Khalif and Khalif and Anor

[2018] FamCA 374

FAMILY COURT OF AUSTRALIA

KHALIF & KHALIF AND ANOR [2018] FamCA 374

FAMILY LAW – PROPERTY – INTERIM – Restraint

Family Law Act 1975 (Cth)

APPLICANT: Ms Khalif

RESPONDENT: Mr Khalif

INTERVENOR: Mr B Khalif

FILE NUMBER: SYC 6144 of 2016

DATE DELIVERED: 28 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Katsinas

SOLICITOR FOR THE APPLICANT: Jordan Djundja Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR 2^ND RESPONDENT: No appearance

Orders

(delivered 11.5.18)

1. I note that the 1^st and 2^nd respondents have not appeared today and this matter proceeds on an undefended basis.

2. The applicant wife and any party nominated by the applicant wife have unrestricted access to the property situated at C Street, Suburb D in the State of New South Wales to the exclusion of the 1^st and 2^nd respondents (as well as any employee or agents of the 1^st and 2^nd respondents) for the period 9am Saturday 14 April to 5pm Sunday 15 April 2018, to remove her belongings and the belongings of the children of the marriage, E, F and G, including but not limited to:

   2.1.Furniture

   2.2.Electrical and information technology appliances

   2.3.Crockery

   2.4.Cutlery

   2.5.Manchester

   2.6.Clothes

   2.7.Shoes

   2.8.Jewellery

   2.9.Sentimental items

   2.10.Artwork

   2.11.Toys

   2.12.Games

3. The 1^st and 2^nd respondents are restrained from removing, selling, dealing with, damaging or handling the belongings referred to in order 2.

4. It is my intention to place this matter into my docket. This matter is listed before me on 31 May 2018 at 9am for the purposes of making directions for a one day hearing in respect of the wife’s assertion that the property at C Street, Suburb D is beneficially owned by herself and the 1^st respondent.

5. The solicitors for the applicant wife are to serve a copy of these orders by electronic means on the 1^st and 2^nd respondents and the Independent Children's Lawyer.

6. I note the 1^st respondent is an undischarged bankrupt. A copy of these orders are to be served electronically by the wife’s solicitors on the husband’s trustee in bankruptcy.

7. On 31 May I will consider what is to happen in relation to outstanding parenting applications and I may consider bifurcating the claim that has been brought in reliance on accrued jurisdiction as a standalone hearing.

8. The wife is to forthwith and immediately issue subpoenas, such subpoenas to be returnable and inspected prior to 31 May so that on that date the wife can indicate whether or not she has been able to obtain all relevant bank documents relating to the mortgage that was taken out in 2009 in the approximate sum of $1,362,500 by the 2^nd respondent and all banking records relating to payments made by the 1^st respondent or any entity associated with the 1^st respondent to the 2^nd respondent or any entity relating to the 2^nd respondent between 2009 and 2018.

9. On 31 May I will also entertain any application that is filed by the wife in the next 7 days seeking an anti-suit injunction in relation to proceedings I have been told have been commenced by the 2^nd respondent against the applicant wife in the District Court claiming outstanding rent in relation to the property at C Street, Suburb D.

10. I note that I have been told there are eight contravention applications that have been commenced by the husband whom I am further told has not seen the children since the wife and the children were removed from the former matrimonial home by the 2^nd respondent and those applications are listed before the Senior Registrar on 4 June 2018. It is not appropriate I deal with those applications.

11. The wife’s costs of today be reserved.

12. I reserve my reasons for orders 2 and 3.

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 Khalif & Khalif and Anor 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 SYDNEY

FILE NUMBER: SYC 6144  of 2016

Ms Khalif

Applicant

And

Mr Khalif

Respondent

And

Mr B Khalif

2^nd Respondent

REASONS FOR JUDGMENT

1. On 11 April 2018, I made orders allowing the wife access to the property at C Street, Suburb D (the former matrimonial home) for the purposes of removing her belongings, and the belongings of the children, including specified items. Further, I made an order restraining the 1^st and 2^nd respondents from removing, selling, dealing with, damaging, or handling any of those items. I reserved my reasons for making those orders.

2. The wife filed evidence indicating that the application was served by its delivery to the offices of the 2^nd respondent’s lawyers and by email directly to the 2^nd respondent.

3. Neither the husband, nor the 2^nd respondent, who is the husband’s brother, appeared at the hearing. The husband is an undischarged bankrupt.

4. The wife had filed an affidavit on 5 April 2018 which was the evidence which she relied upon in respect of this application.

5. By way of background, in 2002 the parties were married by way of a religious ceremony and in early 2003 they celebrated their wedding and commenced cohabitation.

6. The husband and wife had three children, born in 2006, 2008 and 2011.

7. The property at C Street, Suburb D was acquired in 2009 in the name of the 2^nd respondent.

8. Between 2009 and 4 March 2018, the wife and the children lived at the former matrimonial home.

9. In April 2016, the husband and wife separated but remained living under the same roof in the former matrimonial home.

10. In June 2016, the husband was restrained from residing in the property as a result of an Apprehended Domestic Violence Order.

11. In September 2016, the 2^nd respondent commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking an order terminating the wife’s occupation of the property. In September 2016, the wife commenced anti-suit proceedings in the Federal Circuit Court.

12. In December 2016, NCAT granted the 2^nd respondent possession of the former matrimonial home.

13. In May 2017, the wife successfully appealed that decision and, in August 2017, the 2^nd respondent withdrew his proceedings in NCAT.

14. In August 2017, the application for an anti-suit injunction was dismissed on the basis that it was no longer necessary and the wife received a costs order in her favour of $2,000.

15. In December 2017, the wife made an application for exclusive occupancy of the former matrimonial home. On 15 December 2017, that application was finalised on an undertaking given by the 2^nd respondent which Judge Harper noted in the following terms:

    A. The second respondent has proffered an undertaking to the applicant that he will take no step to exclude the applicant from the occupation of [C Street, Suburb D], such undertaking having been made up to 12 March 2018.

16. At 11 pm on 20 February 2018, the 2^nd respondent’s solicitors sent a letter to the wife’s solicitors implying that the 2^nd respondent no longer considered himself bound by the undertaking because the wife had not complied with directions in relation to filing affidavits.

17. On 26 February 2018, the 2^nd respondent informed the wife that he had changed the locks on the former matrimonial home. She said a large number of intimidating security guards arrived at the property. The wife, however, did not leave the property with the children at that point.

18. On 27 February 2018, the 2^nd respondent organised trades people onto the property to carry out works including, but not limited to, installing security cameras inside the lounge room and at the front door, dismantling the bathrooms, ripping up the carpet and dismantling cupboards.

19. On 4 March 2018, after the wife and the children had returned from soccer, they were excluded from the property by security guards hired by the 2^nd respondent who said to her words to the effect, “This is a construction site… you must leave the property”. The wife said that at that time she and the children collected as many belongings and personal items they could carry and left the property.

20. On its face, the 2^nd respondent, through his agents, was in breach of the undertaking given to Judge Harper on 15 December 2017, but I have not had the benefit of hearing from the 2^nd respondent about that issue.

21. At the time of the hearing the children and the wife were residing at a friend’s property.

22. On 16 March 2018, the 2^nd respondent served on the wife a statement of claim filed in the District Court suing her for an amount of approximately $120,000 for unpaid rent.

23. When the matter was before the Federal Circuit Court on 12 March 2018, the court noted an undertaking by the 2^nd respondent that he would not sell or otherwise encumber the former matrimonial home and that he would provide access to the wife to the former matrimonial home for the collection of belongings and personal effects.

24. The wife attempted through her lawyers on 22 March 2018 to make arrangements to collect her belongings and personal effects but received a response from the 2^nd respondent’s solicitors which placed significant conditions upon her attendance at the property. The wife viewed those conditions as a continuation of harassment that she perceived had been perpetrated upon her by the 2^nd respondent. The conditions included that the wife was the only person permitted to enter the property; she had to provide identification; and that she needed to be in full “PPE attire” (on the assertion that the former matrimonial home was now a construction/renovation site).

25. The wife is of the opinion that the house is not a construction site as there are no structural works that have been carried out. The wife requested documentation from the 2^nd respondent relating to the assertion that the former matrimonial home is now a construction site. That request was refused.

26. The wife’s evidence was that intimidating security guards still attend the property and that the 2^nd respondent still insisted on her wearing construction site attire if she was to enter the property.

27. On 3 April 2018, the wife received a text message from the 2^nd respondent telling her that he had removed all her personal items and put them in the driveway outside the fencing of the property, and that she had until 5pm that day to collect them, otherwise the 2^nd respondent intended to throw them away. He warned her that if she attempted to cross the temporary fencing of the property he would have the wife charged with trespassing.

28. On 3 April 2018, the wife arranged for a fellow work colleague to collect the items that had been left at the front of the property. The wife sets out in her affidavit what they were.

29. The wife says there were no children’s belongings, furniture, toys, clothing, photographs or any other belongings included. The wife said she wanted all the children’s belongings to be collected including their beds and other furniture. She also wished to attend the property to collect all her furniture, electrical appliances, crockery, cutlery, manchester, children’s belongings, jewellery, sentimental items, artworks, toys, games and the remainder of her clothing.

30. She said that she drove past the home on 4 April 2018 and observed a large removalist truck opposite the front of the house.

31. The wife has more than established a basis for the orders which she seeks and it was for these reasons I made the orders on 11 April 2018.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 May 2018.

Associate: 

Date:  28.5.2018