Alhambra and Alhambra

[2007] FamCA 791

FAMILY COURT OF AUSTRALIA

ALHAMBRA & ALHAMBRA [2007] FamCA 791

FAMILY LAW - PROPERTY – Exclusive occupation - Discovery

Family Law Act 1975 (Cth)

APPLICANT: MRS ALHAMBRA

RESPONDENT: MR ALHAMBRA

FILE NUMBER: PAC 1012 of 2007

DATE DELIVERED: 26 June 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 26 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: Michie Shehadie & Company

Orders

1. By consent orders and notations are made in accordance with the document titled “Orders” marked Exhibit 1 and attached hereto.

2. That each of the parties provide a list of relevant documents pursuant to Rule 13.20 within 21 days from today's date. 

3. That not later than 74 days from today's date or such further time upon which the parties can agree, the husband is to vacate the property at S in the State of New South Wales and thereafter is restrained from entering or coming onto that property without the consent of the wife. 

4. Leave to approach the Listing Manager for the first day of the less adversarial trial in these proceedings. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC1012 of 2007

MRS ALHAMBRA

Applicant       

And

MR ALHAMBRA

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to exclusive occupancy and discovery.  The parties have resolved other issues and I have already made orders in relation to spousal maintenance, interim property, interim costs and withdrawal of a caveat and a notation in relation to rental income. 

2. The issues they could not resolve are those that I have identified; exclusive occupancy and discovery. 

3. The wife and husband are 38 and 39 years of age respectively, were married in 1991 and separated in January 2006.  They have two children, a son and daughter, who are 9 and 5.  I understand that the wife has substantially been a home-maker and the husband trades as a handyman. I understand that he is in business with his brother. 

4. There is some dispute about it, but the story seems to be that the parties lived under one roof from separation until early July 2006.  The wife and the children left the premises and came back a couple of weeks later.  She says, and the husband denies, that he moved out for a couple of days. On 23 September 2006 the wife and children moved out. 

5. The Court has power to make an order in relation to the occupation of the former matrimonial home.  That is specifically identified as one of the things that might be the subject of an injunction pursuant to s.114(1).  Section 114(3) provides power for the granting of an injunction by interlocutory order or otherwise in any case in which it appears to the Court to be just and convenient to do so.  It can be done either unconditionally or on such terms and conditions as the Court considers appropriate. 

1. The old authorities had it that exclusive occupation would only be ordered in the most extraordinary circumstances.  Since then there has been a softening of that approach, the decisions focusing mainly on whether it is reasonable or practicable for parties to live together.  That is not the issue here.  Neither of the parties proposes that they live together.

2. So the question is, is it just or convenient for the making of an order, a mandatory injunction in this case, to put the husband out of the house. 

3. These are always difficult proceedings.  Apart from anything else, the thing that was identified in the early cases, Davis and the other cases from 1976, is there is something very emotional about putting someone out of their house.  This case is argued on a number of bases and it is not the most compelling of cases.  In other words, without demeaning anybody, often there is a situation where one party and the children are camping on the bed of someone's overcrowded house or there is literally nowhere else, no proper accommodation for them to be.  Often there are special features of a case including a parent or a child under some disability or with some illness.  There is none of that here.  There is no urgency. That is demonstrated by the fact that it has taken this long for this application to be made. 

4. Sometimes there can be a tactical aspect to an exclusive occupation application.  That the application is being made just to put pressure on for final settlement.  That is not said to be an issue here, but I appreciate that a party may feel that way.  There is no sense in which an order for exclusive occupation would prejudge the ultimate outcome. It will have no bearing on the final property settlement that one party or the other happens to be living in the property at the time of the final hearing.  It is entirely irrelevant.

5. There is a convenience, of course, for a party who wants to retain a property by way of final relief, to remain in that property.  It is irritating to have to pack up and particularly in the husband's case where he is a tradesman. He has a work vehicle and equipment. He enjoys boating-related recreational pursuits and that he has the paraphernalia that goes with that.  I accept that it will be an inconvenience to him if he has to leave. Just as, presumably, it was for the wife and the children and their possessions when they left. 

1. The case of the wife is that the place where she finds herself with the children, while it has some nice things about it, is not suitable. There are no young children for the children of these parties to play with, there is no garage or storage facilities for bikes.  She says the apartment is relatively small and claustrophobic and it is close to a train line and there is noise which distracts the children at night.  So she intends to move.

2. The husband says, "That is fine, I built this house.  It accommodates my boat and other things.  So the children and the wife can live somewhere else," and he offers up a few suggestions which seem to be places that are more convenient and more available to her than they are to him.  He suggests a property at H or a property that he owns with his brother in C, and he has some other suggestions.  It transpires that those properties are not readily available and that something like 60 days' notice is needed if he has to move in. 

3. The wife says that the former matrimonial home is within walking distance of the children's school and that they have neighbourhood friends. The son’s close friend A is only two doors away. The daughter’s friends live around the corner. 

4. Against that, as has been said, the husband says that he designed the home for his needs, had it built accordingly. It has a high entry port for the garage to accommodate his boat, he is able to store his fishing gear and other equipment there. He says there is very limited storage place in the business premises in the city.  It is interesting that at an earlier point he did feel it was practicable for him to move out.  He says in his affidavit, ".. while we were separated under one roof I offered to move out and leave the wife and children in the house at [S]."  It is not apparent in his affidavit what the difference is in terms of the practicability of him moving his fishing gear and equipment out, then than now. 

5. I appreciate that this is an unpleasant thing, even in circumstances where the parties are never going to live together again.  It is very difficult and there is something very emotional about it.  But the simple practicality of it is even at this late stage – there are three members of this family who would be able to make better use of the house rather than one.  It is not a remarkable proposition.  In those circumstances and in the words of the legislation, it seems to me that it would be just and convenient to do that.  I cannot gainsay what I am told from the Bar table about the other properties not being available.  There is probably available to me a broad finding that the husband is in a better position to manage the finances of the family and to rearrange things to make accommodation available, but, as I say, I cannot gainsay what has been told to me.  There is no evidence of it, but it is not challenged.  That means he needs plenty of time to make arrangements.  So just doing the best I can, I will allow him 74 days, being 60 days plus two weeks.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  6 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ALHAMBRA & ALHAMBRA