E Pty Limited and Ors and Klearchos and Ors

[2015] FamCA 313

FAMILY COURT OF AUSTRALIA

E PTY LIMITED AND ORS & KLEARCHOS & ORS [2015] FamCA 313

FAMILY LAW – PRACTICE AND PROCEDURE – Injunctions

Family Law Act 1975 (Cth)

APPLICANTS: E Pty Limited, Q Pty Limited & R Pty Limited

1^ST RESPONDENT: Ms Klearchos

2^ND RESPONDENT: Mr Klearchos

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2997 of 2013

DATE DELIVERED: 26 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 26 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Connor

SOLICITOR FOR THE APPLICANTS: Argyle Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Bell

SOLICITOR FOR THE 1^ST RESPONDENT: Neville & Hourn Legal

COUNSEL FOR THE 2^ND RESPONDENT: Mr Lloyd, SC

SOLICITOR FOR THE 2^ND RESPONDENT: Barkus Doolan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

1. That the husband is excused in proceedings between (E Pty Limited) and the wife today.

2. That orders are made in accordance with the Minute of Order filed in Court today and signed by Johnston J and placed with the Court papers as set out hereunder:-

   1.        Dismiss application in a case filed on 10 November 2014.

   2.        [deleted]

   Pending further order

   3.Order that the wife confine her communication to Mr and Ms EE and other staff to communication in writing (including email or text) to give them not less than 48 hours notice of intention to occupy the property.

   4.Order the wife to confine her visits to visits by herself and with the children.

   5.Note the wife undertakes not to rent or lease the I Town property pending further order and without admission.

   6.That all use of the quad bikes by the children be supervised by the wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  E Pty Ltd and Ors & Klearchos and Ors 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 2997 of 2013

E Pty Limited, Q Pty Limited and R Pty Limited

Applicants

And

Ms Klearchos

1^st Respondent

And

Mr Klearchos

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application by the companies E Proprietary Limited, Q Proprietary Limited and R Proprietary Limited (“E”) for orders concerning its property at I Town.  E is a party to proceedings before Mr Klearchos and Ms Klearchos about property settlement and other financial matters.  For convenience, I shall refer to them as “the husband” and “the wife”.

2. Orders were made on 14 June 2013 in relation to various matters including order 10 which reads as follows:

   Each of the husband and [E] be and are hereby restrained by injunction from doing any act or thing that may interfere with the wife’s use and occupation of the [I Town] farm including all the furniture, furnishings, artwork and household effects, and motor vehicles situated at or in the [I Town] farm.

3. Those orders were varied by orders which were made on 8 September 2014.  Order 1 of those orders reads as follows:

   Order 10 made on 14 June 2013 be varied in respect of [FF Street, I Town] (“[I Town] Farm”) to allow

   a.the husband, [E] and the wife shall co-operate in respect to the sale of the [I Town] farm, including but not limited to: 

   i.making the key available to the agent; 

   ii.allowing access to the farm at all reasonable times on reasonable notice to prospective purchases, valuers and licensed real estate agents; 

   iii.doing or saying nothing to hinder or prevent a sale being effected; 

   iv.co-operate in maintaining the farm in a tidy and reasonable condition and repair pending completion of the sale of the farm having note to its current condition.

4. Unfortunately, there have been some difficulties.  The company now makes an application for those orders to be discharged and for an order that the husband and the wife be restrained by injunction from using or occupying the I Town farming property. 

5. That application is opposed by the wife.  Learned counsel says on her behalf that the wife continues to be supportive of the property being sold.  Counsel said that the wife would agree to be bound by certain restraints, such as that she would not present the property, or take steps to advertise the property, for commercial rental, and she would agree to reasonable restraints in terms of her behaviour.  But she opposes the wholesale discharge of the orders. 

6. The property is a working farm on which until recently there were cattle and sheep grazing, and it has an orchard.  I understand from the material before the Court today that E has now caused the cattle to be sold.  Before the married parties separated, they were in the habit of visiting the farm with the children and enjoying its amenities.  Since separation, the wife has continued to visit the farm with the children, mainly on weekends and school holidays. 

7. The farm has a manager, Mr EE.  His tenure as manager reaches back to happier times.  The wife says that before separation, she had what she regarded as a pretty good relationship with Mr EE.  In fact she says that she was the person who was responsible for the engagement of Mr EE as farm manager.  I note that Mr EE, his wife and children also live on the property.  They live in a manager’s cottage which is separate from the main homestead.

8. Difficulties have developed between the farm manager and the wife.  The extent of those difficulties is less clear because a lot of allegations against the wife are made by the company.  There was a considerable number of affidavits, not only by Mr EE but by other persons, making various allegations.  The wife has not responded in detail to those allegations.  But her general position is that she denies much of what is alleged to have occurred.

9. In any event, Mr EE says that he feels uncomfortable around the wife.  He says that in October 2014, she informed him that she had attended the police station and commenced preparation of documents which would support an application for an apprehended domestic violence order against him. 

10. Mr EE says that the wife had been asserting to him that she has exclusive rights to occupy the homestead and the farm.  He says that this attitude by the wife has placed him in situations of conflict from time to time.  He says that on the one hand, he has a duty to his employer, E, to maintain the farm to the highest standard, but is unable to do this at all times, because his wellbeing has been affected by certain behaviour of the wife.  He says that the wife has made a considerable number of requests of him, mostly it would seem about making the homestead ready for her advised occupancy.  He says that his duties of employment do not extend to such matters but he endeavours to assist the wife as requested.

11. Mr EE also has a concern that the children of the husband and the wife have been using quad bikes unsupervised, and he is concerned that E might become liable if there are accidents. 

12. I note that E is under administration, the administrator being Mr GG. 

13. Mr HH is a director of E.  He says that if the wife is permitted to continue to use the I Town property, he is concerned that the sale of the property as required under the current court orders will not be achieved.

14. There are various allegations made by Mr HH and the farm manager about difficulties involving the wife.  There was an incident alleged in October 2014 in which it is clear that the wife applied a lock to the study door.  She said that she did this for the purpose of securing various valuable items in a context where prospective purchasers would be inspecting the homestead.

15. Mr HH says that the wife has removed some wine and items of artwork from the property which belongs to E.  Mr HH also says that he has a concern that the wife has been renting out the I Town property.  It is clear that has been the case.  But the extent of that and the period over which the property was being offered for commercial rental is unclear to me.  My perception of what has occurred is that there have been a couple of occasions, perhaps two or three occasions, involving a weekend, when the farm has been rented.  In any event, that is a matter which might become clearer or some other occasion.

16. The insurance policy in relation to the property provides personal liability cover to the husband and/or any family member.  It appears that the policy extends liability cover to E, only to the extent that it is legally obligated to pay damages for personal injury or property damage caused by an occurrence which arises from its ownership of the residence, unless stated otherwise or any exclusion applies.  So there seems to be clearly some limitation on what is covered.

17. The farm manager went on stress leave between 11 and 29 December 2014, he says because of the wife’s harassment and threats to him.  He says that the wife, her partner Mr II and the children visited the property over a weekend in early December 2014.  He says he noticed farm gates had been left open, which he says can result in stock wandering out onto the public road.  He says that this behaviour by the wife and her guests make it impossible to maintain safety.  Mr EE says that he has since been instructed by the company to place locks on the gates and remove the keys to the quad bikes. 

18. The wife denies these allegations.  The wife says that the quad bikes were gifts to the children.  

19. Ms EE, who is the spouse of the farm manager, sets out in her affidavit what she describes as having been threats directed to her and also to Mr EE by the wife and the wife’s partner, Mr II.

20. Ms EE also says that persons had been staying at the property unaccompanied by the wife.  Clearly that must be the case, because the wife has conceded some occasions of rental. 

21. Mr JJ, who is the secretary of K Pty Ltd and obviously a business associate of the husband, says that he has been threatened by Mr II.

22. The case for E is that the wife was permitted to continue to have occupancy of the farming property over the period from the time of the order until such time as the property was sold.  As a consequence of the deterioration in the relationship between the wife and Mr EE, the situation has really become unworkable and E has a number of concerns.  Firstly, it is concerned that the behaviours about which it complains will have an effect on the likelihood of achieving a sale of the property for a reasonable sum and the company is desirous of achieving such a sale.  The situation has just become unworkable, and despite assurances by learned counsel for the wife that the wife would be prepared to subject herself to various restraints, it would not be possible to put restraints in place which would achieve what needs to be achieved.  This would be that Mr EE would be able to continue as farm manager, that he would be working without finding the necessity to go on stress leave, that the potential for the property to be appropriately marketed and ultimately a sale achieved would all be compromised by any opportunity for the wife to continue to be able to visit the property.  This is because things have reached such a poor state that it would be optimistic in the extreme to expect that the parties would be able to achieve some sort of cooperation, or that there would not be any repetition of the behaviours complained about.

23. On the other hand, the wife’s case is that she and the children have visited and had the use of the I Town property over the course of the marriage and obviously since separation.  My understanding is that the whole family from time to time enjoyed the amenity of that property.  She says there is no proper reason why that position should not be able to be continued.  As I say, she says that she would be prepared to submit to restraints which would deal with those matters about which the company complains without any admission on her part about such behaviours.

24. Clearly, it is important for the farm manager to be able to remain on this property.  After all, in the absence of a farm manager, one can only wonder how E would be able to manage this asset.  If Mr EE fears he is unable to continue, then obviously some person would have to be hired in order to be able to look after this property.  I note that it is described as a hundred acre property.  I can take judicial notice of the fact that 100 acres of rural land would require some considerable maintenance or it would fall into a state of disrepair.

25. I am not persuaded that appropriate restraints could not be put in place.  But these will have to be quite confining.  Mr EE needs to be able to attend to his duties.  Mr EE seems to be very clear about what his duties involve.  I do not read the orders to entitle the wife to order Mr EE, or direct Mr EE, or even ask Mr EE to do anything at all.  They simply enable her to use and occupy the farm, including its furniture, furnishings, artwork and household effects, and the motor vehicles of the farm.

26. So what I propose to do is to dismiss the application but to put in place a number of restraints which would limit any opportunity for there to be the sort of behaviours, whether in fact they occurred or not, about which Mr EE and Mr HH have complained. 

27. So I would dismiss the application.  My intention is that the wife and the children should be able to continue to enjoy this property and its amenities until the property is sold. 

28. That will not extend to any other persons, including Mr II, because this Court has no control whatsoever over Mr II.  He is not a party in these proceedings, so there would be a restraint on the wife.  She would be restrained from permitting him to attend.  There would be a restraint on the wife from communicating with Mr EE or any other farm manager, other than in writing, and a restraint on her directing him in any way.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 26 February 2015.

Associate:     

Date:              30 April 2015