Mei and Yao & Anor

[2017] FamCA 942

FAMILY COURT OF AUSTRALIA

MEI & YAO AND ANOR [2017] FamCA 942

FAMILY LAW – PROPERTY – INTERIM – Where the wife sought exclusive occupation of the former matrimonial home – where the orders sought would compel the husband’s mother to vacate the property – regard to means and needs of parties – where wife has alternative accommodation – circumstances of the case – balance of convenience – application for exclusive occupancy dismissed – costs reserved.

Family Law Act 1975 (Cth) ss 90AF, 114

Jyotisha & Jyotishaand Anor [2016] FCA 738
S & S [2002] FamCA 59

APPLICANT: Ms Mei

FIRST RESPONDENT: Mr Yao

SECOND RESPONDENT:  Mr Zhou            

FILE NUMBER: SYC 2897 of 2017

DATE DELIVERED: 6 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Jarratt Webb & Barrett

COUNSEL FOR THE FIRST RESPONDENT: Mr Campton SC

SOLICITOR FOR THE FIRST 

RESPONDENT:

Johnston Vaughan Solicitors

COUNSEL FOR THE SECOND

 RESPONDENT:

Mr Stenhouse

SOLICITOR FOR THE SECOND

 RESPONDENT:

Du & Associates Lawyers

Orders

THE COURT ORDERS THAT:

1. Leave is granted to the parties to inspect the material produced on subpoena by the Department of Immigration and Border Protection.

2. Proposed orders 1,2,4,5,6 and 7 of the wife’s interim application filed 19 September 2017 are, without admission and without prejudice, withdrawn and dismissed.

3. The wife’s application for exclusive occupation of the property located at B Street, Suburb C NSW be dismissed.

AND THE COURT NOTES THAT:

A. The issue of the Second Respondent’s costs is reserved for determination at final hearing.

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 Mei & Yao 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 2897 of 2017

Ms Mei

Applicant

And

Mr Yao

First Respondent

And

Mr Zhou
Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the wife has made an application for exclusive occupancy of the property that she lived in with her husband and his parents at Suburb C prior to and also for a period subsequent to the parties’ separation (“the property”). The wife does not currently occupy the property in respect to which she seeks an order for exclusive occupation.

2. The background facts are that the wife moved into that property with the husband in approximately October 2014 and ceased to reside in that property in approximately October 2016. The husband had ceased to reside in that property when the parties separated in April or May 2016. It is accepted that, in the period immediately prior to the wife leaving the property in or about October 2016, that she had a difficult relationship with the husband’s mother, that is, the wife’s mother-in-law. This is corroborated by the fact that the police were called to the property on at least two occasions as a result of difficulties between them.

3. The wife contends that orders should be made pursuant to section 114 of the Family Law Act1975 (Cth) (“the Act”) as extended to a third party pursuant to section 90AF of the Act. The primary basis upon which the wife contends that the balance of convenience favours the order for her to be given exclusive occupation of the property is that she contends the Suburb C property has not been occupied by the husband’s mother. In support of that contention, the wife has tendered a report produced on subpoena by the Department of Immigration and Border Protection indicating that the husband’s mother left Australia in February 2017 and as at 27 October 2017, had not been recorded as having returned to Australia. It is conceded that the husband’s mother is now in Australia.

4. The wife also relies upon affidavits of neighbours who live in the vicinity of the Suburb C property who state that they have not seen the husband’s mother entering the home for some period of time.

5. In my view, the inference that the husband’s mother does not live in the Suburb C property is not reasonably open. This is because it is acknowledged that the husband’s father is in China and it is not unreasonable that the husband’s mother would want to spend some time in that country. Moreover, the fact that the husband’s mother left Australia in or about February 2017 does not prevent Australia remaining her place of habitual residence and, within Australia, the Suburb C property being her actual place of residence.

6. Documentation attached to the husband’s mother affidavit affirmed 3 November 2017 and filed 7 November 2017 confirms that correspondence relating to banking and utilities, as well as correspondence that would ordinarily be addressed to a person by public authorities, has been forwarded to the Suburb C property.

7. I am bound by a comprehensive analysis of this issue undertaken by the Full Court in S & S.[1] In that case, the Full Court (per Kay, Holden and Monteith JJ) after discussing several Australian and United Kingdom authorities, said:

   38. An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   "It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

   39. Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.

   40. There are no words of limitation in s 114 other than the grant of the injunction must be "proper". But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.[2] 

   [1][2002] FamCA 59.

   [2] Ibid at [38] – [40].

8. Accordingly, it is necessary to look carefully at the circumstances of this case. On the one hand, the wife suggests that she is in a position of financial hardship and on the other, the husband’s mother states that she would be dispossessed of her property in circumstances where she is aged 62 and is suffering ill health.

9. Balancing these considerations leads to the exercise referred to by Hogan J in Jyotisha & Jyotishaand Anor (2016) FamCA 738 at paragraph 15 where her Honour said that:

   In determining the manner in which a court will exercise its discretionary power [to make an order for one or other of the parties to have exclusive occupation of the former matrimonial home], the relief should depend not merely on the balance of convenience of hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought. 

10. In this matter, the conduct of the wife in leaving the property in October 2016 and obtaining alternative accommodation is a very significant factor. That is, the wife currently has her own independent accommodation separate and distinct from the Suburb C property. In fact, the wife returned to that property in or about March 2017 to retrieve personal items and did not, at that time, assert that it was appropriate for her to recommence living there.

11. The other relevant fact is that the husband and the husband’s mother assert that the mortgage on the Suburb C property is being paid by the husband’s mother. The wife contends that the mortgage is in fact being paid by the husband. For the purpose of these proceedings, it is sufficient to note that the mortgage is not being paid by the wife.

12. The wife indicated, however, that in the event that the Court made an order for her to have exclusive occupation of the property, she would take responsibility for paying the mortgage. She would do this, she stated, with the assistance of members of her family.

13. When asked why a similar arrangement could not be made in respect to a property which is located in Suburb D and which is in the wife’s name, the wife indicated that the Suburb D property is tenanted and she may have difficulty obtaining vacant possession of that property.

14. In circumstances where the wife is the applicant in these proceedings, it was incumbent upon the wife to present evidence regarding any such difficulty and such evidence has not been forthcoming.

15. Accordingly, in considering the balance of convenience, the wife has a property that is wholly in her name at Suburb D. The wife has stated that she has the capacity to obtain funding from her family to pay the mortgage on a property. In the absence of evidence to the contrary, there is no reason to assume that the wife would not have the capacity to obtain vacant possession of that property and to reside in that property. In those circumstances, on the evidence presented in these interim proceedings, I am satisfied that the wife has an appropriate accommodation alternative to the Suburb C property.

16. On the other hand, the order sought by the wife would actually compel the husband’s mother to vacate the property at Suburb C. The husband’s mother states that she retains her possessions in that property and that it is her place of habitual residence and she intends to reside there. The husband’s mother states that she would have difficulty moving to other accommodation because of her age and ill health.

17. Accordingly, evaluating the factors going to the balance of convenience as referred to by Hogan J in Jyotisha & Jyotishaand Anor,[3] I decline to grant the relief sought by the wife. In so doing, I note that the findings I have made in this case are clearly without prejudice to any other relief that the wife may seek by way of spousal maintenance or otherwise. 

    [3] (2016) FamCA 738.

18. The husband’s mother, as intervenor, has made an application for costs of these proceedings on the basis that the wife has been wholly unsuccessful. I note that, as a third party, the intervenor does not face the hurdle set out in section 117(1) of the Act, that is, the presumption that the Court orders that each party pay their own costs. However, in circumstances where the husband’s mother’s entitlement to an interest in the Suburb C property is an issue that is yet to be determined I will reserve the issue of costs for further consideration at final hearing.

19. For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 6 November 2017.

Associate:

Date:  23 November 2017