BOLTON & KINGSFORD

[2015] FamCA 566

FAMILY COURT OF AUSTRALIA

BOLTON & KINGSFORD [2015] FamCA 566

FAMILY LAW – PROPERTY – INJUNCTION - Exclusive occupation – Pending further order husband restrained from entering upon or attempting to reside in the property

APPLICANT: Ms Bolton

RESPONDENT: Mr Kingsford

FILE NUMBER: SYC 3556 of 2015

DATE DELIVERED: 15 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

(Orders made 15 July 2015)

1. Pending further order, the wife be granted exclusive occupation of the property at B Street, Suburb A and that the husband be retrained from entering upon or attempting to reside in that property.

Orders 2-5 not relevant to this judgment

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bolton & Kingsford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3556 of 2015

Ms Bolton

Applicant

And

Mr Kingsford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife seeks an order that she have exclusive occupation of the property at B Street, Suburb A and that the husband be restrained from entering upon or attempting to reside in that property. That is sought as an interim order, pending further order. It is the husband’s position that this application should be dismissed as being unwarranted and unnecessary.

2. In support of the order she seeks, the wife relies upon various paragraphs in an affidavit filed 3 June 2015 and in opposing that order, the husband relies upon [37] to [44] and [50] and particularly [40] of his affidavit filed 15 July 2015.

3. The wife in her affidavit says that in 2015 the husband probably only spent about 10 nights at the property. He travelled internationally in relation to his business.

4. The wife says that the separation occurred on 8 May 2015. There was an incident at the property on 7 and 8 May 2015. The wife gives her version of that incident in some detail at [57] to [65] of her affidavit. At the height of that argument, the wife alleges that the husband grabbed her hair with both his hands and pulled her head down towards the floor with such force as to tear hair out of her scalp.

5. The husband indicates that he is facing a number of criminal charges arising out of this incident which have a return date at a Local Court on 20 August 2015. He says he has been charged with two counts of common assault and one count of assault occasioning actual bodily harm. There is no details given as to what are the particulars of those three charges. It is common ground that as a result of this incident, the police issued a provisional apprehended violence order and that is also returnable at the Local Court on 20 August 2015.

6. Given the pending criminal charges, the husband in his affidavit chooses not to give his version of the incident on that night. No application was made under s 128 of the Evidence Act.

7. At [67] of her affidavit, the wife says that what she alleges happened on 7 and 8 May 2015 was not an isolated incident and that there have been other incidents that involve the husband where his behaviour has included mood swings, aggression, spitting and a suggestion that the husband, at least in 2013, was using methamphetamine. There is no response by the husband to any of these general allegations made by the wife. I do not place a lot of weight on that paragraph because of the generality in which it was given.

8. The husband in his affidavit at [40] says that whilst the Sydney house is registered in his sole name he no issue for the wife to remain living with the children in the Sydney house pending determination of the financial proceedings between them. He also has no issue with the children remaining in the wife’s care.

9. There is an issue between the parties at the moment as to whether or not the financial proceedings will take place in New Zealand or in Australia.

10. What the husband does not say in [40] is what his attitude is to the exclusive occupation which the wife is seeking and what his attitude is to the injunctive order the wife is seeking to restrain him from coming to the home. I am asked to infer from what I have been taken to in the husband’s affidavit that he means not to come back to the property until the property proceedings have been completed. I am unable to infer that.

11. On the basis of the evidence that I have there is more than sufficient factual basis to find that it is proper to grant the relief the wife seeks. It would not be reasonable or sensible or practicable for the parties to live under the one roof. There are circumstances arising out of the marital relationship which make it necessary to temporarily restrain the husband from exercising his property rights.

12. Accordingly I will make an order in the form sought in the wife’s application.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 15 July 2015

Associate:

Date:  21.7.2015