Wozniak & Carrey

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wozniak & Carrey [2025] FedCFamC1F 19  

File number(s): PAC 308 of 2024
Judgment of: GILL J
Date of judgment: 23 January 2025
Catchwords:  FAMILY LAW – PROPERTY – Interim application by the wife seeking that the husband vacate their shared residence and she have sole occupancy – Response application by the husband that the shared residence be sold – Where both parties have made allegations of family violence against the other – Where the level of dispute between the parties means they should not live in the same house – Where the husband has viable alternative accommodation options – Where the parties’ financial circumstances would not be improved by the selling of the shared residence – Husband to vacate the shared residence with seven days
Legislation:  Family Law Act 1975 (Cth) s 114
Cases cited:

Elliot & Hopkins (No 2) [2023] FedCFamC1A 142

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Division: Division 1 First Instance
Number of paragraphs: 48
Date of hearing: 16 January 2025
Place: Heard in Newcastle, delivered in Canberra
Counsel for the Applicant: Mr Macarounas
Solicitor for the Applicant: Rowlandson & Co Solicitors
Counsel for the Respondent: Ms Tabbernor
Solicitor for the Respondent: Long Saad Woodbridge Lawyers

ORDERS

PAC 308 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR WOZNIAK

Applicant
AND:

MS CARREY

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:

1.That within 7 days of these orders, the husband shall do all things necessary to vacate the property situated at and known as B Street Suburb C NSW  being the whole of the land contained in folio identifier … (“the Suburb C Property”).

2.Upon the husband vacating the Suburb C Property in accordance with Order 1 and pending further order:

(a)Save and except for as provided by these orders, the wife be granted exclusive occupation of the Suburb C Property; and

(b)The husband be restrained from entering upon the Suburb C Property except upon the express invitation of the wife or for the purpose of Order 4.

3.Pending further order: 

(a)The parties are hereby restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the Suburb C Property. 

(b)The wife shall pay all mortgage repayments, council rates, utilities and outgoing for the Suburb C Property as and when they fall due and keep the husband indemnified with respect to the same. 

(c)On a without admissions basis, the wife be restrained by injunction from doing any act or thing which has the effect of devaluing the Suburb C Property or causing damage or destruction to the property or any part of it or its surrounds or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property. 

4.The husband is permitted to access the two sheds located at the rear of the Suburb C Property, and…

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Details
Case
[2025] FedCFamC1F 19
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Wozniak & Carrey dealt with a contentious dispute between the parties over their shared residence. The wife sought an order for the husband to vacate their shared home, while the husband sought an order for the sale of the home. Both parties had made allegations of family violence against each other, which compounded the dispute. The court was required to decide on the appropriate interim orders for the shared residence, balancing the safety and well-being of the parties against their respective property interests.

The court considered the nature of the dispute, the allegations of family violence, and the respective positions of the parties. The judge noted that the level of dispute between the parties meant they should not continue to live in the same house. The husband had viable alternative accommodation options, and the parties’ financial circumstances would not be improved by the sale of the shared residence. Given these factors, the judge concluded that the husband should vacate the shared residence within seven days. The wife was granted exclusive occupancy of the property, subject to certain conditions regarding the husband's access to the sheds on the property. The wife also provided undertakings to mitigate the risk of property damage.

Ultimately, the court ruled that the husband must vacate the shared residence within seven days. The wife was granted sole occupancy of the property, with exceptions for the husband's access to the sheds. The husband was permitted to access the sheds for up to eight hours per week, provided he gave the wife 24 hours' notice. The wife was restrained from damaging or devaluing the property. The application for the sale of the home was dismissed. The judge's decision aimed to balance the safety and well-being of the parties with their respective property interests, while also considering the practicalities of the situation.

Orders

Orders of the court

PAC 308 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WOZNIAK

Applicant

AND:

MS CARREY

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:

1. That within 7 days of these orders, the husband shall do all things necessary to vacate the property situated at and known as B Street Suburb C NSW being the whole of the land contained in folio identifier … (“the Suburb C Property”).

2. Upon the husband vacating the Suburb C Property in accordance with Order 1 and pending further order:

(a) Save and except for as provided by these orders, the wife be granted exclusive occupation of the Suburb C Property; and

(b) The husband be restrained from entering upon the Suburb C Property except upon the express invitation of the wife or for the purpose of Order 4.

3. Pending further order:

(a) The parties are hereby restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the Suburb C Property.

(b) The wife shall pay all mortgage repayments, council rates, utilities and outgoing for the Suburb C Property as and when they fall due and keep the husband indemnified with respect to the same.

(c) On a without admissions basis, the wife be restrained by injunction from doing any act or thing which has the effect of devaluing the Suburb C Property or causing damage or destruction to the property or any part of it or its surrounds or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

4. The husband is permitted to access the two sheds located at the rear of the Suburb C Property, and for the purposes of this Order:

(a) On a without admissions basis, the wife is restrained from removing, disposing of, or damaging any of the items in the sheds.

(b) Upon giving the wife 24 hours written notice (text message being sufficient), the husband is at liberty to access the sheds (only) and is restrained from approaching the residential dwelling of the property.

(c) For the purpose of Order 4, the husband is permitted to access the sheds for a period of 4 hours not more than twice per week.

5. The application in a proceeding and response are otherwise dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the husband also raised concerns as to access to the sheds on the property, regarding whether the wife may damage the property, the orders and undertakings offered by the wife, and her hope to retain the property undermine the risk that such damage will come about.Conclusion A sole occupancy order should be granted, incorporating an exception to allow the husband to attend upon the sheds on the property, and subject to the undertakings offered by the wife.ORDERS FOR THE SALE OF THE HOMEPrinciples Orders for the sale of property effect a change in the property rights held by the parties as, on the sale of the property those rights are extinguished. As a consequence, such orders require consideration of the adjustment of property in accordance with authorities such as Stanford. The parties each tendered a balance sheet setting out their assertions as to the pool of property the subject of the proceedings. Their contentions as to the pool are similar to each other. Each seeks an adjustment of the property interests. The positions of the parties intrinsically accepted that it will be just and equitable to make an adjustment of the parties’ interests in the property, and, in particular, in relation to the former home, either by its sale or by its transfer to one party. It is well established by authority that while partial property adjustments are available, the preferred option is a once and for all approach to the making of adjusting orders. This preference gives way to circumstances that adequately justify a more fragmented approach. Frequently, when dealing with the proposed sale of property, the fragmented approach is justified by the need to preserve the value of the pool of property from which the ultimate adjustment will be made. This may arise in circumstances where the costs of retention are unable to be met, and as a result, the pool of assets is placed in a significantly worsened position by the interim retention of the property, which will ultimately need to be disposed of.Circumstances The controversy in this instance boiled down to, on the one hand, the wife’s preference to retain the property, and the husband’s contention that such was not an achievable outcome for her in these proceedings. The husband seeks that the net property pool be divided on an equal basis. The wife seeks a division of the pool on a seventy-thirty basis in her favour. At present she seeks no adjustment of the parties’ superannuation interests in achieving such a division, although the parties are at liberty to amend their final orders sought. Such a division, on the wife’s case, would necessitate, on the pool as asserted by her, the husband to receive about $1.2 million out of a total pool of just over $4 million. She asserts that he holds individually net assets of about $11,000 and superannuation of about $220,000. Accordingly, he would need to receive further approximately $1 million. The wife holds, individually, various accounts and shares valued at about $75,000, superannuation of about $685,000 and a family trust under her control of about $250,000.

Ratio Decidendi

Legal Principle Established

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