Alhambra and Alhambra (No. 2)

[2007] FamCA 1021

FAMILY COURT OF AUSTRALIA

ALHAMBRA & ALHAMBRA (NO. 2) [2007] FamCA 1021

FAMILY LAW - PROPERTY – Exclusive occupation – Application dismissed

APPLICANT: Mrs Alhambra

RESPONDENT: Mr Alhambra

FILE NUMBER: PAC 1012                of 2007

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: COHEN J

HEARING DATE: 24 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Ms Mesner

SOLICITOR FOR THE RESPONDENT: Michie Shehadie & Co.

Orders

1. The wife’s application for exclusive occupancy of the former matrimonial home at S is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cohen delivered this day will, for all publication and reporting purposes, be referred to as Alhambra & Alhambra.

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 initiated by the wife for exclusive occupation of the former matrimonial home at S.  The parties married in November 1991 and have two children, aged 9 and 6 years, who attend infants or primary school at S.  That school is quite close to the former matrimonial home and it can be assumed that, when the children have to go to school from it, it takes them five minutes or thereabouts to get to or from school, depending on whether they walk or drive.

2. The parties separated under the one roof in January 2006.  The wife moved out with the children on 6 July 2006, but on 21st of the same month she moved back and, presumably, the husband moved out.  She says that only a few days later he returned.  He is still living there.  The wife seeks that she have exclusive occupation of the home and of the garage.  The occupation of the garage is a matter of some significance because of the particular facts of this case.  The husband also seeks, in effect, exclusive occupation.

3. On 24 September 2006, the wife and children left again.  The wife obtained a rented flat and is still living there.  The flat is a three bedroom flat in W which, I presume, is close to A.  According to the parties, it is 10 to 15 minutes drive from S school.  The wife has furnished the flat and has been living there now for close to one year. 

4. The children, as a result of consent orders, spend at least five nights each fortnight with the husband at S and the balance of the time with the wife.  The wife says she is a housewife who devotes herself full time to the care of the children; whereas the husband has, in partnership with his brother, a business. 

5. However, businesses of the husband, his brother and also the wife, involve property.  The parties either alone or in partnership with the husband's brother, or for the husband's business, which he has in partnership with his brother, own about 11 properties, one of which is the former matrimonial home. The latter is worth between $900,000 and $1 million and is virtually unencumbered.  The other properties the parties either own individually or in common or, as to the husband with the husband's brother, through the business, are all flats or home units so far as I can tell.

6. It is agreed that the parties' net property is about $2.5 million, roughly.  That does not include the valuation of the business. It is in dispute.  The husband says his share of the business is worth $30,000; the wife says it is worth considerably more.

7. What appears to be clear is that, if the parties have financial problems, they are of their own making because of the arrangements that they have made before separation and the consequences of those to this date.  What is equally clear, if it is true that they have financial difficulties, is that an application to this Court for interim orders could be expected to overcome those difficulties.  I am not satisfied that the financial difficulties that the parties claim are claimed for any other but tactical reasons. 

8. Each of these parties appears to me, on the evidence that is before me, to be using whatever tactics they can muster to gain an advantage over the other in these proceedings. Those tactics, in each party’s case, seem to include claims of financial hardship when they have no real need to be in such hardship.  I shall not decide this case based upon any claim by either party that they are suffering any financial hardship because I am not satisfied that they are suffering such hardship other than of their own making and of a passing nature which could be cured by a proper application. Even though, in the past, some applications for the sale of property have been made, there is still room, if there is still real financial hardship in either of them, and as I have said both of them claim it, for them to obtain orders which alleviate that hardship.  

9. The wife says, apart from for financial reasons, she should be living in the former matrimonial home because she is claiming it ultimately in the dispute between the parties; because the children have always lived in the home at S; that they have always known it as their principal home; that it is closer to their school; that it is larger than the flat she now lives in, and that it is therefore, for all of those reasons, the most suitable place for her and the children to live.

10. However, the husband is living there.  He claims it will cause him inconvenience to leave and that he has a large amount of property stored in the large double garage.  The property is not all his.  Part of it is the property of a sporting club to which he belongs.  I am of the view that I should not regard the need to store the club’s property in the home as a reason to make a decision in these proceedings, because I cannot accept that his wish to store such property in the parties' home should weigh on the issue of balance of convenience. It is the club's obligation to look after its own property and not to cause difficulty for either of the parties.

11. However, the husband says he has business records and business equipment in the garage which he has no room to store at his business premises.  He also says he has a large amount of his own equipment in the garage.  He is obviously very keen on fishing and most of the equipment that he speaks of is fishing equipment.  No doubt, he is devoted to it and is entitled to have somewhere to keep it.  In my opinion, he could keep all of the business records and all of the fishing equipment in rented storage space, although it would not be as convenient for him or as accessible and it would cost a modest amount. In view of the assets of the parties, I think that the cost of storage would be so small that it is virtually not worth considering.

12. However, the husband has lived in the home for one year, and the wife and children have lived in the unit the wife rents for the same amount of time since they have physically separated.  In fact, the husband has, at all relevant times, lived in the former matrimonial home. His residence there has simply been a continuation of the pre-separation situation. 

13. As to the issues of the convenience and the needs of the children, I think that this can be said: currently there is nothing to suggest that the children are not settled where they are in the mother's rented unit.  In any event, the children live with the father on five days a fortnight in the former matrimonial home, so the idea of them being better off in the former matrimonial home than in the mother's rented premises involves only an advantage to the children on a few days each fortnight. The next thing which ought to be said is that the husband, too, seeks to have the former matrimonial home as part of his share of property of the parties under s.79A if he succeeds and the children continue to live principally with the mother.  They may have to move, again, from the former matrimonial home if I allow the mother exclusive occupancy of it. 

14. I have considered doing so, but with a caveat, the caveat being that the husband should maintain access to the garage and the ability to continue to keep what he has stored in it.  It seems to me to be likely to be inconvenient for him to have to move all of that property out and extremely unfair and inconvenient if he was to be prevented from access to it if he decided not to move it out or had nowhere else to conveniently locate the property.

15. The wife makes a number of complaints about the flat that she lives in.  She says it is near a railway line and the trains are noisy; it is smaller than her home; that the children have nowhere in the flat to store their bicycles, and that most of the occupants of the building where the flat is are either young couples or single persons and, therefore, there are no other children in the block with whom the children can play. 

16. The last claim is rather ludicrous, in my opinion, and has no weight.  Children play with neighbourhood children.  Neighbourhood children are not limited to the children who live in the same block of flats, just as they are not limited to the children who live in the same actual building which is their home.  Bikes do not take much space. What the mother says is that there is no garage for the children to store their bikes.  No doubt, they can store them in the hall or their bedrooms and that would not cause them any hardship at all, although the wife might think it is not as neat. The wife chose the apartment despite the fact that it was near a train line and despite the fact that she now says it is relatively small and claustrophobic. 

17. The husband says that if the wife finds this particular unit inappropriate and too expensive for her, he can offer her one of the other flats that either he or he and his brother, or he and the wife own, at H.  If that is the case, he could move to it because, if my only obligation was to decide which of the two parties should live in it, I would decide that the balance of convenience would favour the wife because the children would be far too far from their school if they lived with her at H for much of the time.

18. I am of the view that the wife's case is extraordinarily weak, as is the husband's.  Both of the parties have offered very little of real substance to support what they claim.  I am not satisfied that the balance of convenience favours either party.  There are some elements of convenience that favour the wife and children and one that favours the husband in that he is living in the home, all of his things are there. As I have said, the wife might be regarded as conveniently able to live in the home where she has been settled for a year, as might the children. I am not satisfied it is in their interest to move back to the former matrimonial home. In all of the circumstances, because I am not satisfied that the balance of convenience or needs of the children favour either party, I am not prepared to make any orders and I refuse the application for exclusive occupancy by the wife. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  5 September 2007