YOUNAN & YOUNAN

[2012] FamCA 1042

FAMILY COURT OF AUSTRALIA

YOUNAN & YOUNAN [2012] FamCA 1042

FAMILY LAW – PROPERTY – Application for interim sole use an occupation of the former matrimonial home
FAMIILY LAW – CHILDREN – Interim parenting orders by consent

Family Law Act 1975 (Cth)

Bassett v Bassett (1975) 1 All ER 513
Davis & Davis (1976) FLC 90-062
Mikele &  Mikele [2008] FamCA 651
P & P unreported
Redman & Redman (1987) FLC 91-805
S & S [2002] FamCA 59
Williamson & Williamson (1978) FLC 90-505

APPLICANT: Ms Younan

RESPONDENT: Mr Younan

FILE NUMBER: MLC 8961 of 2012

DATE DELIVERED: 11 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE APPLICANT: Schetzer Constantiou

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Pryles & Co

UNTIL FURTHER ORDER IT IS ORDERED BY CONSENT THAT

1. The children B born … October 1999 and C born … December 2001 spend time with the husband:

   a.During the gazetted school term as follows:

   i.commencing 12 December 2012 each alternate Wednesday from after school until 8:00pm;

   ii.commencing 13 December 2012 each Thursday from after school until 8:00pm;

   iii.commencing 14 December 2012 each Friday from after school until 5:00pm Saturday;

   b.for the December 2012/January 2013 school holidays as follows:

   i.from 5:00pm on 21 December 2012 to 5:00pm on 24 December 2012;

   ii.from 3:00pm on 25 December 2012 until 5:00pm on 26 December 2012;

   iii.from 5:00pm on 30 December 2012 until 5:00pm on 6 January 2013;

   iv.from 5:00pm on 13 January 2013 until 5:00pm on 20 January 2013; and

   v.from 5:00pm on 25 January 2013 until 5:00pm on 27 January 2013.

2. The children live with the wife at all other times.

3. The parties attend upon Ms D on 19 December 2012 for the preparation of a Family Report, the cost of the report to be paid initially by the husband with the wife to reimburse the husband half of the cost upon receiving the $100,000 referred to in paragraph 4 hereof and such report to be released to the parties by 4:00pm on 16 January 2013.

4. On or before 19 December 2012 the husband shall pay to the wife’s solicitors the sum of $100,000 as an interim property settlement.

5. Save in the ordinary course of business each party be restrained from:

   a.Selling, alienating, encumbering or in any way dealing with any assets standing in their names whether solely or jointly with any other person and in particular the artefacts, contents, furniture and effects contained within the former matrimonial home known as and situated at K Street, Suburb L Victoria without the written consent of the other party first having been obtained;

   b.Divesting themselves of any interest or control or reducing the value of their interests in any company, trust and/or partnership in which they have an interest without the written consent of the other including but not limited to E Pty Ltd, F Pty Ltd, G Pty Ltd, H Pty Ltd, Younan Family Trust, Mr Younan Family Trust, I Younan Partnership and J Younan Partnership.

IT IS ORDERED BY THE COURT THAT

1. By 4:00pm the husband vacate the former matrimonial home known as and situated at K Street, Suburb L Victoria and until further order the wife have the sole use and occupation of the property.

2. All extant applications for parenting orders be adjourned to the Senior Registrar’s Duty List at 10:00am on 30 January 2013.

3. All questions of costs be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Younan & Younan 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 MELBOURNE

FILE NUMBER: MLC 8961  of 2012

Ms Younan 

Applicant

And

Mr Younan 

Respondent

REASONS FOR JUDGMENT  

1. The husband and wife in this case were married in 1991 and separated in early September 2012 when the wife left the former matrimonial home with the two children of the marriage B who is 13 years of age and C who is almost 9 years of age.

2. The mother is 52 years of age and works part time. The husband who is also 52 years of age also works part time and is involved in the running of a family business.

3. The wife filed an Initiating Application on 2 October 2012 in which she sought various interim orders including an order for sole use and occupation of the former matrimonial home situated at K Street, Suburb L, Victoria, orders for spousal maintenance, that the husband pay the NAB mortgage instalments as and when they fall due, rates taxes and insurances with respect to the former matrimonial home and either litigation funding or an order pursuant to s80(1)(h) of the Family Law Act 1975 (Cth) in the sum of $100,000 and injunctive relief to preserve property. The husband filed a Response to the Initiating Application on 27 November 2012, two days before the hearing. He sought orders that the children live with him each alternate week and for half of all the school holidays, that a welfare report be prepared by Dr M, that he have the sole use and occupation of the former matrimonial home and that the wife and her servants and agents be restrained from interfering with his quiet enjoyment of the property and injunctions for the preservation of property.

4. The parties were able to reach agreement in relation to a number of issues including the time the husband is to spend with the children until the further hearing of this matter, effectively half of the forthcoming school holidays, that they attend upon Ms D who is to prepare a Family Report which is to be released by 16 January 2013, that the husband pay the wife the sum of $100,000 by way of part property settlement and mutual injunctions to preserve property. Subject to the orders I make it is agreed that the matter will either be adjourned for hearing in the Judicial Duty List or in the Senior Registrar’s List in late January 2013. The parties have been unable to agree upon which of them should have the right to occupy the former matrimonial home or who should pay the mortgage and outgoings with respect to the property.

5. This was the first return date of the wife’s application and, as is the case in most interim hearings, proceeded on the basis of the affidavits filed by the parties and submissions by their respective Counsel. I am not in those circumstances in a position to make any findings of fact where those facts are in dispute and untested. Interim proceedings such as these ones are necessarily an abridged process and the Court should not be drawn into issues of fact where findings are not possible and should focus on those matters that are not in dispute. This was further complicated by the fact that the husband did not file his Response, his affidavit or his statement of financial circumstances until 27 November 2012 which did not give the wife an opportunity to respond.

6. The wife says that during the marriage she was and has been since separation the primary caregiver for the two children and that she and the children should be allowed to return to the former matrimonial home. They are currently residing in the home of her sister and brother-in-law and their two youngest children. The wife says it is a small 4 bedroom home and that she is currently sharing 2 bedrooms with the children. One of her nieces has to spend most of her time with either her grandmother or her boyfriend. She says the current arrangements are temporary and that “...it does not offer privacy nor do our children feel comfortable inviting their friends to the home.” It is clear from the husband’s affidavit that the children are attached to the home and that they do not find their current accommodation satisfactory. The wife also deposes that although her parents reside nearby her father is 88 years of age, is not in good health,  requires constant care and attention from her mother and that it would not be possible or suitable for her and the children to live with her parents.

7. The husband disputes that the wife was the primary caregiver for the children during the marriage. However there are a number of aspects of the evidence which suggest that it is more likely than not that the wife was the primary caregiver for these two children during the marriage. When the wife became pregnant with the parties’ first child she took family leave and remained on leave for approximately 9 years. The wife deposes that she currently works 5 days a fortnight, Thursday and Friday each week and each alternate Wednesday ordinarily leaving home at approximately 8.00am and returning home between 6.00pm and 6.30pm. This is consistent with the husband’s evidence that the wife has been in employment since 2009 working two or three days a week.

8. The wife also deposes that the husband leaves home 7 days a week, at approximately 5.30am and returns home at approximately midday and that he then spends the rest of the day studying in his study at home save for when he works each Tuesday afternoon. She further deposed that he goes for a walk to a coffee lounge at approximately 5.00pm each day so as to read a book. The husband deposes by way of response that his hours are flexible, and that it is sufficient for the purposes of his work that he is present 4 -5 hours a day, that weekends are optional and that his studies are now complete. He does not however deny the wife’s evidence about his daily routine during the marriage. It is clear from his own evidence and perhaps not surprising that his involvement in the children’s care increased after the wife returned to part time employment however I am left with the general impression from the examples he gives of his involvement in the children’s care of a father providing assistance to the mother as the primary caregiver. Although I am not, in the absence of cross-examination, in a position to find conclusively that the wife was the children’s primary caregiver the uncontested evidence and the husband’s own evidence suggests that it is likely to be the case.  

9. It is also clear from the husband’s affidavit, although it has only been a few months since separation, that the wife has been the primary caregiver for the children since that separation albeit that he asserts that the wife has restricted his time with the children. The husband deposes that following separation the wife would only let him see the children for one hour a week. He says that since the beginning of November she has allowed the children to see him from after school each alternate Wednesday until 8.00pm, from after school until 8.00pm each Thursday and from 4.30pm each Friday until 5.00pm on Saturday. The husband says that the children have been in regular contact with him and seeking to spend time with him but that the wife has actively restricted their communication and the time he spends with them. The husband gives a number of examples of what he says is the wife restricting his time with the children and annexes emails passing between him and the children.

10. I have read the emails passing between the husband and the children. I am mindful of the fact that these children are 13 and almost 9 and the emails suggest that the husband makes arrangements directly with the children rather than with the wife. There are indeed many requests by the husband to spend time with the children and some emails to the wife complaining about her not allowing him to do so however there are equally many emails which suggest that these are busy and active children who forget to contact their father or on occasions make the time to see him. The emails do not on their face support the husband’s assertion that the wife is actively restricting his time with the children against their wishes.

11. It is also clear from the correspondence annexed to the husband’s affidavit that there have been negotiations with respect to the arrangements for the children. Although the husband says he was attempting to resolve the matter without the need for litigation that does not really explain why if he did not agree to the wife’s proposals with respect to the children he did not issue proceedings or at the very least file a response to the wife’s application seeking parenting orders until 27 November 2012.

12. Although the wife has not had the opportunity to respond to the husband’s application for parenting orders it is submitted on her behalf that she should continue in her role as the primary caregiver for the children and that she and the children should live in the former matrimonial home. She says that the home will provide the children with the stable base they require. Her case is that the husband is better placed both financially and practically to find alternative accommodation. She says that there are a number of apartments vacant in residential developments in Carlton owned by the husband and his family. Counsel for the mother also submitted that the husband could if necessary live with his mother.

13. It was submitted on behalf of the husband that there are no allegations of violence, there is no suggestion of abuse of the children, that the wife left voluntarily and that she has no urgent need for accommodation. The father does however allege that threats have been made against him by the wife and members of her family. It is not clear whether the children were present or are aware of these threats. The wife has of course not had the opportunity to respond to these allegations. It was also submitted that, the husband having remained in the former matrimonial home, I should have regard for what is an established status quo. The husband says that he has no control over the Carlton development and that in any event the apartments are one-bedroom “bedsitters” and would not accommodate the children during overnight stays. Finally the husband submitted that although it was not necessary for the wife to obtain alternative accommodation if she chose to do so the wife could use the money she received by way of part property settlement to do so.

14. Having made submissions in support of his application for sole use and occupation of the former matrimonial home the husband then sought to put as his primary position that the outcome of his application that the children spend equal time with him and the wife is integral to the determination of the competing applications for sole use and occupation of the former matrimonial home and that therefore the matter should be adjourned until Ms D’s report has been prepared and the Court is in a position to determine the question of how much time the children should spend with each of the parents. He says that would be likely to clarify the decision in relation to which of the parents should be permitted to occupy the former matrimonial home. His case being that if the children’s welfare is to determine where the children are to live, if the children spend equal time with each of the parents they will of necessity be spending half of their time in the former matrimonial home whichever party has the right to occupy the property.

15. The difficulty I have with this proposition is that it is also clear from the submissions made on behalf of the husband that he will seek sole use and occupation of the property whatever time is ultimately ordered that the children spend in his care. So that even if for example the children were to spend each alternate weekend with the husband it would still be his case that he should have sole use and occupation of the former matrimonial home. It is his evidence that the marriage had been unhappy for some years and that on two previous occasions the wife has packed her bags and some of the children’s belongings and left in her car. The parties had been attending marriage counselling. This is also not a case in which the husband says there is nothing to prevent the wife returning to the property with the children and both the parties continuing to live under the one roof with the children. The husband’s case is that the wife should be excluded from the property, to that extent acknowledging that it is not “reasonable or sensible or practical” to expect he and the wife and the children to continue living in the home together.

16. Even if the Court ultimately finds that the wife has been the children’s primary caregiver it does not necessarily follow that the husband’s application that the children spend each alternate week in his care will not succeed, however even if it were to succeed the children would still be spending half their time in the former matrimonial home whether it is the father or the mother who has the sole occupation of the property. If however his application for equal time is not successful and they live primarily with the mother they will, based upon his case that he should have the sole use and occupation of the former matrimonial home irrespective of the outcome of his application for parenting orders, spend considerably less time living in what has been their home for the last 8 years.  

17. The relevant criteria for determining an application for sole use and occupation has been described by the Full Court in S & S [2002] FamCA 59 as “surprisingly vague”. That being the case as highlighted by Cronin J in Mikele & Mikele [2008] FamCA 651 pursuant to s114 of the Family Law Act 1975 the Court is required to make an order that “...is proper and more importantly, to exercise discretion judicially”.

18. In S & S (Supra) the Full Court said at 78,264 as follows:

    The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

19. In Davis & Davis (1976) FLC 90-062 the Full Court at 75,309 said that the matters which must 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.”

20. The full Court in Davis & Davis (1983) FLC 91-319 quoted with approval a passage from P & P an unreported decision of Lindenmayer J delivered 12 July 1982 as follows:

    In my opinion, Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. 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 to expect them to remain in the home together.

Conclusion

1. The Court in this case is required, with some guidance from the decisions of the Full Court to make an order which is proper in all of the circumstances of the particular case.

2. I did initially consider that the Family Report which is to be prepared by Ms D might be of assistance to me in making my decision in relation to the question of which of these parties should have sole occupation of the home. However upon reflection I have determined that that is not the case. To the contrary the delay is likely to be disadvantageous to the children. There is, in my view, some force in Mr Holmes submission on behalf of the wife that the children require a familiar and stable environment. They have been living with the wife in her sister and brother-in-law’s home for over 3 months in what appears to me to be less then ideal accommodation for the children.

1. The husband’s case is that the wife having received the sum of $100,000 by way of part property settlement which is to be paid by 19 December 2012 can use that property settlement to obtain housing for herself and the children. He does not otherwise propose any financial assistance for the wife either by way of periodic spousal maintenance or rental payments.  

2. Even if I did adjourn the matter until late January, after receipt of the Family Report, the wife’s application is that she be permitted to return to the former matrimonial home with the children. Until the question of sole use is determined she will not, unless she abandons her application, be in a position to obtain rental accommodation until the matter is determined. Whereas if I make the decision now the party who is unsuccessful can start taking whatever steps are necessary to obtain alternative accommodation in which to house themselves and the children at those times when they are in their respective care. On this basis the children would be likely to have certainty and stability prior to the commencement of the 2013 school year.

3. It is common ground that the marriage had been unhappy for some years. The wife makes allegations about the husband’s conduct which she says are the reasons why she can no longer live in the former matrimonial home with the husband. These allegations are disputed by the husband and I cannot make any findings of fact with respect to these allegations however given that the husband says that he has been threatened by the wife and other members of her family and it is also the husband’s case that the parties cannot continue to live together and that he should have sole use of the home I am satisfied that as stated by Lindenmayer J it “...would not be reasonable to expect them to remain in the home together.”

4. The parties in this case separated on 8 September 2012. The mother issued the current application before me on 2 October 2012, less than a month after separation. I do not agree with Mr Thompson on behalf of the husband that there is a status quo. Even if I were satisfied that there were a status quo it does not follow that the wife would not be permitted to resume occupancy of the former matrimonial home.

5. Whilst it is true that the mother and children do have a roof over their heads and are not, as submitted by Mr Thompson, living in a refuge, I am satisfied that her current living arrangements are temporary and not suitable on any long term basis.

6. The wife has not specified the orders she seeks by way of property settlement and it is clear from her affidavit that she will not be able to do so until she at the very least has a clearer picture of the husband’s business interests. The husband on the other hand seeks final orders for property settlement which include an order requiring the mother to transfer her interest in the former matrimonial home to him. It is impossible at this early stage of the proceedings to predict the final outcome of the proceedings and for that matter which party would be likely to retain the property or for that matter if it will be possible for either of them to do so. However the orders I am being asked to make are interim orders and will not determine the ultimate outcome of the property proceedings.

7. In Page (Supra) the Full Court referred to the decision of Bassett v Bassett (1975) 1 All ER 513 where Cumming-Bruce J said at p520 that “...the court must be alive to the risk that a spouse may be using the instrument of an injunction as a tactical weapon in the matrimonial conflict…” I am satisfied that the wife genuinely wishes to resume occupation of the former matrimonial home and that her application is not being used as a tactic in these proceedings. I do not however have the same confidence in the husband’s case. It is clear that he wishes to retain the home on an interim and final basis irrespective of whether or not the children are living with him or not. There are also a number of aspects of his case which, in my view, would appear to have been tactically motivated. The most obvious was the submission made by Counsel on his behalf that he would pay the mother $200,000 by way of part property settlement. When I sought to clarify whether the husband proposed to make that payment by way of part property settlement irrespective of whether or not his application for sole use was successful his case was then put on the basis that he would only agree to an order for part property settlement if he continued to occupy the former matrimonial home. During the luncheon adjournment he reconsidered his position and ultimately the parties agreed upon a payment of $100,000 by way of part property settlement. It is hard to see it as anything but tactical particularly as it is clear that he is going to borrow the funds to pay the wife from his mother and there is no evidence of him having to make any repayments.

8. The other example which is also likely to be tactical was in relation to the payment of the mortgage and other outgoings with respect to the former matrimonial home. At paragraph 33 of his affidavit by way of response to the wife’s application for interim orders the husband deposed that he agreed to pay the mortgage, insurance and rates for the former matrimonial home. This was in the face of the mother’s application for sole use. This was not stated to be conditional upon or subject to him continuing to reside in the former matrimonial home. The husband’s case was not at any time put on the basis that he could not afford to obtain alternative accommodation or that if he had to do so he would not be able to meet the mortgage and the other outgoings.  It was only late in the day when I sought to confirm his consent to an order that he pay the mortgage and outgoings that the husband suggested that his proposal was predicated upon him having the sole use of the property.

9. The mother earns $500 per week. She discloses total personal expenditure of $727 in circumstances where she is living with her sister and her family rent free. In those circumstances she has no capacity to obtain and maintain alternative accommodation for herself and the children in addition to daily living expenses. As I have previously discussed it is the husband’s proposal that she can use the sum of $100,000 she has been paid by way of part property settlement.

10. According to the husband’s statement of financial circumstances he earns $720 per week and receives $2300 by way of a loan from the family business. There is no evidence to suggest that he will not continue to receive these funds. The husband says his weekly expenses are $2543. This includes mortgage payments, rates and insurances. On the face of his statement of financial circumstances he has a surplus of $477 per week. Counsel for the wife also directed me to the husband’s evidence in relation to the payments he made on behalf of the wife which he submitted he would no longer be required to make.

11. The Court has a greater degree of flexibility in interim proceedings such as these than in final hearings. In Redman & Redman (1987) FLC 91-805 where the Full Court said at 76,081 as follows:

    …the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83 … Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson (1978) FLC 90-505 … per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

12. It would appear that even on the basis of his own evidence and without the wife having had the opportunity to respond to that evidence, the husband is in a significantly more advantageous financial situation than the wife. Doing the best I can on the evidence I have I am satisfied that the husband has the capacity to pay the mortgage, rates and insurances for the former matrimonial home irrespective of whether or not he occupies that property. Even if the husband cannot live in one of the family owned properties or with his mother it appears on the basis of his own evidence that he is better placed to obtain and maintain alternative rental accommodation than the wife.   

13. I am satisfied that it is proper in this case to make an order that the wife have the sole use and occupation of the former matrimonial home and that to order otherwise would be to cause significant hardship to the wife and the children. Although it is possible that the Court might order that the children spend equal time with the husband and the wife at worst this will mean that the children will spend half their time with the wife in the former matrimonial home, their home for most of their lives. If however the husband’s application for equal time is not successful then the children will spend more of their time in the mother’s care in their home. Significantly they are likely to be settled in the home before the start of the 2013 school year which will allow the children some certainty and stability. Although the children’s welfare is not the only factor it is a significant factor in this case.

14. The wife seeks an order that the husband vacate the former matrimonial home within 7 days, I do not propose to accede to that application. The husband seeks 4 weeks to vacate the property if he is required to do so. Even though the husband may be able to move to family owned properties or his mother’s he will need some time to do so or alternatively he may wish to rent a property. I am also conscious that it is almost Christmas. The orders that I am being asked to make by consent provide for the children to spend week and week about with each of the husband and the wife. The husband is proposing to spend that time at the coast. I have not been told what is proposed by the wife however I am satisfied that the most important issue from the children’s perspective is that they are settled by the time school term starts and that it is not imperative that the husband vacate the former matrimonial home immediately.  I propose having regard to these issues to require the husband to vacate the property by 14 January 2013.

15. As I have dealt with the application for sole use and occupation of the former matrimonial home the outstanding issue is the husband’s application for parenting orders. In those circumstances I propose to make the orders sought by consent by the parties and otherwise adjourn the matter for hearing of the parenting application to the Senior Registrar’s Duty List at 10.00am on 30 January 2013.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 11 December 2012.

Associate:

Date:  11 December 2012