Jyotisha & Jyotisha

[2016] FamCA 738

FAMILY COURT OF AUSTRALIA

JYOTISHA & JYOTISHA AND ANOR [2016] FamCA 738

FAMILY LAW – INTERIM – INJUNCTION – sole use and occupation of the former matrimonial home – competing applications – restraint from attending at the property.

APPLICANT: Mr Jyotisha

FIRST RESPONDENT: Ms Jyotisha

SECOND RESPONDENT: Ms B Jyotisha

FILE NUMBER: BRC 4329 of 2015

DATE DELIVERED: 2 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 31 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: Quinn & Scattini Lawyers

COUNSEL FOR THE RESPONDENT: Mr Andrew

SOLICITOR FOR THE RESPONDENT: Hooper Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Dr Sayers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent Wife have sole use and occupancy of the real property situated at C Street, Suburb D in the State of Queensland.

2. The Applicant Husband is hereby restrained, and an injunction issue restraining him, from approaching within 50 metres of the real property situated at C Street, Suburb D in the State of Queensland.

3. The Second Respondent vacate the real property situated at C Street, Suburb D in the State of Queensland by 10.00am on 2 October 2016.

4. From the earlier of the date on which she vacates the premises or 10.00am on 2 October 2016, the Second Respondent is hereby restrained, and an injunction issue restraining her, from approaching within 50 metres of the real property situated at C Street, Suburb D in the State of Queensland.

5. Save as is otherwise provided and save in relation to the issue of costs, all outstanding interim applications are otherwise dismissed.

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 Jyotisha & Jyotisha 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 BRISBANE

FILE NUMBER: BRC 4329 of 2015

Mr Jyotisha

Applicant

And

Ms Jyotisha

First Respondent

And

Ms B Jyotisha
Second Respondent

REASONS FOR JUDGMENT

1. The husband, a health professional, and the wife (who is not currently engaged in paid employment) married in 1988. They have one child, Ms B – now 26 years of age. She is the Second Respondent to the substantive property settlement proceedings between her parents.

2. The husband and wife are in dispute about when they separated. The husband asserts separation occurred in 2010 (after which the parties lived together under the one roof until February 2015). In contrast, the wife asserts separation occurred in January 2015.

3. Resolution of this issue is not possible during the determination of their interim cross-applications for sole use and occupancy of the former matrimonial home (acquired by the husband and wife in 2009), located at C Street, Suburb D in the State of Queensland.

4. It is sufficient to note, though, that the duration of the parties’ relationship is no less than 22 years (if the husband’s contention about separation is accepted) or about 27 years (if the wife’s contention about separation is accepted).

5. It is also sufficient to note that both the husband and wife accept that, in February 2015, the husband left the C Street premises and moved to live in rented premises in the same suburb. It appears uncontentious that he then maintained a second rental property, also in the same suburb, for his current partner (with whom he has an infant child[1]).

   [1]          Now about 10 or 11 months of age.

6. The Second Respondent, who is not a registered owner of the C Street property, returned to live in it in about December 2014 after completing her tertiary studies. She remains living in the downstairs part of that residence.

7. The wife occupies the upstairs part of the C Street property, as she has done since its 2009 acquisition.

8. A Protection Order[2] in respect of which the husband, his new partner and the Second Respondent are named as the aggrieved is in existence. Its terms at least require the wife to be of good behaviour.

   [2]           Made by  consent.

   Broad summary of competing proposals

9. The Husband proposes that the wife move from the C Street property to live in the property in which he and his partner currently live with their child.

10. This is the second occasion on which he has sought an order for sole use and occupation of the C Street property. That part of the interim orders sought by him in his Amended Initiating Application filed 6 July 2015 - by which he sought such order[3] - was dismissed by an Order made, by consent, on 7 July 2015.

    [3]          Clause 12.

11. Whilst the wife had earlier sought an ouster order in her proceedings for a Protection Order, the husband had not sought the same in his application for a Protection Order filed 16 March 2015. Further, the absence of an ouster order in the Protection Order proceedings (broadly described) arose when the circumstances were that, when those proceedings were before the relevant court, the husband was no longer living in the C Street property.

12. The wife proposes she have sole use and occupation of the property, that her daughter is restrained from living there and that both the husband and her daughter be restrained from approaching within 50 metres of the property.

13. The Second Respondent, who wants to continue living in the C Street property, will move from it if ordered to do so. At present, it seems that she frequently visits her father and relies on the kitchen facilities in his current accommodation because that part of the C Street property in which she lives does not have the same.

14. The Second Respondent’s position is that, if her mother receives the property as part of the finalisation of the property settlement proceedings between her parents, she will vacate the premises. However, if her father receives the property as part of the finalisation of the property settlement proceedings, she intends to continue to live there with him, his new partner and their child.

    Principles

15. It is clear the Court has power to make orders as sought by the parties, provided that such order is considered proper in the circumstances of the case.[4] It is also clear that authority[5] establishes that:

    [4]          s 114(1)(f) and  s 114(1)(b) Family Law Act (1975).

    [5]See, for example: Davis v Davis (1976) FLC 90-062; Page v Page (1981) FLC 91-025; Sieling v Sieling (1979) FLC 90-627; S & S (2002) FamCA 59.

    a)given the circumstances of this case, the husband bears the onus of establishing the basis on which the Court would be persuaded to exercise the discretionary injunctive power to order the wife to move out of the C Street property - so as to provide him with sole use and occupancy of the same; and

    b)an order for sole use and occupancy of a formerly shared premises, being an exercise of the discretionary injunctive power, should not be made lightly, particularly given that the Court will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim; and

    c)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; and

    d)in determining the manner in which it will exercise this discretionary power, relief should not depend merely on the balance of convenience or hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought.

    Discussion

    Sole use and occupation

16. The husband and wife each want to receive the C Street property as part of their respective entitlements to property in the property settlement proceedings. It is accepted that the value of the property of the parties is such that either of them has a legitimate claim – in the sense that it is not a fanciful claim – in respect of the property. It is not suggested by any party that the finalisation of the parties’ property settlement proceedings will require the sale of the C Street property to non-parties.

17. According to the husband’s May 2015 Financial Statement, his nett weekly income was about $11,000 (his gross weekly income of $35,500 less asserted weekly expenses of $24,045). According to his more recent Financial Statement, it is about $7,247.00.

18. Whatever the positon, given this evidence, it could not seriously be thought – nor, sensibly, was it submitted on his behalf - that he does not have the capacity to accommodate himself (and his new partner and their child – and the Second Respondent if that is their shared wish) in whatever accommodation, in whatever location, and to whatever standard he thinks appropriate. If he does not think that their current accommodation is suitable, he clearly has the capacity to reaccommodate them somewhere else.

19. In contrast, the wife is not engaged in remunerated work. Whilst she appears to have some hopes of establishing a business from the C Street premises, this is yet to eventuate. She is supported at present via her use of funds, totalling some $500,000.00 since February 2015, provided by the husband. These funds – some of which have been characterised as being in the nature of a partial property settlement - are also used by her to fund her legal representation in the proceedings in this Court.

20. Whatever may at one stage have been thought – on whatever basis – to have been the position of QBE (the insurer of the C Street property), it is now accepted that, save for an issue about the pontoon, the property is insured against damage. There is, therefore, nothing in the evidence to suggest (nor was it contended for on behalf of the husband) that the property will only have the benefit of effective insurance if he - and not the wife - occupies it. That is, there is no greater risk to the value of the property of the parties in so far as the C Street property is concerned (in terms of any claim, in the event of any insurable damage occasioned to it) if the wife continues to occupy it, as opposed to the husband moving to live in it.

21. The husband intends to enlist the Second Respondent, herself a health professional who has worked with and assisted him professionally, to assist in his practice. Given this, his position is that his current rental accommodation is inadequate to accommodate her as well as himself, his partner and their child. He also advances that it would be optimal for his practice to occur at the C Street property. Even if this is accepted, it seems that the likely duration of the husband’s professional needs is likely to be limited to about six to eight weeks.

22. On behalf of the husband, it was submitted that a further relevant matter was the cultural expectation that a daughter continue to live in the family home until marriage. He says that, as part of the arranged marriage process, the parents of the potential match meet with the other parents at the other parents’ residence to ascertain their standing in society, the interaction of the families and the interaction of the intended couple. He says it is important to visit the family home to see how they live. He asserts that he has identified three potential suitors and that his daughter’s prospects would be “enhanced considerably” by him being able to reside at the house. The Second Respondent also deposes to it being part of her culture that parents encourage their children to live at home until they are married.

23. Given the extent of the parties’ general disagreements, it is, perhaps, unsurprising to note that the wife does not accept that the husband is in the process of arranging a marriage for their daughter – she mentions that the Second Respondent spends time away from the C Street property with boyfriends and has boyfriends stay there.

24. This, then, is yet another matter about which the parties disagree. It is a further matter about which I am unable to reach any firm conclusion on an interim basis. All that can be concluded, I think, is that, given the husband’s income and his income earning capacity, (and, additionally, that of the Second Respondent), he will be able to act to accommodate his daughter within his household - wherever that may be located – in whatever manner he considers necessary to address this issue so as to benefit the Second Respondent.

25. The Second Respondent’s evidence makes it clear she supports her father and his position in the litigation between her parents. The extent to which the relationship between the Second Respondent and her mother has broken down can be seen by reference to the accepted fact that, in about May 2015, the Second Respondent, using her words: “took the liberty to get the locks to her (her mother’s) room opened.” From the wife’s perspective, her daughter took steps to have her locked room broken into with sufficient force to damage the door.

26. Whilst the Second Respondent and her mother are in dispute about what property was removed by the Second Respondent in the course of this event (the mother says her daughter removed documents or went through them but the Second Respondent says she only removed her own passport and imitation jewellery), the fact that she acted as described above is the matter of particular relevance.

27. Despite the fact that they both live in the C Street premises, it appears an accepted fact that there has been no contact between the wife and the Second Respondent since early 2015. In addition, they remain in dispute about certain financial transactions, including the nature of a transfer of a sum of $400,000.00 to the Second Respondent by the husband.

28. Any thought that the differences between them are likely to resolve in the near future also needs to take into account that, in an affidavit relied on for this application, the Second Respondent clearly expressed her views of, and attitude toward, her mother – for example, saying that (from her perspective at least) her mother:

    a)is very close minded sometimes; and

    b)seems to have some psychological issues; and

    c)is unpredictable, manipulative and confrontational; and

    d)“has contributed little since [she] can remember. She was fairly hostile towards [her] as a child, not giving [her] the liberty and freedom that [her] father provided. [Her] mother would constantly argue, and had a pessimistic view on many situations in life and was very restrictive on me as a child”; and

    e)has the obsession of hoarding – which would mean that “a house left to her abode would soon become a dark, lonely, unhygienic and haunted place to live in” -  and knows little of aesthetics and interior decoration.

29. Further, the Second Respondent has previously obtained, by consent, a protection order against her mother.

30. Given the Second Respondent’s age, her qualifications and the fact that she has previously utilised the same in working with her father and assisting him professionally, it could not be concluded other than that she is a person of independent financial means. Again, sensibly, no contrary submission was made on her behalf.

31. Nothing in the husband’s evidence persuades me that he is suffering under any sort of hardship in the relevant sense: he clearly has sufficient funds to enable him to rent (or buy) alternative accommodations, has actually done so since about February 2015 and has been able to obtain such accommodations in sufficient proximity to his work place. I am not persuaded that whatever benefits he would obtain from living in the C Street premises are not otherwise available to him via the rental (or acquisition) of a property with similar attributes.

32. I am not persuaded that there is likely to be any particular nett financial benefit to the parties of an order requiring the wife to vacate the C Street property so that the husband, his partner and child can take up residence there.

33. Whilst the husband asserts that living in the C Street property again would permit him to utilise the home office located there, the wife’s evidence is that she has returned documents to him from that office. It was also submitted on her behalf that he has the facilities elsewhere to be able to undertake whatever aspects of his practice he needs to do away from his rooms. This seems a logical submission given that the husband has maintained his practice since moving out from the C Street property in early 2015.

34. All of the parties make various allegations about the asserted conduct of the others. The manner in which this interim application is heard – in accordance with the Rules – makes resolution of the disparities in these assertions and counter-assertions impossible.

35. If, as the husband alleges, the wife has failed properly to maintain the C Street property, any established deficiency in her stewardship of the same which is shown to result in a diminution of its value can be addressed at trial. On either the case of the husband or the case of the wife, the value of the property of the parties is such as to enable any adjustment necessary to do justice and equity between them (having regard to the relevant s 79 considerations) to be made: for example, if, in fact, she has failed to meet outgoings for which she is ultimately found to be responsible, appropriate adjustments in his favour can be made to rectify such deficiencies.

36. I accept the submission made on behalf of the wife to the effect that the husband has failed to discharge the onus he bears of establishing that the proper exercise of the discretion mandates the making of an order that the wife be removed from the C Street property so as to enable him (and his partner and child) to take up occupation of it.

37. I also consider that, given the vast disparity in their respective incomes, the fact that the husband has lived elsewhere since February 2015 and that he has demonstrated a clear capacity and ability to reaccommodate himself, his partner and their child since then, I am easily persuaded that the balance of convenience favours the maintenance of the current arrangement – in place since February 2015 - that the wife continue to live in the C Street property.

    Restraining the husband from approaching the C Street property

38. It is accepted that the husband has brought his partner and child to the C Street property on occasions to spend time with the Second Respondent. It is also uncontentious that he has continued to attend at the property to use the pool, the putting green, to meditate and have piano lessons there. He does so, it seems, because there is no order in place to prevent him from coming and going as he wishes. His behaviours in this respect seem to me to make it more likely than not that, absent an order preventing him from doing so, he will act in the future as he has done in the past.

39. Given my conclusion in respect of the competing sole use and occupation applications, I am easily persuaded that it is proper to make an order restraining the husband from attending upon the C Street property.

    Restraining the Second Respondent from remaining in and then approaching the C Street property

40. As already mentioned, the relationship between the wife and the Second Respondent appears to have broken down completely. Given this, the likely impact of the current living arrangements on the wife, the fact of the Second Respondent’s professional qualifications and capacity to support herself financially and that it does not seem that there will be any (or any significant) financial detriment to the property of the parties if the Second Respondent lives elsewhere, I am, on the balance of convenience, persuaded that the order sought by the wife in relation to the Second Respondent vacating the C Street property is proper.

1. Predominantly because of the obvious animosity between them demonstrated by the contents of their respective affidavits and the fact of the May 2015 event referred to earlier, I reach the same conclusion in respect of the wife’s application for an order restraining the Second Respondent from approaching the C Street property after she vacates the same.

   Conclusion

2. For the reasons outlined above, I am persuaded that it is proper to make the orders and injunctions set out at the commencement of these Reasons for Judgment.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 September 2016.

Associate:

Date:  2 September 2016