WALSH & WALSH

[2013] FamCA 1028

FAMILY COURT OF AUSTRALIA

WALSH & WALSH [2013] FamCA 1028

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

Marriage of Gillie (1978) 4 FamLR 127

APPLICANT: Mr Walsh

RESPONDENT: Ms Walsh

FILE NUMBER: SYC 4549 of 2012

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 16 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Archibald

SOLICITOR FOR THE RESPONDENT: Ren Zhou Lawyers

Orders, pending further order

1. That the husband have exclusive occupation of the property situate at and known as B Street, C Town in the State of New South Wales.

2. That the husband forthwith pay to the Commonwealth Bank all amounts required to discharge current arrears in respect of the mortgage in the title to the C Town property.

3. That the husband will pay promptly all monthly instalments in respect of the mortgage to the Commonwealth Bank on the title to the C Town property, together with all strata levies, council rates, water rates and maintenance costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4549 of 2012

Mr Walsh

Applicant

And

Ms Walsh

Respondent

REASONS FOR JUDGMENT

the proceedings

1. By an Application in a Case filed on 30 October 2013 the husband, Mr Walsh, sought orders to the effect that he have exclusive occupation of an investment property at B Street, C Town.  The respondent wife, Ms Walsh, opposed that application.  She seeks orders for the sale of that property and an investment apartment at D Street, Suburb E in Victoria on an interim basis.  The wife’s interim application has yet to be listed for hearing.

Background

1. The husband and the wife, who are aged 58 and 52 respectively, married in 1999 and separated on 1 August 2011.  They have two children:

   F born in 1999 (14)

   G born in 2001 (12).

2. The wife and the children have lived in the former matrimonial home at H Street, Suburb I since the separation.  On 31 October 2013 the husband moved into the C Town property, which had recently been vacated by tenants.  Previously he lived at his office and in a home unit at Suburb l owned by his new partner. 

3. When the tenants vacated the C Town property the wife changed the locks.  The husband then changed the locks again and began to move furniture and personal possessions into the property on 31 October 2013. 

Consideration

1. Despite a submission to the contrary by counsel for the husband, it is clear that the financial circumstances of the parties are a relevant consideration for present purposes (see for example in the Marriage of Gillie (1978) 4 FamLR 127). According to the wife’s affidavit of 10 December 2013 the parties’ overall financial position is adverse, in that their assets amount to approximately $2,094,000 and their current level of debt is around $1,158,000. The wife gave evidence of a deterioration of the income in her business known as J Pty Ltd, to the extent that it recently traded at an annual loss of $165,600. Nonetheless, the wife draws an annual net salary of $70,906.

2. According to a Financial Statement of 29 July 2013 the husband earns approximately $1,400 gross per week from his practice as a barrister and mediator and pays tax of $115.  As at 29 July 2013 the husband had savings of approximately $5,000.

3. Since the separation the children have usually spent two nights per fortnight with the husband.  They have stayed with him at his office in the past but, in my view, that situation is hardly satisfactory for two teenage girls.

4. It was submitted on behalf of the wife that the husband could live with his new partner.  I have no evidence that this option is in fact open to him, as she provided no affidavit in the proceedings.  The husband gave uncontradicted evidence that his partner’s parents are soon to come from Country K to stay with her and he therefore will be unable to live in the premises.

5. The wife has had exclusive occupation of the former matrimonial home for two years since the parties’ separation.  The orders sought by the husband will in no way affect her occupation and enjoyment of that property.

6. The husband offered consent to orders that he pay all arrears on the mortgage of the C Town property and maintain monthly instalments in a timely manner.  Again, that arrangement would in no way affect the wife’s use and enjoyment of the former matrimonial home.

Conclusion

1. For these reasons I conclude that there is no reason to deny the husband the benefit of exclusive occupation of the C Town property pending further order.  It may be that this arrangement will be short-lived, in the event that the wife’s application for sale of the C Town and Suburb E investment properties on an interim basis is successful at some time in the future.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 December 2013

Associate: 

Date:              20 December 2013