Lukacs and Lukacs

[2019] FamCA 738

FAMILY COURT OF AUSTRALIA

LUKACS & LUKACS [2019] FamCA 738

FAMILY LAW – Interim – Sole occupation of former matrimonial home.

APPLICANT: Ms Lukacs

RESPONDENT: Mr Lukacs

FILE NUMBER: SYC 6545 of 2019

DATE DELIVERED: 15 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That pending further order the wife have exclusive use and occupation of the property situate at and known as J Street Suburb B NSW (“the  Suburb B Apartment”) to the exclusion of the husband.

2. That the husband be restrained by injunction from:

   (a)      entering the Suburb B Apartment;

   (b)entering the building in which the Suburb B Apartment is located being J Street Suburb B including but not limited to the facilities at C Business; and

   (c)      going within 200 meters of the Suburb B Apartment.

3. That all rental income from the property and carpark at L Street Suburb D in the state of NSW and all rental income, dividends or distributions received from the rental of and the profits made by the underlying properties owned by F Pty Ltd / K Pty Ltd, be paid into a joint account of the parties to be nominated by the wife and thereafter the rent be used to and be applied as follows:

   (a)in meeting the mortgage repayments and outgoings including strata levies, rates and all taxes referrable to the Suburb B Apartment;

   (b)in meeting the strata levies and outgoings referrable to the property at L Street, Suburb D;

   (c)the balance to be divided equally between the husband and the wife.

4. That in relation to the self-managed superannuation fund, G Superannuation Fund

   (a)All dividends or distributions received from the underlying investments continue to be deposited into the self-managed superannuation fund bank account with Westpac account number …;

   (b)That each of the parties be entitled to withdraw from the fund the minimum amount allowable under the SIS Act each year and such amount be withdrawn from the cash at bank and, if insufficient funds, then from the sale of underlying shares.

5. That unless otherwise agreed, the wife, within 14 days, pack the husband’s personal belongings remaining in the Suburb B property and advise the husband when they are ready for collection and that the husband, at a time convenient to the wife, arrange for his belongings to be collected from the Suburb B property by a commercial carrier.

   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 Lukacs & Lukacs 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 6545 of 2019

Ms Lukacs

Applicant

And

Mr Lukacs

Respondent

REASONS FOR JUDGMENT

1. Ms Lukacs (“the wife”) and Mr Lukacs (“the husband”) have recently separated after a marriage of some 28 years. The wife is aged 69 and the husband is 76.

2. The wife’s application is for sole occupation of their former home in Suburb B, and for orders which would have the effect of ensuring that their income is divided equally between them after their expenses of holding investment property have been paid.

3. The husband opposes both applications. He seeks sole occupation of the home and, if he is not permitted to live in the home, he wishes to rent in the same area and have the costs of his rental treated as a joint expense to be paid from their gross income before division. Subject to that application, he concedes that their income should be equally shared.

4. Dealing firstly with the occupation of the former matrimonial home, neither party contends that it is feasible that they continue to share the property. The parties separated when the husband took his long term female partner, Ms H on a holiday to Europe. While he was absent, the wife changed the locks and excluded him from the property.

5. Both approached the application on the basis that the applicable test was the balance of convenience.

6. The wife contends that the balance of convenience lies with her.

7. There is little factual dispute.

8. The wife deposed that in February 2019 she required and underwent a triple bypass operation followed by a period of recovery and rehabilitation. She deposed that her health has deteriorated and that her doctor has recommended that she take steps to reduce any stress in her living arrangements. She is presently seeing a counsellor. The wife has no other property in which she can live.

9. The husband deposed that the wife has accommodation available to her with members of her family including her three sisters and her daughter. However, there is no evidence that any of those persons have agreed to accommodate the wife. The husband does not suggest that the wife could live at the apartment in L Street, Suburb D which is owned by the parties through a corporate vehicle and is presently not tenanted.

10. The husband is currently living with Ms H in her apartment. The husband deposed that the apartment is small and that there is no room for his personal effects. However, the husband does not have to live with Ms H.  He can, if he chooses, live in the apartment at Suburb D.

11. The balance of convenience dictates that the wife should remain in occupation of the former matrimonial home.

12. The wife seeks orders that the husband remain away from the former matrimonial home.

13. The husband opposes the making of that order and seeks access to the gymnasium and tennis court in the apartment complex.

14. The wife deposed to a history of emotional abuse by the husband, including his maintaining his relationship with Ms H since 2015 and bringing her to their home for meals and social occasions.

15. These are interim proceedings and, where allegations are denied, it is not possible to resolve them. However, the wife makes other allegations of emotional abuse which I will not detail here. She deposed that the husband intimidates her. As a result of that abuse, she deposed that she is fearful of the husband. The police have been called on two occasions when the husband came to the premises. The wife deposed that, on another occasion, she panicked when she saw the husband’s car parked near the premises. The wife asked her solicitor to write to the husband and tell him that she did not agree to his coming to the premises.

16. The husband denies that the wife has any reason to be fearful. However, there is no evidence that to use a gymnasium and a tennis court elsewhere would cause him undue inconvenience or expense and the inconvenience to him of so doing is reasonable when balanced against the wife’s distress at the thought of his being in the vicinity of her home.

17. On behalf of the husband, it was submitted that, if he is excluded from the home, he wishes to rent premises in the same suburb. In those circumstances, it was submitted, the husband’s rent would be paid from joint income before distribution between the parties. There was no evidence of any need for the husband to live in Suburb B. There was no evidence of the likely cost of renting in Suburb B.

18. The Suburb D property is available. If he chooses not to live there, he has sufficient income to pay rent in an alternate location.

19. Orders will be made in accordance with the wife’s application.

20. The parties have not reached agreement about the husband collecting his personal effects from the former matrimonial home.

21. The husband wants to go to the home and pack up and remove his things. The wife does not want the husband to come to the home.

22. Orders will be made that, in the absence of agreement, the wife pack the husband’s personal belongings and that, upon his being notified that they are ready for collection, he arrange for collection by a commercial carrier.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 October 2019.

Associate:

Date: 15/10/2019