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

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:

That within 7 days from this date the respondent husband Mr Ahmad vacate the home at B Street, Suburb C.
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.
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.
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.
Liberty to apply on short notice as to implementation or enforcement of these orders.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AHMAD & AHMAD

Details

AGLC: AHMAD & AHMAD [2016] FamCA 686
Case: [2016] FamCA 686
Decision Date: 22 August 2016

CaseChat Overview and Summary

In the matter of *Ahmad & Ahmad*, Foster J of the Family Court of Australia considered applications for injunctive relief concerning the matrimonial home and asset preservation. The wife, Ms Ahmad, sought sole use and occupation of the matrimonial home, while both parties appear to have sought or been subject to discussions regarding asset preservation orders.

The primary legal issues before the court were whether to grant the wife sole use and occupation of the matrimonial home and whether to grant asset preservation orders. The court was required to determine the relevant considerations for granting injunctive relief in the context of family law proceedings, particularly concerning the occupation of the matrimonial home.

Foster J reasoned that the wife had established grounds for sole use and occupation of the matrimonial home, granting her exclusive possession pending further order. The court also addressed the principles applicable to asset preservation orders, noting that such relief would only be granted where there was evidence to warrant it. In this instance, the court found no evidence to support an asset preservation order, and therefore refused that aspect of the application.

The court ordered that the respondent husband, Mr Ahmad, vacate the matrimonial home within seven days and be restrained from removing furniture and contents, save for his clothing and personal effects, without the wife's written consent. Following this period, the wife was granted sole use and occupation of the home, and the husband was restrained from approaching or entering the property except with the wife's written consent or a court order. Costs were reserved.

Orders

Orders of the court

That pending further order:

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

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.

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.

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.

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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