WILKES & BOLTON - [2018] FamCA 309

FAMILY COURT OF AUSTRALIA

WILKES & BOLTON

[2018] FamCA 309

FAMILY LAW – PROPERTY – Exclusive Occupancy – where the wife resides in Queensland and the Melbourne home is unoccupied save for occasions when she comes to Melbourne to visit an ill friend – where the husband is living with his parents and is unemployed – where there is no inconvenience to the wife having regard to her financial position for her to be able to pay for temporary accommodation when in Melbourne – consideration of the distinction between the alteration of property interests and the right to use property – where the husband should have exclusive occupancy of the property until further order.

FAMILY LAW – SPOUSAL MAINTENANCE – where the husband has traditionally been at home and has not worked for many years – where the husband is now 51 years of age – where he seeks spousal maintenance in anticipation of retraining to enter the workforce – where the wife maintains that the husband has not made efforts to obtain employment – where the court accepts that the husband’s position of not having worked and requiring retraining is unchallenged – where spousal maintenance should be ordered.

FAMILY LAW – SPOUSAL MAINTENANCE – QUANTUM – where the wife earns $10,000 per week and says it has expenses of just over half that sum as a medical practitioner running clinics in Queensland – where the husband is unemployed and has been so for a number of years – where the husband is living with his family – where the husband anticipates he would be spending $815 per week if that money was available to him – where the wife wanted the court to make any order limited to basis expenses – where it is not appropriate for the matter to be approached in that way – where the court makes an order for the quantum sought by the husband on the basis that it is reasonable.

Family Law Act 1975 (Cth)

Higgins & Higgins [2018] FamCA 243
Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436
Redman & Redman [1987] FamCA 2; (1987) FLC 91-805; (1987) 11 Fam LR 411

APPLICANT:

Mr Wilkes

RESPONDENT:	Ms Bolton
FILE NUMBER:	MLC	10766	of	2017
DATE DELIVERED:	10 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9, 10 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT

SOLICITOR FOR THE APPLICANT:

Ms Dellidis

Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE APPLICANT

Ms Colla

Goldstone Family Lawyers

Orders

By 4.00pm on Friday 18 May 2018, the wife provide the husband with all things necessary to enable him to have sole occupancy of B Street, Suburb C, until further order.
That the wife pay maintenance to the husband of $815 per week until further order.
That the wife also pay as maintenance for the husband the following payments in respect of the German motor car:
(a)       The lease payments as they fall due;
(b)       The registration of the vehicle; and
(c)       The insurance on the vehicle.
Should any party seek costs arising out of these interim proceedings, that application shall be in the form of a written submission to be filed and served by no later than 4.00pm on 24 May 2018 and any reply thereto be filed and served by 4.00pm on 31 May 2018 after which, any such determination shall be considered and dealt with in chambers.
That the application in a case filed by the husband on 6 April 2018 and the wife’s response thereto filed 8 May 2018 are 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 Wilkes & Bolton 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 MELBOURNE

FILE NUMBER: MLC 10766 of 2017

Mr Wilkes

Applicant

And

Ms Bolton

Respondent

REASONS FOR JUDGMENT

Mr Wilkes (the husband) and Ms Bolton (the wife) began their relationship in 1987, married in 1993 and had two children one of who is an adult and then there is D now 15 years of age. The marriage came to an end in February 2017.
The substantive proceedings before the Court relate to the determination of the parties’ respective property interests. The exact value of that property is uncertain at the moment and there is a conciliation conference pending. Suffice to say, it is valued at some millions of dollars.
The interim issue immediately relevant concerns two things:
(a)Spousal maintenance sought by the husband; and
(b)Use and occupation of what was once the family home.
The husband sought interim orders by an application in a case filed on 6 April 2018. He now seeks orders for:
(a)Sole use and occupation of B Street, Suburb C; or
(b)A cash sum of $15,000 to re-establish himself in another property and $800 per week to cover his rent;
(c)Spousal maintenance of $815 per week; and
(d)The wife to continue to pay lease payments and various stipulated expenses on his motor car.
On the day before this interim hearing in the judicial duty list, the wife filed a response seeking that the husband’s application be dismissed and that he pay her costs.
Each party relied on affidavit material and the hearing in a busy duty list had to be truncated because of time and volume of work. The parties and the Court sat until late.
The other matter of note relating to this case was that a return date had been given to the husband’s initiating application. That was 16 January 2018 after the application had been filed on 18 October 2017. That timeframe must mean that it could hardly be said that there were unknowns in the dispute but that certainly seemed to be the case. In part, it was said by counsel for the wife that as her client lived in Queensland, was a health professional, had two children to care for and a solicitor in Victoria, things were slow in getting done.
At the hearing before a registrar in January, the wife appeared to represent herself. She had not filed any material to assist the Court at that time so the conference was largely unproductive.
When the wife filed her formal substantive response in April 2018 (contrary to the registrar’s orders that it be done by 20 February), she sought orders that there be an adjustment of property as the court deemed just and equitable. That was curious having regard to at least the husband’s understanding of the assets as shown in an aide memoire at the initial hearing indicating that there were what was described as “hard” assets with a net value of almost $4 million and a similar amount in a self-managed superannuation fund. Of the “hard” assets, there seemed little dispute about who was the legal owner. Thus, almost two months later and with the assets still being described much the same way, the wife attended this interim hearing with an un-particularised application for final orders. Her counsel said that will be rectified by the time of a forthcoming conciliation conference.
The husband’s application for substantive alteration of property was particularised in the initiating document and he indicated that after consideration of the alteration of specific interests, he was seeking an overall adjustment of 52.5 per cent of the assets in his favour.
In January, the registrar also ordered various valuation exercises be undertaken but it seems that has not yet come to fruition.
These matters were said to explain why the husband brought the present interim application.
In respect of the sole occupancy order, the former home now appears to be unoccupied. The husband wanted to return there. The wife’s opposition was that she has a former employee who is a friend here in Victoria who is very unwell. The wife therefore wants to come to Victoria on some basis (counsel suggested it might be fortnightly) and also bring (occasionally) the children and stay in this former home which has all of the furnishings and motor car necessary to enable whoever lives there to be comfortable. It is a four bedroom home in an affluent area of Melbourne and, if the aide memoire is any guide, the husband considers it to be worth about $5 million and it has a modest mortgage.
The wife’s objection to the husband moving there was also said to be that she wants to retain the home as it has sentimental attachment for her. It is not in dispute that she lives in Queensland and has her professional life there at the moment.
The husband is currently living with his parents and he finds that unsatisfactory.
The power to make an order for sole occupancy is found in s 114 of the Act. The Court should only make such an order if it is proper but the discretion is otherwise undefined. The husband does not seek the substantive right of ownership of the property but rather, occupancy until further order.
It was not suggested by the wife that the court does not have the power to make such an order but rather that it should not exercise its discretion in favour of the husband.
Much of the wife’s affidavit evidence was about what the husband had or had not done with money and it was submitted that he had not adequately accounted for things. However, it was not said by the wife that the husband was not entitled to a property settlement nor that there was any other particular reason why this otherwise uninhabited house should not be occupied. It was not obvious that the wife was going to rent it out. It is clear that although the husband deposes to the fact that he is 51 years of age and unemployed, the wife disputed that fact. She said she did not know why he was unemployed but, and relevant to the spousal maintenance issue, the husband deposed to the fact that in the very early stages of their marriage, he had been the “stay at home dad” whilst the wife worked in her profession. She certainly mentioned that he had worked and also helped in her business but that evidence was presumably led to show that he had skills. Indeed, he deposed to the fact that he hoped to retrain and obtain teaching skills. What the wife did not say was that his description of not being an earner of income was untrue.
I return to that income situation in a moment but in respect of the house issue, the wife deposed in her financial statement to earning $10,000 per week with expenses of $5,300 per week “plus”. She has expenses associated with the children including the adult child who is a student at university. The wife therefore has an excess of income over expenses and her counsel did not submit that she could not meet any order sought by the husband. The issue in the spousal maintenance was rather that the husband had not met the threshold.
It will be seen therefore that the wife has ample resources to use for the anticipated travel back and forth to see her ill friend. I see no reason why she cannot afford to pay for accommodation taking into account that the friend lives in Suburb E so the trip will be to the city area and they are only for the weekends.
In Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436, the High Court of Australia heard a challenge to the power of this Court to make an order for exclusive occupancy in which it was asserted that it was an order altering property rights and therefore restricted. The High Court said this:
The order under consideration declares that the wife shall have exclusive occupation of the matrimonial property until such time as all three of the children of the marriage shall have become self-supporting or until she shall have remarried whichever event shall first occur. In King, the Full Court of the Family Court characterized a similar order in the following terms (1977) 30 FLR, at p 167;3 Fam LR, at p 11,570; (1977) FLC, at p.76,582:
. . . the effect of an exclusive occupation order is that the owner, who is otherwise entitled to possession and occupation, is thereafter deprived of the right to occupy during the term of the order. It seems clear that this effects an alteration in the nature of his or her interests in the property. The attributes of ownership have been changed by the order; in effect the right to occupy is settled exclusively on the wife during the term of the order. When the term expires the parties revert to their former position as joint owners, with such rights and remedies as are open to them. It follows that an order which grants one spouse occupation rights in the matrimonial home to the exclusion of the other spouse, whether or not that other spouse is a joint owner or a sole owner, is an order settling property within the meaning of s. 86 of the Matrimonial Causes Act and an order altering the interests of that other spouse in the property within the meaning of s. 79 of the Family Law Act." (the citation of King omitted)
Their Honours departed from that approach. After examining the previous matrimonial causes legislation, their Honours said the Family Law Act had introduced an important distinction between orders altering interests in property and “other orders”. These “other” orders might be varied but the opportunity to alter property orders was limited. Indeed, their Honours observed that the property issue was about altering rights. Thus, the issue in that case was of whether an injunctive order excluding a party from a home was an alteration of property rights.
The Court then said:
[14]In our opinion, therefore, s. 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: Stow v. Mineral Holdings (Aust.) Pty. Ltd. [1979] HCA 30; (1977) 51 ALJR 672, at p 679; Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. [1982] HCA 69; (1982) 158 CLR 327, at pp 343, 350-351. It does not exclude every interest which is not assignable or transferable (cf. per Mason J. in Meneling Station [1982] HCA 69; (1982) 158 CLR 327, at p 343.). Thus an order under s. 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring.
[15]It follows, then, that s. 79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a s. 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using that expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property.
Thus, I am not, by the orders proposed by the husband, altering the property rights of either party. It remains unclear immediately what legal and equitable interests each party has in the Suburb C property but at least from the perspective of the husband, he included it in the assets and liabilities of either of them for the purposes of the property settlement proceedings. The entitlement to occupation should be approached on the basis of use of rights. In my view, the correct approach is to determine whether it is proper to exclude a party (in this case the husband) from a property which he does not seek to ultimately retain in his final proposals for alteration of property rights. The discretion is wide but obviously not untrammelled.
The husband referred to the home as a property in which the parties lived and therefore, he has an attachment to it. The wife wants to use it for the purposes of her visits and, depending upon how she pleads her final relief, may want to become the sole proprietor of it. No order that I am asked to make affects either of those situations. Section 114 being an injunctive power calls into questions such matters as fairness but also the balance of convenience.
I am persuaded that the wife will only be marginally inconvenienced by being excluded from a property which she can pursue very shortly in her final property settlement. The balance of convenience here entitles me to consider the complications arising from the husband having to rent alternative accommodation and rely upon the wife to pay it. He would have to acquire furnishings when the Suburb C home is already furnished. When those matters are balanced, the convenience favours the husband. Accordingly, the husband should have exclusive occupancy until further order.
I turn then to the spousal maintenance issue. It was difficult to initially understand what the wife’s argument was but when challenged, her counsel confirmed that the issue related to his entitlement. That is, the threshold point.
The husband’s evidence about his background history has already been mentioned. Curiously, the wife specifically referred to paragraphs of his affidavit but did not address his assertions. He said he was unemployed and he filed a later affidavit to say that he had long been out of the workforce and at his age, he needed to retrain. The wife’s only response addressing the point was that she did not know why he was unemployed. Her counsel submitted the husband had not set out what attempts had been made to find work and that meant he did not meet the threshold. That ignored the unchallenged evidence of the husband that he had been the homemaker and had not worked for almost 20 years and that he accepted that he would now need to retrain.
The husband has no income and it is clear that he cannot adequately support himself without either employment or maintenance. As the wife was aware of this evidence for some weeks and had not raised the issue until she filed her affidavit on the day before this hearing, I found her approach perplexing. No doubt she knew that, in the duty list, there would be inadequate opportunity to cross-examine the husband and the matter would have to be determined “on the papers”. Her complaint that he had not provided corroboration of his status was a bit cute in the particular circumstances the details of which she well-knew at separation and for the many years before that.
There is therefore no reason for me to doubt that the husband does not have employment and is desirous of retraining so that he can obtain employment.
Counsel for the wife referred me to my own decision in Higgins & Higgins [2018] FamCA 243 but that decision has no resemblance to the facts here. In that case, the spousal maintenance issue was part of the final trial and I found there was no evidence as to why the applicant could not adequately support herself. Here, on an interim level, the husband has made the assertion of being unemployed (and why) and the wife did not seriously challenge that or indicate what skills he presently has such that he could readily be employed.
Section 72 of the Act provides that to establish an entitlement to spousal maintenance the applicant must show an inability (relevantly here)“to support himself adequately”, by reason of one or more of the factors identified in the section.
One of those factors relates to “age or physical or mental incapacity for appropriate gainful employment” but yet another relates to “any other adequate reason” provided it affects the ability of the husband to support himself. The evidence to support the conclusion in the first of those two is, in my view, clear but in respect of the second, I am satisfied that the husband acknowledges that he will have to support himself in the future but that he sees the present dilemma of his age as a problem. The wife did not say otherwise. There was an interesting commentary in the wife’s affidavit that the husband could live with his parents and presumably seek their financial help. It is perplexing that at his age (and presumably theirs) he should have to do that when the evidence at least points to the fact that the husband has been supportive of the wife’s career by the role he asserts (and the wife does not seem to deny) and all of that has enabled the wife to have a substantial income by community standards.

I find the husband cannot support himself adequately without maintenance.
Counsel for the wife then began to query the husband’s expenses indicating at first that all the court should consider was basic things such as food and utilities. That was inappropriate and when I challenged her, she returned to the listed expenses which the husband has totalled at $815 per week. It was asserted that some of them were extravagant. I did not have the benefit of the wife’s equivalent standards because she did not provide them but having regard to her income and excess over expenditure I conclude she is not living in restricted or impoverished conditions.
None of the items seem unusual and clearly have to be seen as guesses because the husband has not had that benefit until now which would enable him to spend that money. I have presumed that the expenses would be incurred if he had the money.
In Redman & Redman [1987] FamCA 2; (1987) FLC 91-805; (1987) 11 Fam LR 411 the Full Court, dealing with an interim hearing for spousal maintenance, said the evidence need not be so extensive and the findings not so precise. If I am wrong about the husband’s expenditure, adjustments can be made at trial of the property proceedings.
In the course of discussion, I asked whether the wife wanted further material produced by the husband and she was reticent to say that she did because it would have meant bringing the case back again. So too, the husband wanted the matter determined on the basis of the evidence. I have made clear however, that these orders are intended to continue until the court orders otherwise.
The husband also has a car which is registered to an entity apparently controlled by the wife. It seems there are tax benefits in it being leased. Those benefits presumably include deductions for insurance and registration. The husband sought those benefits continue and counsel for the wife acknowledged that it was better for the wife to control those than have a cash payment being made to the husband which might not meet its proper end. Accordingly I shall make an order until further order that the wife pay those expenses.
The application in a case also sought orders relating to valuation and for the amendment of ASIC records to show the husband’s continued role in a number of entities. The wife’s response was simply to dismiss the application which is at odds with an obligation to get the property dispute resolved particularly with a conciliation conference pending. I have presumed that the wife will actively participate in the proceedings but for that to occur, exchanges of information are necessary. No doubt the registrar will be vigilant to ensure that the necessary discovery has occurred when the conference day arrives failing which, costs may be considered.
In respect of the valuations, the wife’s affidavit said that valuers had been appointed and she “considered” the orders sought by the husband unnecessary but that statement was made only the day before this hearing. Bearing in mind the initial hearing before the registrar occurred in January, the wife might consider a more active approach to the resolution of what appears on its face as a straight forward matter. On the basis that she is correct about those valuations, and counsel for the husband did not press them, I need do nothing further about that part of the application.
Both parties sought costs in respect of this hearing. Rather than bring the parties back, I shall make orders that any application be dealt with on written submissions to be filed within 14 days and replies within 7 days thereafter.
The respective application and response for interim orders should be otherwise dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 May 2018.

Associate:

Date: 10 May 2018