Lenova and Lenova (No 2)

[2009] FamCA 1031

FAMILY COURT OF AUSTRALIA

LENOVA & LENOVA (NO. 2) [2009] FamCA 1031

FAMILY LAW – INJUNCTIONS – Variation of existing injunctions – Hardship and balance of convenience considered

Family Law Act 1975 (Cth)

Stowe and Stowe (1981) FLC 91-027

APPLICANT: Ms Lenova

RESPONDENT: Mr Lenova

INTERVENOR: L Lenova & J Lenova

FILE NUMBER: MLC 5218 of 2009

DATE DELIVERED: 2 NOVEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 21 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BARTFELD QC

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR BROWN SC

SOLICITOR FOR THE RESPONDENT: NICHOLES FAMILY LAWYERS

COUNSEL FOR THE INTERVENOR: MR SPENDER

SOLICITOR FOR THE INTERVENOR: KENNEDY WISEWOULDS

Orders

1. The respective applications of the parties for variation of the orders of 20 July 2009 are otherwise dismissed

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5218  of 2009

MS LENOVA

Applicant

And

MR LENOVA

Respondent

REASONS FOR JUDGMENT

1. The husband and wife and two of their adult children conducted an agriculture business in a rural area of southern New South Wales.  The family home and the business were all run from one property. 

2. Upon the separation of the husband and the wife, the family members sided with the husband.  The adult sons are involved in the business as employees.

3. On 20 July 2009, by consent of the parties, I made injunctive orders relating to the use by each of the husband and the wife of the home and the business premises.  In effect, the parties themselves worked out what part of the property they would control.  The wife essentially had the use of the former matrimonial home and the husband the business to the exclusion of the wife.  There were ancillary orders precluding the wife having contact with business employees.

4. Mr Bartfeld QC for the husband described the July orders as having been drawn on the basis of a precedent from the “War of the Roses”.  Those accustomed to watching such movies will know how the destructive behaviour of the players ended in tragedy.  As I indicated to the parties, I likened the facts to the conduct of the Montagues and the Capulets in Shakespeare’s “Romeo and Juliet”.  Consistent with the “War of the Roses” theme, my concern is that this is a Shakespearean tragedy.

5. The husband maintains emphatically that the July orders have not worked and he now seeks exclusive occupancy of the whole property.  He points to the fact that the wife has not been living in the property and that she has an alternate property not far away.  Importantly, he points to the fact that she does not have to be involved in the business and has an income stream from it regardless of her presence. 

6. The husband’s underlying concern as expressed by his counsel was that the proximity of the wife by virtue of the July orders creates an environment of fear in which he is always concerned about police involvement.  There is some foundation for his concern about the police involvement but whether or not it is as a result of the wife’s behaviour or not, I am unable to say. 

7. The wife acknowledged the problem existed but simply sought to vary the orders to exclude the husband from having any access to her part of the property.

8. As will be seen from the facts, the dispute between the parties has spilled over into the local arena.

9. The wife also sought litigation funding orders but that was resolved between the parties and consent orders were made. 

10. The orders of 20 July 2009 set out the following:

    (a)      the husband was to have the sole conduct of the business;

    (b)the wife was restrained from approaching any employee, contractor or customer of the business or from attending at or remaining upon any premises owned or leased by the companies or engaging in conduct designed to or having the effect of, disrupting the business operations of the companies;

    (c)on an interim basis, the husband was to have the sole use and occupation of the office, pool area, garage, barbeque and courtyard areas save that the wife could go there when the husband and the company employees were not present; and

    (d)the wife was to have sole use and occupation of the home, garage and garden areas (set out in a diagram attached to the orders) save for Sundays between 11.00am and 1.00pm when the husband had liberty to enter the wife’s area and retrieve his personal items and effect and those of the children.

11. Various other injunctions were made but they are not relevant for the purposes of this determination.

12. The parties could not agree upon what the July orders meant.  In respect of the husband’s access to the former matrimonial home on Sundays, he thought the orders meant that he could use the premises for storage purposes and he could come and go on those Sundays as he pleased.  However, he expected the wife to be absent during his time there.

13. The wife thought that only the husband could come but not any of the children.  She packed up various things to be collected and then changed various locks which in turn, the husband (and presumably other members of the family who came with him) broke.

14. On a plain reading of the orders, the husband’s understanding was correct although there was certainly no injunction about the wife being absent.

15. Mr Bartfeld QC on behalf of the husband summarised the dilemma that because of intervention orders from the local courts, the husband had the Sword of Damacles hanging over his head.  He said that the parties were in such proximity, it was untenable because his client had to operate the business when the wife was in the house.  The husband asserted that the wife was goading him on and provoking difficulties.

16. So poor is the relationship between the parties that apart from state court injunctive proceedings on both sides of the state border there have been police prosecutions involving the children.  Those proceedings and orders have given rise to allegations of breaches of state court orders.  There were proceedings to prevent the wife from attending the wedding of one of the sons.  She said she was attending and the proceedings were taken out to stop her.

17. Mr Bartfeld on behalf of the husband said that it was clear that the wife could not control herself and that in turn led to the situation where the husband was exposed to the possibility of the police being called and the state courts being prevailed upon to sort out something that invariably emanated from the proximity of the parties.  That, he said was intolerable.

18. The husband also asserted that the wife had breached the injunctions about approaching employees. 

19. Mr Brown SC on behalf of the wife summarised her case on the basis that she was a very lone figure who had been sent to “Coventry” by her family.  He pointed to the fact that the husband had a lot more options than the wife in terms of accommodation and this was the home of the wife and she desired to keep it.  He said the husband brought this application because he was a “disappointed litigant” a reference to the fact that in July, the husband had not got what he wanted and was having another attempt.

20. Included in the proceedings was an application by the sons but for the purposes of the determination, the involvement of the sons was largely irrelevant.

21. Thus, the husband sought orders discharging the July orders and giving him sole use and occupation of the property to restrain the wife from attending.

22. The wife sought orders that the husband’s application be dismissed and that the orders of July be varied to remove his access to the home part on the Sundays. 

23. There is clearly a lot of emotion in this case but it is the facts in the respective affidavits of the parties to which I turn to assist in working out whether it is proper to make the orders sought by either party.  It may very well be that there are other facts but they were not presented.  I am certainly not in a position to determine contentious facts and propose not to endeavour to do so.  I propose to determine the matter on the papers.

24. On the morning of 21 October 2009 when the parties resolved the financial funding issue, I indicated in a preliminary view that I thought that the husband’s evidence was insufficient to justify making the orders he sought.  Over opposition from senior counsel for the wife, I permitted the husband to seek an adjournment to call further evidence if he so chose on the basis that there was a suggestion that the evidence was available.  On 28 October 2009 by letter, the husband through his solicitors said he would not be calling any further evidence and asked me to determine the matter on the basis of the evidence that I had been given.  For the record, I adjourned the proceedings because I was concerned about the ongoing dispute between the parties which will no doubt involve the police and state courts.

25. The husband’s evidence was that the wife was not living in the home.  He said she was living with a cousin three kilometres away although that situation changed after his application was served.  The cousins to whom the husband referred, filed affidavits on behalf of the wife.  Each of them denied that the wife lived with them “since late 2008”.  Ms D said that since the orders in July 2009, the wife had not stayed overnight at their home but to her knowledge, had lived in the former matrimonial home.  Mr C said the same.  The wife in an affidavit filed 15 October 2009 denied that she was not living in the former matrimonial home.

26. The evidence cannot be tested at this stage of the proceedings.  What I am faced with is an assertion from the husband, denied by the wife whose evidence is corroborated by her cousins.

27. The husband then said that subsequent to the July 2009 orders, the wife had repeatedly breached the orders.  In addition, he said that she had sought to be present during the time that he was entitled to access to the home despite insisting upon an intervention order for her own protection.  I repeat what I earlier said about the fact that the July orders made no reference to the absence of the wife although logic dictates that her conduct in being in the home during the Sunday hours would suggest an absence of fear.  Equally, it could be seen to be goading the husband.  That however, was not what the husband was asserting.  The husband referred to an incident on 23 August 2009 where he attended on the Sunday and heard two voices inside the home one of which he recognised as that of the wife.  He said that he then contacted his sons to bring over a video camera to film him to ensure that he did not act in an inappropriate way giving rise to accusations by her.  The sons did that and a confrontation occurred.  All of that seems to me to have been unnecessary from both parties points of view.  However, there is no specific application as an alternative which would enable me to exclude the wife on the Sundays.

28. In his affidavit filed 15 September 2009, the husband said that:

    (a)      the wife instructed a locksmith to put new locks on bedroom doors;

    (b)correspondence had been written by the wife’s lawyers indicating that she was going to restrict the husband’s Sunday access to the property for allowing the sons and daughter-in-law to attend the property;

    (c)on 29 July 2009 the wife drove her vehicle off the road and onto the shoulder in the proximity of the business premises narrowly missing the son who was there walking.

29. In respect of the allegations referred to immediately above, the wife responded by confirming that the locksmith was engaged but that gentleman declined to undertake the work and followed the instructions of the husband.

30. The wife set out in her affidavit her understanding of the July orders.  For reasons I have already outlined above, her reading (and perhaps understanding) was wrong.

31. In respect of the assertion about driving the car at the son, the wife denied the matter. 

32. The husband referred to the proceedings involving the local courts and the police.  I am not at all sure whether those courts and the police have concerns about the orders of this court.  If they are concerned about the personal safety of any of the parties, the orders of this Court made in July certainly do not preclude them from taking the necessary steps under state legislation.

33. The husband reported abusive behaviour of the wife but it related to her relationship with one of the sons and the court proceedings involving that child.  In my view, that has nothing to do with these proceedings notwithstanding the significant involvement of the sons in the business.  Such is the state of the relationship between the wife and the sons that she was barred from attending one of the sons’ wedding.  Her action in relation to another son resulted in police intervention which almost precluded that son from attending his brother’s wedding.  Hence my earlier reference to the Montagues and the Capulets.

34. The other evidence upon which the husband relied was the breach by the wife of the July orders in contacting business employees and entering the business premises.  The latter related to the delivery by the wife of an account for payment.  In relation to the former, two employees, Ms W and Mr A swore affidavits on behalf of the husband.  Both corroborated the husband’s version of the wife’s entry into the business premises when she should not have been there for the purposes of handing the husband documents.  However, the husband then referred to the fact that subsequent to the service upon the wife of his application, the wife reduced Ms W to tears by calling her outside of the office premises and saying words to the effect:

    Because of you doing your affidavit, next week I’m going to get kicked out of my house and I hope you sleep at night.

35. In addition to that, on 16 October 2009 the wife called Mr A wanting to see him and she then drove 100 kilometres to his work place to tell him similar things to what she had said to Ms W. 

36. The evidence of that behaviour towards Ms W and Mr A is certainly different from that which was earlier asserted by the husband about the wife’s entry into the business premises and certainly more serious than the sort of evidence detailed in the affidavits of Ms W and Mr A.  Mr Bartfeld said that the husband had chosen not to bring breach of court order proceedings because that was pointless but rather to fix the problem by making an order so that the wife would be excluded from the home and hence the proximity to the business.

37. There is also much to be said for Mr Brown’s assertion that the wife had been sent to Coventry but if the conduct towards the employees continues inconsistent with the orders of July, the wife very well may face a contravention application as well as an application to formally exclude her in the future.  For reasons to which I shall refer in a moment, I am not satisfied on the evidence that the proximity issue has anything to do with her behaviour towards the employees.  Whilst there clearly may be opportunity for her to come into contact with the employees, that could still arise wherever she lives as was evident by the fact that she drove 100 kilometres to see Mr A.  She could also meet Ms W anywhere away from the home. 

38. The power to grant injunction is, of course, a discretionary power.  The authorities have made clear in the past that it should not be exercised lightly.  (See Stowe and Stowe (1981) FLC 91-027).

39. It is important that orders not be made to impose restrictions other than is necessary to achieve the protection of the parties’ interests or their personal safety.

40. Courts should not lightly interfere with the rights of an owner of property on the basis of vague and potentially contentious evidence. 

41. Section 114(1) 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.

42. The two steps for the determination are therefore:

    (a)is there a proceeding as defined in s 4(e) of the definition of “matrimonial cause”; and

    (b)is it proper to make the orders relating to those proceedings.

43. Paragraph (e) in s 4 relates to proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship. These are proceedings which arise out of the relationship insofar as the parties both seek orders under s 79 of the Act to alter property interests. These proceedings relate to interim orders both for personal protection and the protection of assets including in this case, the business.

44. Section 114 provides that the injunction is a discretionary one to be made on the basis of what is proper with respect to the matters to which the proceedings relate.

45. The power is not only discretionary, it is also very wide.

46. The removal and conversely the refusal to remove, a party from a home will create hardship for someone if not both parties.  The test is the comparison of hardship for each party depending upon whether the order is made or not made.  Another way of examining the matter is to determine whether the Court should regard the situation as being such that it would not be reasonable or sensible or practicable to expect the parties to continue to live in the environment in which they are currently existing.

47. I am satisfied that there is the sufficient nexus to justify the exercise of the power but I am not satisfied that it would be proper in the circumstances to make the orders sought by either party.  The reason why I decline at this stage to make the orders is that there are so many peripheral things happening in the lives of the parties which are connected with behaviour rather than their proximity.

48. The onus of proving any application falls on the applicant for the orders.  The balance of probabilities is the standard of proof.  I could not be satisfied in this case that there is sufficient evidence to warrant excluding the wife from the home based on either her behaviour or her abandonment of the home.  I am satisfied that to make the order however would create a hardship for her because of her attachment to the property and her desire to be there.  I am not satisfied that in denying the husband the order, hardship will be created for him if he has to be more cautious about his confrontations with the wife. 

49. The same problem arises for the wife.  I am not satisfied that the husband has behaved improperly in respect of his access to the home nor that there is any uncontroversial evidence in relation to the issue of the invasion of her privacy.  I am not satisfied that any hardship would be created for the wife by refusing to make the order but I am satisfied having regard to the fact that the evidence seems clear that the husband intended to come and go in the property at designated hours on Sundays and to decline him that entitlement would create hardship.

1. In my view this is not a case where the balance of convenience test provides a simple answer.  However, evidence of consistent breaches of the order by either party would put beyond doubt that the existing orders are unworkable.  That may give rise to further litigation which would be unfortunate. 

2. The respective applications of the parties for variation of the orders of 20 July 2009 are otherwise dismissed.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  2 November 2009