Cerny and Cerny
[2011] FMCAfam 737
•11 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CERNY & CERNY | [2011] FMCAfam 737 |
| FAMILY LAW – Property – interim application – exclusive occupation of matrimonial home – where parties separated under the one roof. |
| Family Law Act 1975, ss.79, 114 |
| In the Marriage of Davis and Davis (1976) 1 Fam LR 11522; FLC 90-062 Mullane v Mullane (1983) 8 Fam LR 777; FLC 91-303 |
| Applicant: | MS CERNY |
| Respondent: | MR CERNY |
| File Number: | SYC 3469 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 August 2011 |
| Date of Last Submission: | 11 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Antwan Lawyers |
| Solicitors for the Respondent: | H.K Husseini & Co Solicitors |
ORDERS
UNTIL FURTHER ORDER
The Applicant wife is to have the sole right to occupy the former matrimonial home at Property B in the State of New South Wales.
The Respondent husband is restrained by injunction from entering or going upon the premises being the former matrimonial home at Property B in the State of New South Wales without the consent of the wife or Order of the Court.
The wife is to pay all council rates and Sydney Water charges in respect to the former matrimonial home promptly as they fall due.
IT IS NOTED that publication of this judgment under the pseudonym Cerny & Cerny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3469 of 2007
| MS CERNY |
Applicant
And
| MR CERNY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for exclusive occupation of the former matrimonial home. The husband opposes that application.
Orders Sought
The wife seeks this order, as set out in her application filed on 17th March 2010:
That, pending further order, the wife have sole right to occupy the matrimonial home at Property B, and the husband pay all Council rates and Sydney Water charges with respect to the said property.
The husband, in his Response filed on 10th June 2010, asks the Court to dismiss the wife’s interim Application with costs.
Background
The parties were married in Lebanon [in] 1973. They migrated to Australia in 1977. There are six children of the marriage, all of whom are now adults.
The parties differ as to when they separated. The wife claims in her originating application that they separated on 21st October 2005. The husband deposes in his sworn on 24th March 2011 that they separated on or about 1st January 2010.[1]
[1] Affidavit of Mr Cerny 24.3.2011 at paragraph [3]
They have continued to reside in the former matrimonial home at [B], except that the husband’s residence in the home has been intermittent. He has travelled to Lebanon on more than two occasions and has remained there for lengthy periods. At the time of the hearing the husband was again in Lebanon.
The husband obtained a divorce from the wife according to the law of Lebanon on 10th June 2010.
The matrimonial assets consist mainly of the former matrimonial home, which is in joint names, and a home unit at Property L, [L], which is in the husband’s name. The wife also claims that the husband has purchased two properties at [T], in Lebanon.
Evidence
The wife relies on her affidavit affirmed on 1st July 2011. The husband relies on his affidavit sworn on 24th March 2011.
It is the wife’s case that the situation between the two parties whilst the husband is living in the house has gone from “very uncomfortable” to “unbearable”.[2] In particular, she refers to:
a)An incident on or about 19th March 2011 where the husband and a male friend were removing items from the garage around midnight, which resulted in a confrontation between the parties’ son [name omitted] and the husband and the wife having a panic attack which required an ambulance to be called;[3]
b)An incident about two weeks earlier where the wife claims the husband spat in her face and then went next door to a neighbour’s house to complain that the wife had hit him;[4]
c)The husband lives in the house for about two months and then goes away for about two months, which the wife claims is “disruptive” because she does not know whether he will be there or not;[5] and
d)The husband has intimidated her when he is in the house, buy slamming doors in her face, throwing and breaking plates, removing all her gold jewellery and her underwear and threatening to attend Sunday barbecues which she puts on for her children and grandchildren.[6]
[2] Affidavit of Ms Cerny 1.7.2011 at paragraph [2]
[3] Affidavit of Ms Cerny 1.7.2011 at [4] and [5]
[4] Ibid at [7]
[5] Ibid at [8]
[6] Ibid at [9]-[11]
The wife is aware of the Islamic divorce and believes that the husband has remarried. She expresses a fear that he will bring his new wife to Australia and bring her to live in the former matrimonial home.[7]
[7] Ibid at [12],[13] and [16]
The wife claims that the husband operates a business [omitted] from the garage of the matrimonial home, with people coming and going at all hours, which she claims means that she does not feel safe.[8] She annexes to her affidavit a copy of a pamphlet advertising his [business omitted].
[8] Ibid at [14]
For his part, the husband deposes that he has travelled to Lebanon for extended periods in 2010 and 2011. He claims that the wife has changed the locks on the former matrimonial home and he has had to sleep on a mattress on the floor of a friend’s home.[9] He claims that since he and the wife separated the entire family became aggressive towards him. To protect himself, he changed the lock on the door of the bedroom he was living in at the former matrimonial home.[10]
[9] Affidavit of Mr Cerny 24.3.2011 at paragraphs [8]-[10]
[10] Affidavit of Mr Cerny 24.3.2011 at [11]
The husband claims that the wife has:
a)changed the locks on the garage he cannot enter;[11]
b)called the police on more than one occasion in an attempt to have him charged;[12]
c)used abusive language to him;[13]
d)threatened to kill him;[14] and
e)broken into his room while he was away from the house.[15]
[11] Ibid
[12] ibid
[13] Ibid at [12]
[14] ibid
[15] Ibid at [13]
The husband is currently out of Australia. In his affidavit, he explains that he had to go to Lebanon to seek accommodation with his family there “because I have no relatives or no friends to accommodate me in Australia, I had no alternative but to borrow money and go overseas”.[16]
[16] Ibid
The husband also claims:
I am left alone in this country with no family or work.
Faced with the Applicant’s intention of harm, together with the fact that I have no family whatsoever in Australia, I cannot stay anywhere…The only alternative left to me is to go overseas until such time that this application is being determined…I crave leave of this honourable Court to grant exclusive residency of the matrimonial property to myself so that I can resume some work to support my living.[17]
[17] Ibid at [14] and [17]
Submissions
The wife’s solicitor, Mr Gilchrist, told the Court that his client sought an injunction under s.114(1) of the Family Law Act, restraining the husband from entering or remaining in the former matrimonial home. There is no Apprehended Violence Order in force, nor are there any proceedings pending, for “cultural reasons”.
Mr Gilchrist referred the Court to the decision of Davis and Davis[18], setting out the criteria to be observed when dealing with an application for exclusive occupation.
[18] (1976) 1 Fam LR 11522; FLC 90-062
It was submitted that the husband has apparently sufficient funds to travel to and from Lebanon and a regular stream of income from his [omitted] business, along with rental income from the property at [L]. Mr Gilchrist submitted that the husband should be able to live in the unit at [L].
It was further submitted that the wife believes that the husband has remarried and does not want him bringing his new wife back to the former matrimonial home. The husband also has cousins in Australia with whom he could live.
The husband’s solicitor, Mr Husseini, submitted that there was no evidence that the husband had remarried, even though the wife claims that he is. He submitted that the wife had been the instigator of the incidents which have caused friction between the parties. He conceded that his client was currently in Lebanon.
The Relevant Law
The power to make an order excluding a party from the matrimonial home is to be found in paragraphs 114(1)(b) and (f) of the Family Law Act 1975:
In proceedings of the kind referred to in paragraph (e) of the definition of “matrimonial cause” in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;…
(f) an injunction relating to the use or occupancy of the matrimonial home.
It is well established that the criterion for the exercise of the Court’s power under s.114(1) is simply that the Court may make such an order as it thinks proper:
The matters which should be considered 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 asking for the expulsion from the home of the first party.[19]
[19] In the Marriage of Davis and Davis (1976) 1 Fam LR 11522; FLC 90-062 per Evatt CJ, Pawley and Ellis JJ
Conclusions
An application for an order for exclusive occupation of the former matrimonial home involves two questions:
a)Should the property be occupied by one party?
b)If so, which party should leave?
The onus of establishing a case for exclusive occupation will rest on the party seeking the exclusion order. The test is that it must be proper to make an exclusive occupation order. In determining what is proper the Court needs to determine whether or not it is reasonable or sensible or practical to expect the parties to remain in the home together
The test is an objective one. Each case is determined on its own merits and according to its own facts. The Court ought not, however, order that a party be removed from the property unless it is of the opinion that such a course is necessary rather than merely convenient. An exclusive occupation order should be granted only for good reasons and should not be made lightly. It should exist on more substantial grounds rather than mere balance of convenience. However, balance of convenience may properly decide the matter where there is intense disharmony between the parties to a marriage or where each would have an equally good case for excluding the other.
The Court will have regard to the following guidelines when deciding whether an exclusive occupation order should be made:
a)The means and needs of the parties;
b)The needs of the children, where relevant;
c)Hardship to either party or to the children of the marriage;
d)Conduct of the parties; and
e)Whether has been any physical assault.
When considering the means and needs of the parties, the Court must consider:
i)the parties’ income and financial resources;
ii)the presence and availability of accommodation; and
iii)the degree to which the home is an essential part of any business owned or run by a party.
The husband has a [omitted] business but says he has little in the way of financial resources. The wife does not work.
There is no evidence that the wife has any alternative accommodation available to her. The husband, on the other hand, has a home unit in [L] registered in his name, which is currently tenanted. Also, from his affidavit, he has clearly spent a significant amount of time in Lebanon. The husband was actually in Lebanon at the date of the hearing.
The husband has a small business [omitted] from the garage of the matrimonial home. This does not appear to be his main source of income, or a substantial part of it.
There are no children under the age of eighteen years whose needs have to be considered.
I am not persuaded that there will be any particular hardship to the husband if an order were to be made excluding him from the former matrimonial home until the finalisation of the property proceedings.
It is the wife’s evidence that the husband’s behaviour has been intimidating and threatening. She claims that he has spat on her, which is an assault. It is not, however, the most serious set of circumstances relating to assault.
Overall, I am satisfied that the wife’s evidence of the husband’s behaviour, albeit untested by cross-examination, is sufficient to find that it is appropriate to make an order excluding him from the former matrimonial home until the property proceedings are finalised.
The hardship to the husband would not be great, as he has spent very little time in the home in recent months and has decided to spend time with family members in Lebanon. The concern for the wife is that she never knows when he will return and their hostilities will recommence.
It can hardly be the case that the husband needs access to the garage of the property in order to run his [omitted] business. If he is away in Lebanon for months on end, he can hardly be running a thriving business from the garage.
The wife should be aware, however, that an order for exclusive occupation of the former matrimonial home does not necessarily mean that the sole title to the home will be awarded to her when the property proceedings are finalised.
I propose to make an order excluding the husband from entering or occupying the former matrimonial home until further order. However, I do not see why the husband should be required to pay the council rates and Sydney Water charges for a property from which he has been excluded. If the wife is living in the property, she should pay the council and water rates.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 11 August 2011
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