GENESALIO & GENESALIO

[2018] FCCA 3458

FEDERAL CIRCUIT COURT OF AUSTRALIA

GENESALIO & GENESALIO [2018] FCCA 3458

Catchwords:
FAMILY LAW – Property – allegations of family violence against respondent – where respondent can live in another vacant property in which he has an unencumbered interest – applicant to have sole use and occupation of former matrimonial home pending final resolution of the proceeding – further hearing of the proceeding expedited.

Other materials:

Practice Direction No.2 of 2017 Interim Family Law Proceedings

Applicant: MS GENESALIO

Respondent: MR GENESALIO

File Number: MLC 7657 of 2018

Judgment of: His Honour Judge Wilson

Hearing date: 8 November 2018

Date of Last Submission: 8 November 2018

Delivered at: Melbourne

Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr A Barbayannis

Solicitors for the Applicant: Mazzeo Lawyers

Solicitors for the Respondent: Philip Gary Henenberg

ORDERS

1. The affidavit sworn by the husband on 7 November 2018 and filed on 7 November 2018 is struck out AND I DIRECT that the affidavit is to be removed from the court file.

2. UNTIL FURTHER ORDER pursuant to s 114 of the Family Law Act the wife have the sole right to use and occupy the former matrimonial home at Property A and the husband is forthwith restrained from entering or remaining on the premises.

3. Within 24 hours the wife make available for collection by the husband’s brother, Mr M, all of the husband’s clothing and personal effects.

4. By no later than 12 noon on 11 January 2019 the respondent husband file and serve the following documents –

   (a)a response to an initiating application setting out with precision the final orders he seeks;

   (b)an affidavit of evidence in chief containing the evidence he seeks to rely upon at the final hearing in support of the final orders he seeks; and

   (c)any affidavit(s) from any witness he seeks to rely upon at the final hearing.

5. By no later than 12 noon on 23 January 2019 the applicant wife file and serve the following documents –

   (a)an amended initiating application setting out with precision the final orders she seeks;

   (b)an affidavit of evidence in chief containing the evidence she seeks to rely upon at the final hearing in support of the final orders she seeks; and

   (c)any affidavit(s) from any witness she seeks to rely upon at the final hearing.

6. By no later than 12 noon on 25 January 2019 the parties each file and serve a brief case summary document (no longer than two pages) outlining –

   (a)any outstanding issues with respect to compliance and discovery;

   (b)the evidence they seek to rely upon at the final hearing;

   (c)the issues in dispute between the parties; and

   (d)the estimated length of the final hearing.

7. The matter is otherwise listed for a directions hearing on 29 January 2019 at 10:15am at which time the court will consider –

   (a)directing the parties to attend a private mediation; and

   (b)whether or not the proceeding is to be listed for a final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Genesalio & Genesalio is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7657 of 2018

MS GENESALIO

Applicant

And

MR GENESALIO

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. I make orders in accordance with the wife’s application.  These are my reasons. 

2. This case was commenced in July of this year.  On the first return the wife was represented, but the respondent had the assistance of his brother, who spoke to me by telephone at that occasion.  I adjourned the proceeding and heard the case for a second time in August.  On that occasion the respondent was “represented” by his brother, who told me he held an enduring power of attorney.  I made orders on that occasion.  Today for the first time Mr Henenberg has appeared for the father to resist the wife’s application, which I adjourned from the August mention. 

3. The wife’s application is for the sole right to enable her to use and occupy the former matrimonial home in Property A.  Before coming to the details of the father’s position, I heard from Mr Barbayannis of counsel that the application was made in circumstances where the three children, who are students, and (admittedly, they are adults) live with the wife in the property.  Mr Barbayannis told me (which I accept) and Mr Henenberg did not say otherwise that the husband has an interest in an unencumbered vacant property. 

4. To say that the relationship between the husband and wife has been punctuated by violence is an understatement in the extreme.  I was told that there are criminal proceedings or quasi-criminal proceedings are pending in the Magistrates’ Court to deal with intervention orders, returnable shortly.  Precisely who initiated the application for the intervention order is neither here nor there because there is sufficient evidence before me that the violence between the two has been ongoing for some time.  In a most recent episode the father was recorded as having said in reference to his wife that “stabbing would be too gentle”. 

5. I accept that the evidence of violence in this case is untested and that allegations and counter-allegations have been given.  However, in those circumstances and against a backdrop of pervading family violence, it is necessary for the court to intervene with a view to protecting the children, which I have done in this case. 

6. Mr Henenberg offered me an array of reasons why I should refuse the mother’s application. Suffice to say that I reject all of them. I do not accept that all avenues have not been explored to resolve the violence that pervades. I am not in a position to say who was the initiator of it but I do know that there is an unacceptable level of pervading violence that will continue if the husband and wife continue to live under the one roof.

7. It appeared to me that the reasons advanced by the husband to resist the making of the orders sought today were not at all impressive. Among them, he adduced evidence which I regarded as unsatisfactory to the effect that his medical condition is such that the husband would be put in an unacceptably risky set of circumstances by his removal from the house. The evidence of a medical nature was purportedly adduced by the husband when he was unrepresented in an affidavit that ran for more than 90 pages, squarely in contravention of practice direction 2 of 2017, which limits the page length and the number of annexures to an affidavit. While I accept that that document was prepared by the husband when he did not have legal representation, it could not be said that he was not bound by the practice direction. That applied whether he chose to read it or not.

8. I excluded his affidavit that went for a considerable amount beyond the acceptable bounds for an affidavit.  In those circumstances no evidence was before me of a medical nature that addressed whatever medical condition the husband said he was suffering.  Mr Henenberg purported to read to me what he considered were the salient pieces of information of a medical nature.  I was unable to obtain any assistance from those, particularly in circumstances when one medical person (so I was told) said that the husband’s condition was such that he was unfit for court for several months.  I will not allow that imprecise statement of information about the husband’s purported medical condition to bind what is self‑evidently a toxic set of circumstances caused or at least participated in by the husband. 

9. Then there was the husband’s outburst in court today.  That tended to confirm to me his highly volatile disposition and it rendered more probable that he was a person given to violent outbursts in the way alleged by the wife.  That fortified my position that his continued presence in the home should not be allowed irrespective of the consequences might follow from that, none of which were particularly probative nor persuasive to my way of thinking. 

10. I base this decision principally on the consequences to the children of the ongoing skirmishing between warring parents.  It must stop.  If it will not stop voluntarily by their own doing, then I must involve myself in that set of circumstances and therefore make orders for the removal of the husband.  I make orders in accordance with the mother’s submission. 

11. The trade-off to that is the recognition that the husband’s exclusion may represent some dislocation or inconvenience to him.  Through Mr Henenberg a statement was made to the effect that the husband will be adversely affected by reason of his financial circumstances.  No admissible evidence was led to that effect.  I accept that in all likelihood the husband will be inconvenienced.  In return for the order for his exclusion from the former matrimonial home, I will make an order bringing this case to trial ahead of other cases awaiting trial so that it will be tried before me sooner than would otherwise be the case.  I will leave it to counsel to discuss proposed directions.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     27 November 2018