Hejiz and Hejiz
[2017] FamCA 1062
•20 December 2017
FAMILY COURT OF AUSTRALIA
| HEJIZ & HEJIZ | [2017] FamCA 1062 |
| FAMILY LAW – PROPERTY – Injunctive relief – Sole use and occupation of matrimonial home – Relevant considerations – Wife granted sole use and occupation. |
| Family Law Act 1975 (Cth) s 114 |
| Davis & Davis (1976) FLC 90-062 Davis & Davis (1983) FLC 91-319 Marvel & Marvel(No. 2) [2010] FamCAFC 101 P & P (Unreported, Family Court of Australia, Lindenmayer J, 12 July 1982) Sieling v Sieling (1979) FLC 90-627 |
| APPLICANT: | Ms Hejiz |
| RESPONDENT: | Mr Hejiz |
| FILE NUMBER: | PAC | 4581 | of | 2017 |
| DATE DELIVERED: | 20 December 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 11 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Stenhouse |
| SOLICITOR FOR THE APPLICANT: | Regency Lawyers |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Mr Kalouche of CK Lawyers |
Orders
That the husband shall vacate the former matrimonial home at 1 B Street, Suburb C, NSW by no later than 5.00 pm on Sunday, 31 December 2017 and that thereafter the wife shall have sole use and occupation of that property pending further order provided always that the wife pay as they fall due and payable property outgoings including council rates, water rates and insurances.
That the husband is restrained when vacating the former matrimonial home at 1 B Street, Suburb C, NSW from removing any items of furniture, furnishings and personalty therein save for his clothing, personal effects and work equipment including any stock and tools of trade without the written consent in writing of the wife with such writing to include SMS or email communication.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hejiz & Hejiz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4581 of 2017
| Ms Hejiz |
Applicant
And
| Mr Hejiz |
Respondent
REASONS FOR JUDGMENT
The application for determination is the wife’s application for an order that she have sole use and occupation of the former matrimonial home at 1 B Street, Suburb C.
The wife filed an Initiating Application seeking orders as to property adjustment and spousal maintenance on 12 September 2017 that, in summary, provide that:
a)the husband transfer to her his interest in the former matrimonial home at 1 B Street, Suburb C;
b)the wife transfer to the husband her interest in the parties’ investment property at 2 B Street, Suburb C;
c)the husband pay by way of periodic spouse maintenance the sum of $500.00 per week to the wife for a period of five years from the date of orders.
Otherwise, in her Initiating Application the wife, inter-alia, sought an interim order as to sole use and occupation of the home at B Street, Suburb C.
The husband filed a Response to the wife’s Initiating Application on 14 November 2017 that, in summary, sought orders as follows:
a)that the properties at 1 B Street and 2 B Street, Suburb C be sold and the proceeds of sale after selling costs be divided as to 52.5 per cent to the husband and 47.5 per cent to the wife;
b)that the husband retain the Commonwealth Bank term deposit with a balance of $171,000.00;
c)that the wife retain her entitlement to the balance of funds loaned to the parties’ son in the sum of $61,000.00;
d)that the wife’s application for spousal maintenance be dismissed.
The wife relied upon the following documents:
a)her financial statement filed 12 September 2017;
b)her affidavits filed 12 September 2017 and 7 December 2017;
c)the affidavit of her son Mr D Hejiz filed 7 December 2017;
d)the affidavit of her daughter Ms E filed 7 December 2017.
The husband, for his part, relied upon the following documents:
a)his financial statement filed 14 November 2017;
b)his affidavit filed 14 November 2017;
c)his affidavit filed, with leave, on 11 December 2017.
Context
The wife is presently aged 56 years and the husband is presently aged 66 years.
The parties were married in Country F in 1980 and returned to Australia in October 1980.
The parties separated in January 2017 in circumstances where the wife asserts intimidating, aggressive and abusive behaviour on the part of the husband. As a consequence she asserts that a significant portion of her furniture and personal effects remain in the former matrimonial home.
There are three children of the marriage now aged 36, 31 and 25.
Subsequent to separation the wife had been residing with the child of the marriage Mr D, aged 31, in his apartment in Suburb G. In March 2017 the wife and her son moved to his property at Suburb H, NSW.
The wife’s evidence
The wife asserts that she is distressed living away from the matrimonial home and ashamed that she needs to rely upon her children.
The wife further asserts that she is fearful of returning to the home with the husband having said to her over many years “you can never leave me and if you leave, I will kill the children and punish you”.
The husband, asserts the wife, has alternate accommodation in the parties’ investment property at 2 B Street, Suburb C. The property has been vacant since early June 2017.
Neither property is encumbered by a mortgage.
The wife, otherwise, asserts a long history of family violence including physical violence and abuse and intimidation at the hands of the husband including a significant assault on her at the time of their daughter’s wedding in 2007. She, otherwise, asserts that the husband’s conduct was coercive and controlling.
The wife asserts a history of ill-health and ongoing psychological difficulties including anxiety, depression and post-traumatic stress arising from the circumstances of the parties’ relationship. The wife’s psychologist confirms the mother’s mental health difficulties.
On 9 July 2017 the wife was hospitalised in relation to septic arthritis in her right ankle and as a consequence is unable to return to employment in the foreseeable future.
The husband, she says, is presently self-employed in a business that he operates from the former matrimonial home.
The children Mr D and Ms E support the mother’s assertions as to the father’s physical and psychological abuse of his mother during the marriage.
Mr D, in March 2015, purchased a small one bedroom home unit in Suburb G borrowing funds against the property in Suburb H purchased by him in 2010. He says that the home unit property was unsuitable for the ongoing occupation by himself and his mother. To provide more comfortable accommodation for himself and his mother they moved from his home unit property to his Suburb H property in March 2017. This move to Suburb H involved significantly longer travel time to and from work and financial strain in meeting mortgage payments over the Suburb H property that was previously rented. It is his intention to return to his home unit property as soon as practicable.
To his observation the mother is distressed by her present circumstances.
Should the mother be able to return to reside in the former matrimonial home his younger brother Mr J would also occupy that property, presumably to provide some protection for the mother.
The husband’s evidence
The husband, for his part, denies the assertions by the wife and his children as to his conduct during the marriage.
The former matrimonial home at 1 B Street, Suburb C was purchased by the parties in 1991 using savings and mortgage borrowings. The property is unencumbered.
The investment property at 2 B Street, Suburb C was purchased by the parties in 2004 for $270,000.00 using the proceeds of sale of a previous investment property and a mortgage borrowing. This investment property was tenanted until early June 2017 providing rental income of about $550.00 per week. There is no evidence as to why it remains vacant.
The husband says that from 2007 to date he has been self-employed. He says that at present he gets a job “every now and then” and asserts a weekly income from that occupation of about $500.00 per week.
The husband says he suffers from back pain and that his days of work in his current occupation are limited.
The husband has, otherwise, plans to marry a woman in Country F in the Middle East and is unsure where he will finally settle, whether it be in Australia or overseas.
He says that the investment property at 2 B Street, Suburb C has no garage where he could store his tools. The photos of the subject properties in evidence: Exh “B” show an amount of tools and equipment stored by the husband in various places at the former matrimonial home. It is readily apparent that there would be some disruption should he be required to remove his tools and equipment to the investment property that he asserts would be insecure for their storage.
Sole Use and Occupation
Section 114 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1)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:
(a)an injunction for the personal protection of a party to the marriage;
(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;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Under s 114 of the Act the Court is required to make an order that “it considers proper”.
In Sieling v Sieling (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations 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 in asking for the expulsion from the home of the first party.
The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) quoted with approval a passage from P & P, an unreported decision of Lindenmayer J delivered 12 July 1982, as follows:
In my opinion, Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.
Thus relief should not depend merely on the balance of convenience or hardship. The authorities, however, demonstrate that the balance of convenience may decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other.
It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.
The Court is mindful of what was said by the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
In circumstances above the parties remain in a conflictual relationship where the wife makes significant complaint as to the husband’s conduct during the cohabitation. It was, she contends, intolerable for her to continue to live in the home, a circumstance supported by two of her adult children. Yet she has been absent from the home for nine months before making application for orders.
The husband has ties to the former matrimonial home by reason of his ongoing, yet part time employment. He accepts that he will not continue that occupation too far into the future and, indeed, seeks that the home be sold.
Otherwise, it was submitted on behalf of the wife that the husband will have significant cash funds after the parties’ jointly invested funds at bank are divided by agreement with both receiving about $85,000.00. Otherwise, the wife submits that she has no objection to the investment property being sold on an interim basis should the husband seek such an order.
As such the husband will be in funds and able to, if necessary, obtain storage facilities for his work material and equipment in the short term as he would need to do on sale of the home as sought by him.
The matrimonial asset pool is on the husband’s assertion about $2.5 million.
There is no issue that the wife (and for that matter the husband) could live in the vacant investment property, yet she asserts that it is not her preference and she never has.
On present indications the question of final property settlement will be determined within the next 12 months with the husband seeking that both properties be sold. The wife seeks to retain the former matrimonial home which would see the husband vacate same if she was successful.
If final orders are made as sought by the husband then he will vacate and remove his tools from the former matrimonial home within the next 12 months.
As the husband argues, the asserted impediment to his vacating the former matrimonial home at the present time is the exact circumstance he seeks to occur within 12 months under his own orders sought as to sale.
On balance in this matter the occupation question in the circumstances discussed above significantly favours the wife who has been excluded from the home by reason of her fear of the husband and who seeks to retain the property in the long term.
By reason of the above considerations it is proper that there be an order that the mother have sole use and occupation of the home.
Orders will be made accordingly.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2017.
Associate:
Date: 20 December 2017