AHMAD & AHMAD

[2016] FamCA 686

FAMILY COURT OF AUSTRALIA

AHMAD & AHMAD [2016] FamCA 686

FAMILY LAW – injunctive relief – occupation of matrimonial home – relevant considerations – wife granted sole use and occupation.

FAMILY LAW – injunctive relief sought by way of asset preservation order – where no evidence to warrant such an order – where discussion of general principles – where relief refused.

Family Law Act 1975 (Cth) s 114

Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Martin & Martin and Ors [2013] FamCA 222
Marvel & Marvel [2010] FamCAFC 101
S & S [2002] FamCA 59

APPLICANT: Ms Ahmad

RESPONDENT: Mr Ahmad

FILE NUMBER: PAC 3112 of 2016

DATE DELIVERED: 22 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: E H Tebbutt & Sons

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

Orders

That pending further order:

1. That within 7 days from this date the respondent husband Mr Ahmad vacate the home at B Street, Suburb C.

2. That the husband be restrained from removing any items of furniture and contents from the home except with the consent in writing of the wife with such writing to include SMS or email communication save for his clothing and personal effects.

3. That at the expiration of 7 days from this date the wife Ms Ahmad have to the exclusion of the husband sole use and occupation of the home at B Street, Suburb C.

4. That as and from the expiration of 7 days from this date the husband Mr Ahmad be restrained by injunction from approaching or entering upon the property at B Street, Suburb C except with the consent of the wife in writing with such writing to include SMS or email communication or pursuant to court order.

5. Liberty to apply on short notice as to implementation or enforcement of these orders.

6. Those costs of and incidental to this application be reserved.

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 Ahmad & Ahmad 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 PARRAMATTA

FILE NUMBER: PAC 3112  of 2016

Ms Ahmad

Applicant

And

Mr Ahmad

Respondent

REASONS FOR JUDGMENT

1. The applicant wife filed an application commencing property settlement proceedings on 6 July 2016. In that application she somewhat inelegantly sought property orders whereby she was to receive “75% of the net matrimonial assets” and the husband was to receive “25% of the net matrimonial assets”.

2. In the application the wife seeks interlocutory orders that would require the husband to vacate the property at B Street, Suburb C and thereafter restrain the husband from continuing to occupy the property at B Street, Suburb C and providing the wife exclusive occupation thereof.

3. Otherwise the wife seeks an order restraining the husband from “gifting any funds, encumbering, selling or dealing with any property or increasing any borrowings or liabilities without providing the wife with 28 days’ notice”.

4. The respondent husband having filed his response to the wife’s application seeks an interim order in that response that the wife’s interim application be dismissed and that she pay his costs of and incidental to the interim proceedings.

Context

1. The wife relied upon her affidavit filed on 6 July 2016 and the affidavit of Dr D filed on 26 July 2016 together with her financial statement filed on 6 July 2016.

2. The husband relied upon his affidavit filed on 28 July 2016 and his financial statement filed on the same day.

3. The wife is aged 59 and the husband aged 61.

4. The parties commenced cohabitation in late 1995 and were married in 1996.

5. There are two children of the marriage Mr E, a university student, now aged 19 and F, presently in year 10 at high school, now aged 16. The child Mr E has a part-time job and attends at the G University. The child F also has part-time employment locally.

6. At present all members of the family and the family dog reside in the matrimonial home at B Street, Suburb C. The home is jointly owned by the husband and wife.

The wife’s case

1. There is a significant dispute between the husband and wife as to their respective assets at cohabitation. A resolution of that issue is not necessary in the context of the present application.

2. The wife throughout the relationship says she was the primary homemaker and caregiver for the children although she assisted the husband in their various enterprises during the course of the relationship.

3. In October 2015 the husband sold his restaurant business for $200,000 with net sale proceeds paid into an account controlled by the husband. The husband transferred about $141,000 to accounts conducted by H Pty Ltd (see below). The remaining funds, says the wife, are unaccounted for.

H Pty Ltd

1. Both the husband and wife are the directors and shareholders of H Pty Ltd, a company that over the years has been involved in the development and purchase and sale of properties. The company has a property portfolio having a value in excess of $12 million with mortgages secured over those properties of about $4.5 million. The company property portfolio comprises five townhouses in I Street, Suburb J and a commercial property at K Street, Suburb J.

2. The company receives gross monthly rental of about $44,000. Rentals are paid into the company account with the National Australia Bank and mortgage payments are approximately $17,500 per month.

3. The wife says that the commercial property at Suburb J has been leased to two businesses downstairs with vacant office space and a vacant studio/unit upstairs that has been recently renovated. To the wife’s observation the upstairs accommodation would provide quite habitable accommodation for one person. The accommodation has bathroom and kitchen facilities, a washing machine, dryer and a TV with Foxtel. The husband has belongings and some of his clothes at the premises and has cooked meals there. The accommodation she says has permissible use zoning for residential purposes as “shop top housing”.

The matrimonial home

1. The parties purchased the matrimonial home property at B Street, Suburb C on 16 October 2000 for the sum of $741,000. Thereafter the property was demolished and a new substantial home was constructed with the parties and the children moving into the home in about 2002. The property has a current value of about $3.4 million and the parties have combined superannuation totalling about $272,000.

2. The wife sold her Suburb L property on 27 July 2001 for $3 million. She provides no evidence as to how those funds were applied. The husband asserts that sale proceeds were used to discharge the then mortgage over the property of $752,000 with the net balance of about $2.1 million being applied to the activities of H Pty Ltd referred to below.

The present circumstances

1. The wife asserts that in about 2015 she and the husband commenced to reside in separate bedrooms. It appears that somewhat belatedly she makes an allegation that in early February 2015 the husband “sexually assaulted” her in her bedroom with her suffering no physical injury but being hurt emotionally. The following day the husband sent a text message to the wife apologising for “my behaviour last night”. The wife says that since this time she and the husband have lived as a separated couple under the same roof.

2. More recently and on about 10 May 2016 the wife’s solicitors wrote to the husband requesting that he vacate the matrimonial home within 14 days. In that correspondence the wife’s solicitors make no assertion as to any inappropriate or aberrant behaviour by the husband.

3. It appears that the wife asserts that the husband’s behaviour since that request has become unpredictable. She says he is a heavy drinker, drinking by himself in his room. The husband, she says, refuses to talk to her or the children.

4. In the absence of the husband from the home the children and the wife live a normal life but when the husband is home they all repair to their own separate rooms.

5. The husband, says the wife, has a habit of walking around the house in his underwear and on occasions when sitting his testicles are exposed. This has occurred in the presence of the family members and others who have visited the home.

6. The wife asserts that the husband’s behaviour and conduct causes her anxiety and anguish. She is fearful that the husband will try and cut her off financially. She has had cause to consult her general practitioner and is having trouble sleeping.

7. The wife has observed the husband to be under the influence of alcohol on occasions.

8. On 7 June 2016 the husband arrange for a locksmith to place a lock on his bedroom door. That evening F said to her mother “if he won’t move, then can we move, otherwise I can move out with a friend for a short time”.

9. On 23 June 2016 in the evening officers of the New South Wales Police attended at the home following a complaint by the husband that he was unable to get into the home. Inadvertently a key had been left in the inside deadlock on an access door.

10. The wife’s general practitioner provided a short report as to the wife’s health observing that she attended for recent consultations on 19 and 20 June 2016. To his observation she was emotional and had lost significant weight over the preceding three months. He diagnosed insomnia and situation anxiety fears, prescribing the wife Temazepam for sleep. He recommended that she be referred for counselling to assist with the domestic circumstances. It is his view that the wife’s current living arrangements are impacting on her health which is demonstrated by her weight loss and emotional status.

11. The wife is anxious that the husband may seek to remain in the matrimonial home until such time as property issues between her and the husband are resolved.

12. To the wife’s observation the child F appears to be suffering from stress, is emotional and cries easily which is not in her usual character. The child goes to her room whenever the husband is home. There is no communication between F and her father. Should the wife be required to vacate the home with the children it would be necessary for her to establish new residential accommodation and to purchase appliances and furnishings for herself and the two children. She says she does not have such funds.

13. The eldest child Mr E also has a fractured relationship with the husband as discussed below.

14. The income stream from the company activities, contends the wife, is sufficient for the husband to be able to rent his own accommodation should he choose not to reside at the K Street property. Otherwise the parties have been drawing surplus funds from the company account for day to day living and expenses. The wife’s taxable income before the 2015 year as a consequence of these drawings was $36,150.

15. It is the wife’s expectation that such arrangement will continue.

The husband’s contention

1. The husband acknowledges that he and the wife have been separated under the one roof since early 2015.

2. The husband makes a number of complaints about the wife’s conduct and behaviour. He elected to involve the NSW police in their domestic affairs. On 30 June 2016 he procured a provisional apprehended domestic violence order authorised by an officer of police at Suburb M police station.

3. The provisional order made on the husband’s complaint contains the usual mandatory orders including that the wife must not assault, molest, harass, threaten or otherwise interfere with the husband and not engage in any conduct that intimidates the husband and not stalk the husband and not destroy or deliberately damage or interfere with the property of the husband.

4. The provisional application was listed before the Suburb N Local Court on 5 July 2016 and has been subsequently adjourned. The husband’s complaint is that the wife had attended at their company office on 22 June 2016, he having provided to her a key to the premises, to find that the premises were alarmed. She searched the property and disabled the alarm. The husband further complains that on 8 May 2016 the wife entered his bedroom at the matrimonial home seeking keys to the company office, storage container and storage room. The wife later attended at the company premises and obtained access to the premises and storage containers by force and by removing padlocks. Otherwise the husband complains that on 6 June 2016 he returned home to find that the Foxtel cable had been severed. He then complains that on 20 June 2016 the wife had gained access to his room via the housekeeper and it appears had gained some information about a US dollar debit account in the husband’s name previously not known to her. The husband further complained about the incident on 23 June 2016 when he could not gain entry to the home as referred to above.

5. In addition to the statutory orders referred to above it appears that the husband’s apprehended violence application seeks an order that the wife is not to reside at premises at which the husband may from time to time reside or work. In effect he is seeking sole use and occupation of the home through his police application.

6. The husband alleges that the child Mr E was involved in the wife’s conduct saying that police have obtained CCTV footage relating to the child. It appears that the husband is seeking to have the wife and the child charged with damage to the K Street property. If that be the case then evidence in those proceedings would no doubt be given by the wife and the child as to the circumstances of their alleged activities and they would be cross-examined by the police on behalf of the complainant husband. Such circumstances would be clearly indicative of it being inappropriate for the wife and the child Mr E to remain in common residence with the husband.

7. The husband disputes in some detail the availability of the accommodation at K Street, Suburb J for his prospective occupation. He otherwise contends that his health is such that he needs to remain in the home. He suffers from some joint pain, arthritic changes and “non-cardiac chest pain” (sic) that his doctor says makes it difficult for him to work, although it appears that his “work” is mainly related to the company’s passive income stream from rentals.

8. If his health is a consideration for him the circumstances in the home cannot be assisting.

9. The husband asserts that he is retired and does not have the capacity to pay for rental accommodation. He remains a property investor through the parties’ company that derives significant income. Yet he has unexplained funds from the sale of his previous business and available surplus funds of about $200,000 per annum from the activities of the company from which to draw funds for living expenses for him and the wife. Otherwise capital assets are available for realisation.

Sole use and occupation

1. In S & S [2002] FamCA 59 (unreported) the relevant consideration as to determining an application for sole use and occupation were described as “surprisingly vague”.

2. Under s 114 of the Family Law Act 1975 (Cth) the Court is required to make an order that “it considers proper”.

3. In S & S (supra) the Full Court said at [36], quoting the Full Court in Sieling v Sieling (1979) FLC 90-627:

   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.

4. In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations 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.

5. The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) 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.

6. Thus relief should not depend merely on the balance of convenience or hardship. The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other. It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.

7. The Court is mindful of what was said by the Full Court in Marvel & Marvel [2010] FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.

Discussion

1. The disharmony in the home has heightened over recent months.

2. The husband with his personal behaviour, the failure of any relationship between he and the children, the wife (and Mr E’s) conduct to obtain it appears disclosure from the husband, the husband’s involvement of the police, the husband it appears seeking that criminal charges be laid against the wife and possibly Mr E, the allegations of some unexplained and overseas funds of the husband and clear conflict is strongly indicative of a cohabitation in common premises that must end.

3. The wife if she chooses to move will it appears be accompanied by both children and require significant capital resources to accommodate all. She does not have those resources.

4. The husband has the capacity to rehouse himself and the parties’ income circumstances it appears can maintain that separate accommodation together with other funds by inference that the husband has.

5. Having regard to all of the matters discussed above there will be an order for the wife to have sole use and occupation of the home pending further order.

Injunction as to asset preservation

1. The wife seeks an order restraining the husband from “gifting any funds, encumbering, selling or dealing with any property or increasing any borrowings or liabilities without providing the wife with 28 days’ notice”. In effect an asset preservation order.

2. A useful overview of injunctive principles was provided by Cronin J in  Martin & Martin and Ors [2013] FamCA 222 where his Honour relevantly said at [15] and following:

   15. Section 114 of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper. Discretionary though the remedy may be, it is not unfettered and must be exercised according to law (see Stanford v Stanford [2012] HCA 52).

   16.The Court must look to the facts of the particular case as well as the governing principles set out in Part VIII of the Act for the guidance of the exercise of that discretion. The facts in this case must fit within those provisions.

   …

   18.In Waugh and Waugh (2000) FLC 93-052 the Full Court cautioned against applying broad-brush principles regarding Mareva orders indiscriminately to injunctions over assets in family law disputes (see also Mullen v DeBry[2006] FamCA 1380).

   19.In financial cases, injunctions between parties to the relationship usually arise where one party has control of a large majority of the assets which are the subject of the dispute (see Blue Seas Investments Pty Ltd v Mitchell and McGillvray(1999) FLC 92-856).

   …

   22.The power to order an injunction continue until trial is purposive – it must be seen to serve the interests of the court by protecting against abuse of process. If there is evidence that a party is a risk of removing assets from the reach of the court, this makes the ultimate orders effectively unenforceable. The purpose is therefore to protect the efficacy of the orders that may lie against the prospective judgment debtor (Cardile v LED Builders Pty Ltd(1999) 198 CLR 380, 392; Mr Eson v Sterling Industries Ltd(1987) 162 CLR 612 at 623, 638).

   23.Usually, the right to the injunction is asserted by one party but the evidence remains untested. The court seeks to protect the underlying right claimed through the interlocutory injunction (Robb Evans of Robb Evans & Associates v European Bank Ltd [2009] NSWCA 67, [28]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd(2001) 208 CLR 199.)

1. Yet the wife does not assert that the husband proposes or threatens any action that may significantly impugn the asset pool. Indeed the home is jointly owned as are the company and thus its assets. The wife has her own remedy in relation to bank accounts and mortgage accounts that she can implement without the need for court order.

2. There are discrete issues as to alleged non-disclosure at this stage. The significant putative asset pool is not threatened by such an alleged circumstance.

3. The order as sought by the wife will not be made.

Costs

1. It is appropriate where the wife has only been partially successful and has failed in her injunctive relief as to property preservation that costs be reserved.

2. An order will be made accordingly.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 August 2016.

Associate: 

Date:  22 August 2016