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

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

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

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.
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.
Resolution of this issue is not possible during the determination of their interim cross-applications for sole…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jyotisha & Jyotisha

Details

AGLC: Jyotisha & Jyotisha [2016] FamCA 738
Case: [2016] FamCA 738
Decision Date: 2 September 2016

CaseChat Overview and Summary

In this matter before Hogan J, the applicant husband sought orders against the respondent wife and a second respondent. The dispute concerned the occupation and use of a real property located at C Street, Suburb D, Queensland, and involved applications for restraining orders.

The court was required to determine whether to grant the wife sole use and occupancy of the C Street property, and whether to issue injunctions restraining the husband and the second respondent from approaching the property. The court also considered the dismissal of outstanding interim applications.

Hogan J reasoned that the significant animosity between the parties, evidenced by their affidavits and a specific event in May 2015, justified the orders sought. The court concluded that it was proper to make the orders and injunctions as set out in the commencement of the reasons for judgment.

The court ordered that the respondent wife have sole use and occupancy of the C Street property. The applicant husband was restrained from approaching within 50 metres of the property. The second respondent was ordered to vacate the property by 10.00 am on 2 October 2016, and thereafter was restrained from approaching within 50 metres of the property. All outstanding interim applications, save for costs, were dismissed.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

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

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.

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.

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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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