Wozniak & Carrey
[2025] FedCFamC1F 19
•23 January 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The wife, Ms Carrey, born in 1966, and the husband, Mr Wozniak, born in 1962, commenced living together in 2000. In about 2003 the parties purchased B Street, Suburb C, NSW (“the Suburb C property”). There are two children of the relationship, Mr X, born in 2004, and Y, born in 2008.
The parties had an initial period of separation (under the one roof) on 12 March 2023 and family law proceedings were commenced. They reconciled on 15 May 2023 and shortly after discontinued their proceedings. They separated again in October 2023 and recommenced proceedings for the settlement of their property. They and their children remain living on the Suburb C property.
This judgment concerns interlocutory relief sought by each of the parties pending their final hearing which is scheduled for August this year.
ORDERS SOUGHT
The wife seeks exclusive occupation of the Suburb C property, that the husband vacate the property within seven days and that he be restrained from entering the Suburb C property save for restricted access to two sheds located on the property. The wife further seeks that the parties be restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the Suburb C property and the wife will pay all mortgage repayments, council rates, utilities and outgoings for the Suburb C property and keep the husband indemnified.
The husband resists the sole occupancy orders and seeks orders to sell the Suburb C property and for the proceeds to be retained in a lawyer’s trust account pending final resolution.
Documents relied upon
The wife relied on the following documents:
(a)Application in a Proceeding filed 18 December 2024;
(b)Affidavit of Ms Carrey filed 18 December 2024;
(c)Financial statement filed 4 March 2024;
(d)A minute of amended orders sought; and
(e)Outline of Case
The husband relied on the following documents:
(a)Response to an Application in a Proceeding filed 9 January 2025;
(b)Affidavit of Mr Wozniak filed 9 January 2025;
(c)Financial Statement of Mr Wozniak filed 9 January 2025; and
(d)Outline of Case
PRINCIPLES
Sole occupancy
The sole occupancy order is sought pursuant to s 114 of the Family Law Act 1975 (Cth), which empowers the court to make injunctions as it considers proper, including as to the occupation of the former matrimonial home. As identified in Elliot & Hopkins (No 2) [2023] FedCFamC1A 142, whilst mere tension in the home may not be sufficient to justify the step of removing a person from their home, “proper” does not require the circumstances to be either intolerable or impossible. It is sufficient that it “would not be reasonable or sensible or practicable for the parties to continue to reside in the premises together.” In determining such an application, the balance of convenience and the conduct of the parties are relevant considerations, as are the circumstances of each of the parties’ accommodation and living arrangements should such an order be made.
In the context of interim proceedings such as these, the court is to be mindful that the evidence is untested, and in such a circumstance, contested factual findings are not available in establishing what is proper.
In this case each of the parties alleged the other had engaged in family violence. The wife made extensive and serious allegations against the husband, including of serious physical assaults, and a threat to seriously harm the wife. The husband asserted that the wife’s allegations are false, and that her behaviour has required him to record interactions with her as protection against such behaviour.
Of those contested allegations, a number of matters did not seem contentious.
The first is that the wife received injuries at the hand of the husband in 2009. These were supported by Exhibit W3. The husband accepted that the wife had received such injuries upon his hands coming into contact with her. He now could not recall how such had happened, but that it had occurred as a result of aggressive behaviour by the wife. That is, there was no dispute as to injury, although there was dispute as to fault.
The second is as to some form of incident involving a weapon in early 2024. The husband contends the wife threatened him with a weapon, whilst the wife contends that the husband commenced recording by audio and acting as though she had a weapon when she did not. Whilst the substance of the incident is disputed, the occasion of aggressive behaviour by one or other of the parties is not.
The third is as to an incident in late 2024 when both parties attended upon the police station. Again, they are at odds with who the aggressor was, but not of the seriousness of the situation as calling for a need to attend upon the police.
A fourth but dated incident that it not in dispute is abuse by the husband of the wife in posting, in 2014, a notice to their bedroom door referring to her as a short pig who was not welcome.
A fifth example is that both parties allege that the husband audio records the wife. The husband asserts this to be necessary on advice from the police due to the wife’s conduct toward him, whilst the wife describes the husband’s recording of her as aggressive and, as in in the weapon incident above, a means to make false allegations against the wife. Whilst what has occurred between the parties is disputed, the fact of such recording is indicative of how bad the interactions between the parties are.
Lastly, the parties agree that in the context of an argument in late 2024 the wife broke a wall. She says she did so tripping over a broom trying to move away from the husband. The husband says she deliberately broke the wall with a broom. Either account is redolent of significant and serious conflict.
Although the husband pointed to matters that may cast doubt upon the wife’s claims about him, for example her previous withdrawal of allegations on the basis they were not true, even without being able to determine the factual contests between the parties, these circumstances, of serious, persistent and potentially dangerous conflict, are sufficient to justify a sole occupancy order. The parties cannot live in the same house.
A number of other considerations are necessary before determining that such an order should be made.
The first is that the husband asserted that injunctive relief in the form of orders prohibiting the parties from discussing their financial matters in the home should be sufficient to reduce the conflict experienced within their common residence. This is on the basis that the events claimed by the parties appear to centre on their arguments as to their financial circumstances.
Even assuming this to be the case, such an injunction is insufficient in the face of such egregious clams made by the parties in relation to each other.
The second is as to living arrangements available to the husband if he is so excluded. He has recently purchased a small dwelling in Suburb E, not far from the home. This two bedroom dwelling is described by him as currently uninhabitable, lacking air conditioning and furnishings. By Exhibit W1 the wife presented the real estate listing that preceded the purchase by the husband. Even assuming that the dwelling is presented in a more positive light by the real estate marketing than it appears in reality, it is eminently inhabitable. Whilst the husband would, at some point prefer to rent it out and derive income, in the short term leading up to the trial in August 2025 it appears to form a viable alternative. Whilst the husband may have limited finances to furnish the dwelling, it is not clear that this is an insurmountable problem.
The wife also points to the prospect of the husband living with his nearby parents. The husband does not desire to do so. However, given their undisputed close support for him, they would seem to provide some added, albeit potentially short term solution for the husband.
Although the husband also identified that the small dwelling would be insufficient for his son or sons to stay with him, it is not clear why his relationship with them could only be conducted at his residence, noting that one is an adult and the other in his mid-teens.
Where the husband has such options, such circumstances further support the making of a sole occupancy order.
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 HOME
Principles
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.
It can be seen that combining all of her superannuation (which at present she does not propose to split), her accounts and shares, and the trust assets comes to about $1.1 million.
At present there is a debt of $205,000 over the home, which the wife would be required to finance. She has described that her investments were used as security for the mortgage on the home, she previously preferring a mortgage in order to preserve sufficient investment from which to derive an income.
Even with the income from her investments, the wife’s expenditure currently, on her assertion, exceeds her income by a significant amount. By her financial statement, her expenses exceed her income by more than $2,000 per week.
As submitted for the husband, it is difficult to identify any prospects for the wife to secure the necessary loan (even at its least amount, and assuming that all of her superannuation and investments went to the husband) to allow the retention of the home.
That is, on the circumstances as currently identified by the parties, there is no good prospect for the wife to retain the home. Although the wife complains that she has only had late notice of the husband’s pursuit of the interlocutory orders for the sale of the home, she was unable to point to any fallacy in the husband’s analysis, or to any means that she might have to otherwise finance the house.
In the meantime, the wife proposes to meet and to indemnify the husband in relation to the costs associated with the house and her occupation of it. Given the trust monies she has the capacity to do this. It may well be thought that this would also form her capacity to rehome herself in the interim. Either of those outcomes appears likely to erode the monies currently invested on behalf of the wife. That is, either on sale or retention there will be some erosion of assets as the wife funds accommodation for herself and the parties’ children.
What can be taken from this is that the retention of the home, and the meeting of expenses in relation to the home, has not been identified to leave the parties in a worse position than the sale of the home.
Under those circumstances there is no protective imperative to justify the making of an order for sale in advance of the rapidly approaching final hearing.
The absence of such an imperative, even in the apparent circumstances of unreality of the wife’s proposal to retain the property, means that the property adjustment proceedings should not be fragmented by the sale of the house prior to the final hearing.
Conclusion
The husband’s application for sale will be refused.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 23 January 2025
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