LENSKI & LENSKI

[2017] FamCA 309

FAMILY COURT OF AUSTRALIA

LENSKI & LENSKI [2017] FamCA 309

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the parties jointly seek an Application for expedition of the final hearing of the proceedings – Application granted.

FAMILY LAW – PROPERTY – Where the wife seeks sole use and occupancy of the matrimonial home – Where the parties remained living separated under the one roof – Where the parties own the property as tenants in common – Where both parties seek to receive the property as part of the final property settlement – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Davis & Davis (1976) FLC90-062
Page & Page (1981) FLC 91-025

APPLICANT: Ms Lenski

RESPONDENT: Mr Lenski

FILE NUMBER: BRC 10900 of 2016

DATE DELIVERED: 8 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLennan of Counsel

SOLICITOR FOR THE APPLICANT: Women's Legal Service

COUNSEL FOR THE RESPONDENT: Mr McGregor of Counsel

SOLICITOR FOR THE RESPONDENT: Gall Standfield & Smith

Orders

IT IS ORDERED THAT

1. The oral application for expedition of the final hearing of the proceedings is granted.

AND IT IS FURTHER ORDERED THAT

1. The matter is listed for final hearing for two (2) days before Hogan J commencing at 10.00 am on Monday, 11 December 2017, at the Family Court of Australia at Brisbane.

2. All parties attend the hearing in person.

AND IT IS FURTHER ORDERED THAT

1. The Applicant Wife’s interim application seeking sole use and occupancy of the property situated at B Street, Suburb C in the State of Queensland (being the relief sought in Clause 6 of the Amended Initiating Application filed on 23 November 2016) is dismissed. 

2. The Respondent’s costs of and incidental to the appearance today are reserved.

IT IS DIRECTED THAT

1. The matter will be listed for pre-trial mention before Hogan J on a date to be fixed.

2. For the purposes of the pre-trial mention referred to in Clause 6 above, the parties and legal representatives have leave to attend by telephone. 

3. Should any party wish to exercise this liberty, they are to provide their best contact telephone number to … to the attention of the case manager, no later than three (3) business days prior to the pre-trial hearing.

NOTATION

A.The Court today has informed the parties that they are at liberty to rely on affidavits previously filed in the proceedings to date at the trial of the matter, if they so wish.

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 Lenski & Lenski 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 10900 of 2016

Ms Lenski

Applicant

And

Mr Lenski

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Joint Application for Expedition

1. What I am going to do is give you both leave to join in (or, at least, adopt) the idea of a joint application for expedition of the trial.

2. Insofar as the matters set out in Rule 12.10A(2) are concerned (and the matters prescribed in Rule 12.10A(4) which prescribe to the phrase “relevant circumstance” particular meaning), I have taken into account the age of –  in particular – Mr McGregor’s client as a relevant factor.  There have certainly been assertions of violent, harassing or intimidating behaviour, I note, made by each of the parties against the other; I think I can safely infer from the fact of allegations having been made by both of them, that each is asserting that they have been affected in some way, and to some degree at least, by that asserted behaviour.

3. It is clear that there are issues of financial hardship that arise, particularly in relation, Ms McLennan, to your client.  Given the particular circumstances where the parties are living in the same residence, albeit separate and albeit that they have done so since their separation in February 2015, I am persuaded that an expedited trial would avoid, in this case, serious emotional trauma, probably to both of them. 

4. A combination of the nature of the case, the age of – in particular – the husband, the wife’s current living circumstances, persuade me that it is appropriate to make an order expediting the trial of the matter. 

5. I have taken into account the fact of the husband’s age because it seems to me that it is more likely than not that much of the evidence on his side of the case (as it were) could only realistically be given by him –  therefore, it is even more imperative that the matter be accorded finalisation by way of final hearing dates as soon as can practically occur. 

6. For those very short reasons delivered orally, I am persuaded that this is an appropriate matter for expedition. 

7. What I have in mind, then, is listing the matter for final hearing before me at some time in the week commencing on Monday, 11 December.  I will also reserve a day (or two, perhaps) after it in case the matter needs to go over.  I will not list this later hearing time specifically (because there might be costs consequences, although they may be waived) but Counsel should know my expectation is that, if the matter does not conclude in two days, I will sit on to conclude it.

8. So, what I have in mind is that, when the parties appear before Senior Registrar Spink on 20 June, further Directions can be made in relation to the preparation that is needed to get the matter ready for trial. 

9. Whilst there is reference to the allocation of a Conciliation Conference, that is a matter for the parties to raise with him.  In this way, though, between now and that appearance (on 20 June), both parties can think about the evidence they anticipate wanting to lead.

10. I will also make a notation on the order today, just for the assistance of the Senior Registrar, that I have no particular difficulty with the parties seeking to rely upon the affidavit material filed to date rather than requiring that they file a new trial affidavit which is likely to be, I suspect, an amalgamation or re-printing of that which they have already done.  So, in an attempt to minimise the cost to the parties, if the parties wish to do so, I do not have any difficulty with this.

Application for Sole Use and Occupation

1. I have today an Application by Ms Lenski seeking an order for sole use and occupation of residential premises situated at B Street, Suburb C.  Those premises are owned by both parties as tenants in common, the ownership being 70 per cent as to the Respondent to this Application (Mr Lenski) and 30 per cent as to Ms Lenski. 

2. It appears that both of the parties seek to receive the B Street property as part of the outcome each desires in the resolution of the property settlement proceedings that are on foot between them. 

3. The circumstances within which the Application falls to be determined can be stated relatively briefly for the purpose of this Application.

4. The Applicant, who was born in 1960 and who is currently 56 years of age, and the Respondent, who was born in 1930 and who is currently 86 years of age, both live at the B Street property.  They commenced their cohabitation in about mid-August 2004, married in 2006, and separated on or about 13 February 2015;  thus, their relationship encompasses about ten and a half years of cohabitation and a little over eight and a half years of married life. 

5. It is unnecessary to recount in any particular detail the evidence given by each of the parties as to the manner in which their relationship commenced.

6. It seems uncontentious that, for periods of time after they commenced their relationship, they lived separately – one in Europe, whilst the other was in Australia and vice versa. 

7. It is certainly the Respondent’s case that, in the six years since the B Street property was acquired in 2009, the Applicant has spent no more than about 26 months living in that property. 

8. When the parties separated in February 2015, they both continued to live at the B Street property, separated under the one roof.  They have continued to do that – aided, in one sense, by the making of a number of protection orders on both a final and temporary basis.

9. The existing final protection order was an order that was made by consent without admission. 

10. Both of the parties have made allegations against the other asserting that each is the victim of domestic violence perpetrated by the other.  A series of temporary protection orders have been made in the period since February 2015.  Those orders seem to me to have attempted to put in place a circumstance whereby the parties can, in some ways, manage to continue to live in the B Street property.

11. It seems that the effect, at present, of the existing terms of the existing protection orders (be they temporary or final) provide that the Applicant has the use of what is described as the ground floor living area, together with shared use of the kitchen and laundry in the B Street property, whilst the Respondent is permitted to use the stairway and door from the garage to the internal stairway (so that he can access the upper levels of the premises – where he resides) and has also shared use of the laundry and kitchen, together with use of the garage and workshop area. He is, however, by the terms of the existing protection order, prevented from accessing the ground floor living area. 

12. It is clear, immediately, that these circumstances could not, in any way, be thought by anyone to be anything remotely like suitable or appropriate living arrangements for both of the parties. 

13. The difficulty in this case is in attempting to balance the competing needs and interests of the parties. 

14. It is clear, as both Counsel clearly recognise in their helpful written submissions (prepared by each of them on behalf of their respective clients), that the Court has power to make the orders sought by the Applicant, provided that any order made is considered proper in the circumstances of the case.

15. It is also clear, by reference to authorities (such as Davis & Davis, Page & Page) that the Applicant bears the onus of establishing the basis on which the Court would be persuaded to exercise the discretionary injunctive power to order the Respondent to move out from the B Street property so as to provide her with sole use and occupancy of the same;  and that an order for sole use and occupancy of shared premises, being an exercise of discretionary injunctive power, is an order that should not be made lightly, particularly given the impact of such an order upon, and interference with, the rights of owners of the property.

16. Here, as I have said, each of the parties has a legal interest in the B Street property. 

17. Authority also establishes that it is necessary for the Court to be persuaded of the existence of circumstances which make it necessary to restrain (on a temporary basis in this case) a party – in this case the Respondent – from using or utilising his property rights. 

18. It is also clearly established by authority that, in determining the manner in which to exercise the discretionary power, relief should not depend merely upon a determination of the balance of convenience or hardship, but rather, the Court should have regard to the means and needs of the parties, the conduct of the parties, and should also attempt to balance the hardship to each party of making or refusing to make the order sought.

19. In this case, it is, I think, clearly established that the Applicant’s financial circumstances are significantly more limited than those of the Respondent.  It is clear he has available to him money at bank which could be utilised towards him obtaining alternative residential premises.  The fact that that is the case, though, is not solely determinative of whether it is proper to make an order in the circumstances, requiring that he leave the property in which, on his case, he has lived predominantly since its acquisition in 2009.

20. In addition, I take into account that, at his age, there is likely a significant impact upon him (in terms of hardship) of any order that would require him to vacate those premises.  Of course, I also take into account the impost upon the Applicant of circumstances continuing as they have done since the parties separated in February 2015. 

21. The difficulty, it seems to me, in determining the Application in the manner sought by the Applicant in this case, is that the interim nature of the proceedings makes it impossible to reach resolution in relation to those matters about which there is factual contest between the parties.

22. In this case, those matters include the assertions of behaviours by each of them toward the other which, if found to have occurred are capable of constituting acts of family violence as that term is defined in the Family Law Act 1975 (Cth).

23. It is clear that, in the time since their separation, the parties have been able, with the assistance (one might see it in that way) of various amended orders made in the Magistrates Court, to arrive at a living circumstance that, at least from the perspective of the Respondent, is one that is tolerable in one sense.

24. The matter will now come for final hearing before me in the second week of December of this year.  That is also a relevant factor in considering the Application currently before me – particularly given the circumstance that, since their separation in February 2015, the parties (albeit, no doubt, with significant impost on both of them) have managed to endure the reality of their current living circumstances. 

25. I am not persuaded, at this point in time, that the Applicant has discharged the onus of establishing that it is proper that I make an order requiring that the Respondent move out from the B Street property pending the determination of the final property proceedings between the parties.

26. The circumstances, I reiterate, are certainly far from ideal. 

27. Other possibilities, which were not part of the Applicant’s formal Application before me, have been raised by me with Counsel during the course of the hearing.  These included whether, if provided with funds to enable her to leave the premises, the Applicant would practically be in a position to do so.  Submissions made by Counsel who appeared on her behalf (albeit unsupported by evidence) were to the effect that, for reasons it is unnecessary to particularise beyond saying that they arise by virtue of her legal ownership of an interest in the B Street property and the impact of such ownership upon her ability to receive (or continue to receive) Centrelink benefits, such course is not practical for her.

28. Whilst it is a difficult decision and one that, in my view, is finely balanced – given, on one hand, the Applicant’s relative impecuniosity and on the other, the Respondent’s age and established living arrangements in the property – I have arrived at the decision that I am not persuaded that it is proper to make an order in the terms sought by the Applicant. 

29. As I have already said, additional orders will be made listing the matter for final hearing before me in the second week of December.  I note that the matter returns before Senior Registrar Spink for directions on 20 June 2017.

30. For these short reasons, delivered orally, I dismiss the application seeking an order for sole use and occupancy of the premises situated at B Street (that being the part set out in order 6 of the Amended Initiating Application filed 23 November 2016).

31. I will make an order reserving the respondent husband’s costs of and incidental to the appearance today.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2017.

Associate:     

Date:              8 May 2017