X’s safety.

14. Ms Mandrill deposed that she has experience and training in early childhood education and care.

Submissions

The wife

1. The wife made oral submissions in this matter.

2. It was conceded that in an injunction for exclusive possession of the property, the onus was on the applicant to establish the ground for the Court making the order.

3. The wife pointed to several factors that it was submitted the Court ought consider:

   a)The wife’s mental health;

   b)The child’s commencement of school this year;

   c)The earning capacity of each party, particularly in relation to the ability of each to pay rent;

   d)The financial position of the husband, in particular the fact that he has no need to remain in the same house as the wife.

4. In relation to the wife’s mental health, it was submitted that the evidence of Dr D indicates that the family dispute is affecting the mother’s mental health. It was submitted that it cannot be good for the child to be exposed to the mother’s mental illness.

5. The wife submitted that the child had commenced kindergarten this year at Suburb C Public School, that she required support at this time, and that the conflict between the parents would not assist her. It was submitted that the husband moved to an upstairs bedroom only recently and the child currently shares a room with the mother.

6. The wife handed up a tender bundle which was marked as MFI1, and directed the Court’s attention to a number of documents contained therein. Taken as a whole, the wife submitted that these documents went to the conduct of the husband, particularly the changing position of the husband in relation to his occupation of the former matrimonial home. It was submitted that the husband had taken steps to move out of the home, but had changed his position to one that was more uncertain, which had affected the wife’s mental health.

7. It was submitted that the husband has the means to vacate the former matrimonial home, that it would serve the needs of the wife for the husband to vacate, and that it would serve the needs of the child, as the risk of the child being exposed to conflict is high.

8. In relation to the characterisation of the agreed $50,000 payment of the husband to the wife, it was submitted for the wife that her position was that the payment ought not be stated to be interim property.

The husband

1. The husband relied on his written submissions.

2. It was submitted by the husband that in relation to the wife’s mental health, that although the wife’s GP set out her suggestion for the wife to have specialist psychologist treatment as early as December 2014, the wife has never taken up that advice and has never seen a counsellor or psychologist about her stress and anxiety.

3. Counsel for the husband also drew the Court’s attention to the letter from Dr D, the wife’s general practitioner, in which the K10 questionnaire was mentioned. It was submitted that the only diagnostic tool which appeared to have been used was this questionnaire, a copy of which was marked as Exhibit H1. The husband submitted that there was no evidence that the husband was the cause of the wife’s depression, nor was there evidence as to the seriousness of her condition. The husband further submitted that Dr D’s evidence is not specific in relation to a reference to “recent marital conflict”, and also that the wife is compliant with her medication.

4. The husband disputed the wife’s evidence in relation to “an increasing number of disagreements” between the parties, submitting that there were no particulars provided on this point.

5. In relation to money, the husband submitted that although the wife has highlighted her concerns about money, her bank records show that she has spent money on wine and cosmetics. It was submitted that this was not a judgement on the wife’s spending, but that it related to the question of the wife’s priorities.

6. It was submitted that the husband is the sole owner of the former matrimonial home, that he purchased the property with a mortgage and funds from the sale of a previously owned property. It was submitted he pays the mortgage and utilities for the property.

7. The husband submitted that he and the wife share the care of X, and that they are able to communicate with one another about her. The husband submitted that there is limited evidence that the living arrangements are negatively affecting the child, and that he has a good relationship with the child. It was further submitted that there are no parenting orders in place should the husband be excluded from the home. He said such exclusion would negatively impact upon his relationship with X.

8. Counsel drew the Court’s attention to case law in relation to the exclusive occupancy of the former matrimonial home.

9. In relation to the characterisation of the agreed $50,000 payment from the husband to the wife, it was submitted that the wife was seeking money to meet her legal costs, and that the payment should form part of the property settlement.

Relevant Law

1. Section 114(1)(b) and (f) are the provisions which empower the Court to injunct one party to a marriage to vacate the matrimonial home in favour of the other party. The section provides:

   (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:

   …

   (b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   …

   (f)an injunction relating to the use or occupancy of the matrimonial home.

2. In making a determination in relation to occupancy of the former matrimonial home, the Court is required to address two basic questions, those questions being:

   a)        Whether the property should be occupied by one party only; and

   b)Which of the parties should vacate the property and which party should have exclusive occupation of the property.

3. It is to be noted that the making of any such injunction does not in any way affect the property interests of the parties. Such an injunction is held to be temporary in nature and applicable only to the person in question. The Full Court (Evatt CJ, Demack & Fogarty JJ) said in Tansell and Tansell (1977) FLC 90-307, at 76,634:

   What, however, must be clearly kept in mind is that this power under sec. 114(1), both as to occupation and non-disposal of property, is a power which is both temporary and personal. It cannot be used to affect in a permanent way interests in property and it is a power which is directed to a spouse personally, prohibiting or restraining him or her from certain actions.

4. In Davis & Davis (1976) FLC 90–062, Evatt CJ, Pawley and Ellis JJ set out the following, at 75,309:

   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 to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

5. The preceding extract has continued to be used as a guideline in subsequent judgments in this area (see Fedele and Fedele (1986) FLC 91-744; Page and Page (1981) FLC 91-025; Tansell and Tansell (1977) FLC 90-307)

6. The list is not exhaustive, nor are all of the considerations essential.  The decision to turn a party to a marriage out of their own house is considered to be a serious matter (see, eg, O'Dea & O’Dea (1980) FLC 90–896, 75,648). Therefore, the Court must not decide the matter solely on the balance of convenience.

7. The criteria and matters to take into consideration have been restated in a number of cases dealing with this subject, all of which have provided a variation of the principles set out in Davis as they addressed the particular facts of the case. In Fedele and Fedele (1986) FLC 91-744, Fogarty, Murray and Nygh JJ summarised the authorities on the area as follows (at 75,431):

   That view is emphasised by the circumstance that immediately after reference to Rowe's case, the Full Court in the 1983 Davis case referred to the unreported judgment of Lindenmayer J in Price (12 July 1982) where, after referring to a number of the relevant authorities, Lindenmayer J said:

   “All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”

   …

   There have been numerous reported cases on the application of sec. 114(1), including a number of decisions of the Full Court. Many of them lay down useful guidelines to assist trial judges in the exercise of the discretion under sec. 114(1), but they should be treated as guidelines only to assist in the proper exercise of the important discretion given under that section. They should not be seen as laying down a fixed list of criteria which must be established for the application to be successful. A judge is required to exercise his own discretion in the matter, but no doubt in the proper exercise of that discretion he will be guided by assistance given to him in authoritative judgments in this Court. …

Determination

How should the payment from the husband to the wife of $50,000 be categorised?

1. In relation to the issue of how the payment of $50,000 from the husband to the wife is to be categorised I propose to order that the categorising of the amount be left to the trial judge.

2. In the circumstance of this case I consider the dispute to be an exercise in semantics. Clearly each party considers the categorisation they press will gain them some advantage in the final division of their assets. I consider such an approach short sighted and lacking in appreciation for the manner in which a trial judge is required to determine a property application. In my view, whether the payment of the $50,000 to the wife is stated to be either interim property or interim spouse maintenance, will in the final orders of the court make no appreciable difference. The reason for such a view can be simply stated as follows.

3. A trial judge has a discretion to include an entry in the trial balance sheet even where the property has become notional property. Thus, should the wife have expended the $50,000 on living expenses before the trial is concluded, a trial judge may determine there are good reasons to either include the sum in whole or in part in the balance sheet or to exclude it from the balance sheet. Jurisprudence of the court would support a determination that notional property not be included in the balance sheet unless there is some acceptable and justifiable reason (see Bevan & Bevan (2013) FLC 93-545 at [79]).

4. Moreover, the trial judge may utilise s 75(2)(o) to take into account a payment, such as the $50,000 payment in this case, and consider all the relevant facts surrounding the payment of the sum and the manner in which it was expended together with any other relevant fact or circumstance in coming to a decision which the trial judge considers is just and equitable.

5. I conclude that the order which is likely to permit the trial judge in this matter to make a just and equitable determination is to not bind the hands of the trial judge, and therefore leave the characterisation of the $50,000 payment to the trial judge to determine.

6. Apart from any consideration of the Court being able to make a just and equitable final determination, a finding of any other outcome merely serves to promote the continuation of conflict between parties where competing interim property and interim spouse maintenance applications are before the Court. Such outcome should be avoided as a matter of public policy.  

Should an order for exclusive occupation be made?

1. The exclusion of a party from his or her own chosen residence is not an order which should be made lightly. It is an order which substantially affects a person’s ordinary rights.

2. As made clear in the authorities cited earlier, the determination of such an application is one which requires the exercise of discretion taking into account all the relevant facts. It is suggested that, perhaps, the final question the judge determining the matter might ask is, “Is the situation in the house such that it is not reasonable, sensible or practicable to expect it to continue.”

3. I have determined in this case the wife’s application should be refused. The reason for such determination includes the following:

   ·The husband is the legal owner of the property;

   ·The husband has an established relationship with X;

   ·X is only 5 years of age;

   ·The evidence of Ms Mandrill does not support a conclusion that the environment in the house arising from the joint occupancy of the property by both the husband and wife is such as to expose the child or the wife to unnecessary or unreasonable levels of stress;

   ·The medical evidence of the wife does not establish that her condition in relation to depression or anxiety would improve if the husband was to vacate;

   ·Although the doctor noted that the wife has been compliant with her medication, she has failed to take steps recommended by her doctor to help her with anxiety and depression in that she has not taken up counselling/therapy as recommended;

   ·The fact that the husband does have another property to occupy should not be determinative of the wife’s application. The removal of the husband from the property is likely to have an impact upon the relationship between X and the husband;

   ·The property is such that the size allows the parties to live in the house in separate living areas. Each has the capacity to retreat to the area of the house that they have chosen to occupy should they so desire.

4. In determining this application I take into account that neither party should be permitted to use the Court as a tool to achieve a perceived strategic advantage. Whilst I appreciate that each party has decided their cohabitation has concluded and that each would like to move quickly to a circumstance where they are physically separated in their residences, this application should not be determined merely upon a matter of convenience, in this case, the convenience of the husband having the capacity to live in another property which he owns.

5. I will therefore dismiss the wife’s application for exclusive occupation of the Suburb C property.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2018.

Associate: 

Date:  22 May 2018