Sieling v Sieling

(a) the husband will ensure that all utilities, rates and mortgage repayments are paid to the date of his vacation;

(b) the husband will not remove any items of furniture or chattels from the property, save for his personal belongings (limited to clothing, toiletries, personal papers, books, CDs and the like), without the written agreement of the wife first obtained or further order of the Court;

(c) the wife shall have the sole use and occupation of the property, and the husband is restrained by injunction from entering the said property, or approaching within 200 metres of the said property, without the written consent of the wife first obtained, subject to Order 1 hereof;

(d) the husband is restrained by injunction from approaching the wife without the written consent of the wife first obtained; and

(e) the wife shall pay all mortgage payments, shire rates, water rates and other outgoings of the property whilst she continues to reside there.

1. Within 90 days hereof, the husband will remove all livestock belonging to him from the property save any livestock that the wife may agree in writing shall remain on the property for a period as determined by the wife.

1. Within 14 days, the Husband provide, unless already provided, to the Wife's solicitors, by way of discovery:

(a) any and all correspondence, notes, information and documentation (provided or received) in relation to the Federal Court proceedings number VID 1101/2024; including but not limited to any advice from D Lawyers, E Lawyers, F Financial Services or any other third party;

(b) any and all correspondence, notes, information and documentation (provided or received) in relation to the liquidation of G Pty Ltd (A.C.N. ...);

(c) any and all correspondence, notes, information and documentation relating to any disposal, transfer or liquidation of any assets (other than funds in bank accounts) of G Pty Ltd since 1 January 2020;

(d) any and all correspondence, notes, information and documentation relating to H Pty Ltd (A.C.N. ...), including but not limited to:

(i) the name of the accountant engaged on behalf of H Pty Ltd by the Husband (or his nominee);

(ii) purchase documentation;

(iii) taxation documentation;

(iv) all bank statements, credit card statements; applications for finance, and any other documentation relating to banking or finance;

(v) itemised list of assets (including but not limited to any vehiclesof any description)

(vi) depreciation schedule;

(vii) taxation returns;

(viii) BAS statements;

(ix) profit and loss statements; and

(x) any other document reasonably requested by the Wife.

1. Within 7 days, the husband pay to the wife the lump sum of $50,000 as a part property settlement and to be otherwise considered at the discretion of the trial judge.
2. Until further Order of the Court, the husband be restrained by injunction from selling, mortgaging or in any way charging or disposing of any assets in his name or in any partnership, company or trust except in the ordinary course of business without the prior approval of the Court or the prior approval of the wife being first obtained in writing.
3. Until further Order of the Court, the husband be restrained by injunction from taking any action whether personally or as a shareholder of any entity in which he is director and/or shareholder or as a trustee or in any other capacity whatsoever to alienate, charge or otherwise deal with any of the assets of the said entities, trust or of the assets controlled by the said entities or trusts except in the ordinary course of business without the prior approval of the Court or the prior approval of the wife being first obtained in writing.
4. Order 3 of the Orders of 31 January 2025 be varied as follows:

That within 7 days the husband and wife provide all information requested by V Valuers as a Single Expert to value the parties' interest in the entities (the commercial valuation):

(a) J Pty Ltd ABN ...;

(b) G Pty Ltd ABN ... (under external Administration);

(c) K Trust (if any);

(d) H Pty Ltd ABN ...;

(e) L Pty Ltd ABN ...; and

(f) M1 Pty Ltd ABN ...; and g. M2 Pty Ltd ABN ....

1. Within 14 days the parties shall do all acts and things and sign all documents necessary to instruct an agreed valuer or valuer as proposed by the wife to value the sporting facility in Town N owned by J Pty Ltd ("the [sporting facility]") as follows:

(a) within 7 days, the wife's solicitors shall draft a joint letter of instructions;

(b) within a further 7 days the husband's solicitors will sign the joint letter of instruction and send that together with any enclosures to the agreed valuer or valuer as proposed by the wife;

(c) the cost of the valuation be borne equally between the husband and wife; and

(d) within 7 days of receipt of the valuation, the wife's solicitor will:

(i) arrange for the valuation to be placed on affidavit and filed with the Court; and

(ii) send a copy of the valuation to V Valuers.

1. Should the husband not sign the joint letter of instruction as set out in Order 9(b), then the wife be permitted, to the exclusion of the Husband, to sign any documents and do all things required to engage the agreed valuer or valuer as proposed by the wife for the purposes of valuing the sporting facility.

1. Within 14 days the husband and wife will jointly instruct Mr O of P Financial Services or Ms Q of R Financial Services ("the forensic accountant") to conduct a full forensic examination of the husband's financial affairs since January 2020 to date, both personally and within business entities owned by the husband either solely or jointly with another, with such examination to include the husband's actions, dealings, financial diminishment/wastage, sale or transfer of assets, and any other related issue arising out of the husband's dealings with all assets and entities in the parties' names either jointly or solely and the costs of such report be borne by the wife in the first instance, and thereafter such payment as to the liability of both parties shall be as determined by the Court.
2. The husband shall provide all documents requested by the forensic accountant for the purposes of Order 11 herein within 7 days of the forensic accountant's written request.

1. In the event that the husband fails to comply with any request of the forensic accountant and/or the other parties, the wife have liberty to issue more than 15 subpoenas.
2. Within 7 days the wife shall provide a list of financial disclosure still outstanding from the husband and the husband shall have 7 days thereof to provide that financial disclosure in full.
3. All Orders in relation to the parties attending mediation be hereby dismissed.

1. There be a future interim hearing with respect to Orders 19 and 20 as sought by the wife in her consolidated Minute of Orders for hearing on 2 June 2025 as contained in Annexure 'A' to her Outline of Case Document (Interim Hearing) filed 1 June 2025 on a date to be fixed.
2. All extant applications for final orders be adjourned for hearing before Justice Hartnett on 8 September 2025 at 10.00am (as a 5 day matter).
3. By 4.00pm 35 days prior to trial the Applicant file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought;

(b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

(c) a financial statement that complies with Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. By 4.00pm 28 days prior to trial the First Respondent and the Second Respondent file and serve upon all other parties:

(a) an amended response setting out with precision the orders to be sought;

(b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

(c) a financial statement that complies with Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. By 4.00pm 21 days prior to trial the Applicant file and serve any affidavit in reply to the affidavits of the Respondent.
2. No party file any further material other than as provided by these orders without leave of the Court.
3. If either party takes objection to any evidence of the other party:

(a) any objection be taken no later than 14 days prior to the trial by service of written notice on the solicitor for the other party;

(b) the party so served shall notify the objecting party in writing no later than 7 days prior to the trial of which objections so taken are the subject of agreement and which require determination.

1. There is liberty to the parties to issue any number of subpoenas that they consider necessary to include those that may be issued pursuant to Order 13 hereof.
2. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
3. Prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties' outline of case.
4. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
5. The Applicant pay all setting down and trial fees by 4.00pm 2 days prior to trial or obtain the requisite waiver thereof.
6. The practitioners and/or the parties in the event that they are not legally represented file and serve electronically and send a copy to ...@... by 4.00pm 4 days prior to trial the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the applications and affidavits filed pursuant to these orders to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(c) a list of the parties' respective legal and equitable interests in property and liabilities;

(d) a list of objections to evidence upon which rulings are required, if any; and

(e) a bullet-point summary of argument in relation to the legal and factual issues in dispute.

1. Each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.
2. The practitioners, and/or the parties if they are not legally represented, be at liberty to approach Justice Hartnett's Associate via email for an urgent listing of the matter if required.

1. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
2. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

1. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

1. If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 the pseudonym Miller & Miller has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The first respondent wife ("the wife") filed an Application in a Proceeding seeking, relevantly, that the applicant husband ("the husband") vacate the property situate at and known as B Street, Town C in the state of Victoria ("the [Town C] property") of which the wife is the sole proprietor; that the husband make a lump sum payment to the wife; that the husband and wife jointly engage an expert to conduct a forensic examination of the husband's financial affairs since January 2020; and that the husband otherwise provide financial documents by way of discovery. The husband opposed the wife's application for the husband to vacate the property, and her application to appoint a forensic expert at the parties' joint cost, or at all, and otherwise consented to discovery matters and a lump sum payment to the wife in the amount of $50,000 which was to be characterised as a partial property settlement. The second respondent did not file any material, nor did he participate in the hearing.
2. The question of costs, and the litigation funding payment as sought by the wife from the husband, are to be considered in a further interim hearing on a date to be fixed if sought to be pursued by the wife at a further interim hearing noting the matter is fixed for trial on the 8 September 2025.

(1) Application in a Proceeding filed 14 May 2025;

(2) her affidavit filed 14 May 2025;

(3) the affidavit of Ms T filed 14 May 2025;

(4) her Financial Statement filed 28 May 2025; and

(5) her Outline of Case Document filed 1 June 2025.

(1) Response to an Application in a Proceeding filed 30 May 2025;

(2) his Affidavit filed 30 May 2025; and

(3) his Financial Statement filed 30 May 2025.

1. In 1961, the wife was born. She was 63 years of age at the time of the hearing. The wife works three jobs, including for the S Business where she temporarily resides. The wife also works at U Company two days per week on a casual basis, and she also has a delivery job one day per week.
2. In 1961, the husband was born. He was 63 years of age at the time of the hearing. The husband works in local government. The husband was diagnosed with a medical condition in 2016.
3. In 1990, the husband and wife married.
4. In 1991, the second respondent was born. He was 34 years of age at the time of the hearing. He failed to participate in the Application in a Proceeding.
5. In late 2022, the wife received an inheritance of $183,000 from her late mother's estate. The wife claims such funds have been expended by her on legal costs in this proceeding.
6. In December 2022, the husband underwent surgery.
7. In July 2023, the husband and wife separated after a cohabitation period of approximately 33 years. After separation, the husband remained living in the Town C property, although I observe his occupation of same is limited, on his own evidence, to use of the garage and office areas of the home due to his medical condition, whilst the wife left the property and commenced to occupy a small dwelling at the S Business location. The husband is the chairman of the management committee of the S Business ("the committee").
8. Shortly after separation, the husband received a settlement in the amount of $600,000 from an institution for historical child sexual abuse. He was left with a net amount of $460,000.
9. In late 2023, on the wife's allegations, as denied by the husband, the husband telephoned the S Business and attempted to have the committee remove the wife from the dwelling in which she resided. He sought also that the wife be removed as an employee of the S Business which was providing her limited income for the work performed by her, including payment of the wife's rent. The S Business committee permitted the wife to continue her residence of the dwelling and employment despite the husband's demands (on the wife's evidence), or because the husband did not seek the removal of the wife from the dwelling or her employment (on his evidence).
10. In June 2024, the committee wrote to the wife and alleged that she had made false allegations of family violence against the husband. The wife was then provided with a show cause notice. Ultimately, no further action was taken by the committee.
11. On 27 June 2024, interim orders were made including that the husband continue to make the mortgage payments on the Town C property (they were then in the sum of approximately $4290) which he had continued to occupy. It is alleged by the wife that the husband has since that time made mortgage payments in respect of the Town C property with funds belonging to G Pty Ltd ("[G Pty Ltd]") without authority, rather than his personal funds.
12. The wife further alleged that since his sole occupation of the Town C property, the husband has disposed of several of the parties' assets without her consent, including a significant amount of scraps metal, a Motor Vehicle 1, other vehicles, and paintings and prints. Further, that despite her requests, the wife has not been able to receive all her personal belongings and those that she has received, were able to be retrieved by her from a container the husband placed outside the home whilst denying her access to the home.
13. The husband denies the matters as asserted above by the wife.
14. Contained within the proceeding to the date of hearing, were various instances where the husband had not complied with earlier orders of the Court, for example, as required by orders made 29 April 2025 where, despite each of the parties signing joint letters of instruction to V Valuers and to W Valuers, the husband did not provide financial statements as requested by V Valuers, and both the husband and the second respondent failed to sign the letter of engagement from W Valuers. Thus, the valuations did not proceed as anticipated, and a mediation date could not proceed. Further, the husband failed in his obligations of disclosure and discovery or at least to the extent of providing same in a timely way being further a matter for trial. These actions as submitted by the wife delayed the proceeding and made necessary the wife's further interim application in a proceeding of May 2025.

1. Section 114 of the Act is, relevantly, as follows:

(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(a) ....

(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c) ....

(d) ....

(e) an injunction in relation to the property of a party to the marriage; or

(f) an injunction relating to the use or occupancy of the matrimonial home.

...

1. As canvassed in Naylen & Naylen [2021] FamCA 392, the principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling [1979] FamCA 23; (1979) FLC 90-627, and may be summarised as is follows:

(a) the Court may make such an order as it thinks proper;

(b) there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be "proper". A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it;

(c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances;

(d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order;

(e) the Court does not need to make a finding that the situation in the former matrimonial home is "intolerable" or "impossible", it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together;

(f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order;

(g) the test for making an order for exclusive occupation is an objective one;

(h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen;

(i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together;

(j) while the decision ought not be made merely on the balance of convenience: in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home;

(k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened.

These principles should properly be treated as guidelines to assist in the exercise of the discretion given under s 114(1); they should not be seen as laying down any fixed list of criteria.[1] That is, a judge must exercise his or her own discretion in the matter.

1. The wife submitted that the husband has control of the parties' assets, save that the Town C property is registered in her sole name but occupied by the husband who refuses to leave same. The wife seeks retention of her sole ownership of the Town C property as a final property order. The wife claimed that the husband has also asserted control over the wife's current living arrangements in the S Business location. The wife deposed to being fearful that she could be issued with a Notice to Vacate at any time. She seeks security in her accommodation.
2. The wife submitted that the husband has the financial ability to afford rental accommodation in either Town C and/or Town X, and it was her evidence that, according to subpoenaed bank statements, the husband had in his possession and ownership the following sums:

(1) $647,543.28 in his personal NAB Account number ending ...29 (as of 28 February 2025);

(2) PEXA auto credit of $245,682.48 (as of 25 March 2024) in respect of which the wife claimed the husband received same having sold real property in early 2024 without her knowledge;

(3) $433,000 in NAB account number ending ...29 (as of mid-2024, being the husband's compensation in full or part payment from an institution);

(4) $17,918.13 in NAB account number ending ...62 (as of 4 March 2025); and

(5) $106,862.63 in a term deposit with Y Bank (as of 6 January 2025).

1. The husband deposed in his Amended Statement of Financial Circumstances that as of 30 May 2025, he had $4,741 in his NAB account ...62; a term deposit account with Y Bank of approximately $107,000; and a sum of $190,334 in NAB account ...29. The husband claimed he had expended considerable additional sums on addressing the possible liquidation of G Pty Ltd. He gave evidence as to one of his other expenses being, in September 2024, the sum of $65,320 on a car for his adult daughter. He pays his son's (the second respondent) car expenses of $350 a week.
2. The husband has employment with local government which provides him with income of approximately $1,694 net each week.
3. The wife deposed to having one personal bank account with Westpac with available funds of approximately $1,300.
4. The wife works three jobs and receives income of approximately $1,256.73 She continues to live at the S Business location in unreasonable circumstances in the context of the parties' respective financial positions and the husband's control for the most part of the parties assets.
5. The husband deposed that he has lived in the Town C property since separation, a matter about which there is common ground, although the reasons for that differ, and certainly there is consensus between the parties that it is not sensible, reasonable or practicable for, and nor does the balance of convenience require, the parties to reside together in the Town C property. The Court concurs with that view. Indeed, on the facts, the Court considers no order that is proper could have the parties residing under the one roof.
6. The husband deposed that he cannot afford to rehome himself or make a payment to discharge the mortgage (approximately $70,000) as secured by the Town C property, the latter an order not subsequently pressed by the wife on the interim hearing, as the husband claimed his funds were being applied to G Pty Ltd to avoid the company being wound up. The husband also deposed to his health suffering if, heading into winter, he is forced to rehome himself. There was before the Court no medical evidence to support that claim and he would appear to occupy almost none of the actual home in any event. The orders which the Court made on 20 June 2025 shall have the husband leaving the Town C property heading into Spring.
7. At the hearing, counsel for the husband submitted that the husband has in his possession and ownership a number of animals, of which nine are pregnant; and other livestock. It was the husband's evidence that it would be onerous for him to remove the livestock, including that it would be difficult to make suitable arrangements to rehome the livestock, or agist them. There was no other evidence to support that claim, nor any evidence of any attempts in that regard. The husband has ample funds available to him to comfortably rehouse himself and relocate his livestock in the regional area in which he resides. The husband, in that same regional area will also probably have an ability to find alternate arrangements to place his animals elsewhere, including the sale or agistment of them, or relocation to a rental property as occupied by him.
8. I shall order the husband to vacate the Town C property within 60 days but allow for the husband to retain the animals on the property for an additional 30 days (90 days total) to assist him with making suitable arrangements to rehome the animals and any of their progeny.
9. The husband's ongoing non-disclosure in the proceeding as submitted by the wife has caused the cancellation of five mediations as between the parties and no further mediation shall be attempted. It has been a difficult and costly procedure for the wife to have the husband place before the Court and make available to her, in a timely way or at all, the necessary material to progress the matter. The husband has also had control over many of the parties' assets and/or interests. These matters and the conduct of the proceeding to date makes necessary, as submitted by the wife, the appointment of a single expert for a forensic examination of the husband's financial circumstances. I shall order such appointment with the wife to pay the costs of same in the first instance. At trial it can be more properly determined as to the necessity for that appointment, with the payment by which party or both, and of what sum, to be further considered.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

[1] Naylen & Naylen [2021] FamCA392 at [30].