Mikele & Mikele

[2008] FamCA 651

FAMILY COURT OF AUSTRALIA

MIKELE & MIKELE [2008] FamCA 651

FAMILY LAW – INJUNCTIONS - Exclusion from matrimonial home – Personal Protection – Evidence – Relevance of Financial Circumstances

Family Law Act 1975 (Cth)

Davis v Davis (1983) FLC 91-319
Davis v Davis (1976) FLC 90-062
Page v Page (1981) FLC 91-025
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-727

APPLICANT: Ms Mikele

RESPONDENT: Mr Mikele

FILE NUMBER: MLC 4967 of 2008

DATE DELIVERED: 1 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 25 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HOWE

SOLICITOR FOR THE APPLICANT: OAKFAIR LAWYERS

COUNSEL FOR THE RESPONDENT: MR GRANT

SOLICITOR FOR THE RESPONDENT: CAMPBELL & SHAW

Orders

1. That the application in a case filed by the wife on 2 June 2008 and the response to that application filed by the husband on 23 June 2008 be dismissed.

2. That all outstanding proceedings be referred to the co-ordinating registrar for the purposes of being placed in a docket to await a first day less adversarial trial before the judge so allocated.

3. That the parties attend a conciliation conference with a registrar on a date to be fixed as soon as practicable.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4967  of 2008

MS MIKELE

Applicant

And

MR MIKELE

Respondent

REASONS FOR JUDGMENT

1. On 24 June 2008, I heard an application in the Duty List between Mr Mikele and Ms Mikele. 

2. For convenience sake only, I shall refer to the parties as husband and wife.

3. The wife sought orders that the husband be excluded from the family home.  She left the home in April with the two children of the marriage and since that time, has lived with her parents.  In addition, she sought injunctions for personal protection.

4. The background of the case is that the husband is a labourer who is aged 49 years.  The wife works in healthcare and is aged 46 years.

5. The parties were married in 1989. 

6. There are three children of the relationship, G who was born in March 1991 and who is therefore aged 17 years, N who was born in January 1993 and is therefore aged 15 years and F who was born in October 1994 and who is therefore aged 13 years.  All children are still at school.  All children live with the wife.  G is currently involved in his VCE year.

7. The parties seem to have separated in February 2005 under the one roof.  However their physical separation on a final basis occurred when the wife left the home on 17 April 2008.

8. There is a significant dispute between the parties over many facts. 

9. The dispute over the facts becomes critical in a case where as part of the general exercise of discretion, a court is asked to make orders that are proper in the circumstances.  I shall turn to the law below but where significant infringement on personal liberty is involved, untested evidence which is disputed has to be cautiously viewed.  More importantly, in circumstances where that evidence would not be admissible in normal court hearings or even if admissible, was so vague and unparticularised, the caution should be greater.

10. Having separated in April, the wife said that she was distraught to the extent that she was unable to give adequate instructions to her lawyers.  The parties had agreed to a meeting with the lawyers to try and resolve matters but the wife cancelled that for reasons which she explains in her affidavit as including her fear of the husband.  Instead of proceeding to that meeting, she proceeded to court.

11. On 2 June 2008, the wife filed her application seeking final orders.  Those orders included that in respect of the children, the parties have equal shared parental responsibility.  In almost a contradiction in terms, she then said that the husband’s time with the children was to be “reserved”.  She sought that the children otherwise live with her.  It may very well be that because of the ages of the children and their views, specific orders for time with their father ought not to be considered.  That is not an issue that was canvassed before me.

12. In her application, the wife seeks final orders that the husband transfer the home at O to her.  She otherwise sought undefined and imprecise orders. 

13. On 23 June 2008, the husband filed his responding material indicating that he wanted the O home to be sold and the proceeds divided.  It was not a matter canvassed with the parties as to whether the fact that the husband wants the home sold makes any difference to the ultimate outcome of the interim proceeding for exclusive occupancy.

14. In addition to filing the application for final orders, each party filed a financial statement.  Their financial positions, if true, would indicate that not only are their day to day positions modest but so is their asset position. 

15. The wife earns $330 per week which is supplemented by Centrelink benefits.  She is clearly living in modest circumstances financially.

16. The husband’s financial statement shows that he earns $750 gross per week.  From that, tax, insurance and school fees together with living expenses which were not particularised leaves very little left.  He is also in modest circumstances.

17. The wife has asserted in her affidavit that the husband does other work and picks up cash.  That is denied.  In his submissions, Mr Howe of counsel for the wife said that it was to be noted that the husband did not pay child support.  On the figures presented by the husband which were untested and again, if true, it would seem that he does not have a lot of room to pay anything more and if the wife was expecting him to leave the home and pay private rental accommodation, it does not take much calculation to see that there is a financial problem.  Both parties seem desirous of having their children in private schools at the rate of $290 per week.  I am not able to conclude much about the financial circumstances on a day to day basis of the parties other than that neither is in a strong position. 

18. Equally importantly, the asset position shows that apart from $630,000 or thereabouts in an unencumbered home, the parties have nominal assets.  The husband deposes to the fact that he has about $90,000 in bank accounts.  The wife did not refer in her material to the fact that the husband had that money and could use it without complaint by her nor has it been suggested that there be some interim distribution of those funds to assist her in any way.  The issue was just left unattended. 

19. Turning then to the current application, the wife filed an application seeking urgent and interim orders on 2 June 2008.  Parenting orders were not pressed.  However, she sought that she forthwith have the sole and exclusive use and occupation of the former matrimonial home plus an injunction restraining the husband from “assaulting, harassing, molesting or interfering with the wife”. 

20. In his response, the husband simply asked that that application be dismissed.

21. A plethora of affidavits was filed.  I required both parties to provide details of what evidence they were relying on. 

22. The wife relied specifically on an affidavit that she filed but in relation to the matters that were relevant, her counsel said that I was to rely on paragraphs 6 to 13, 18 to 30, 35 to 39, and 51.  She also relied on the wife’s financial statement but little turns on that for the reasons that I have already mentioned.

23. The wife also relied on an affidavit of her mother and a next door neighbour who corroborates to some extent an incident that occurred some years ago.

24. For his part, the husband relied on his affidavit and his financial statement.  For the same reasons to which I have just referred, the financial statement is of little assistance to me.

25. At the commencement of the hearing, the wife sought to rely upon an affidavit which she swore attached to which was a medical report apparently received by her or her solicitor in May 2008.  That course of action was objected to.  Whilst the report may have been provided, counsel for the husband said that he did not have it.  He opposed it on the basis that the affidavit should have been the appropriate way to present the evidence.  He also indicated however that even if it was admissible in some form, it did not relate in an expert or professional way to the matter that I had to determine. 

26. I refused to allow the evidence to be read on the basis that the solicitor had ample time in which to take the appropriate way to present it in addition to which, on what I was told by both counsel, there was no medical opinion as to the wife’s state of health relevant to these proceedings.

27. I shall turn to the facts that each party presented in a moment.  Before doing so, I turn to the law.  Each party said that the law to be relied upon was the decision in Davis v Davis (1983) FLC 91-319. There are other matters that require some consideration.

28. In Davis v Davis (1976) FLC 90-062, the Full Court said:

    The criteria for the exercise of the power under s 114(1) are simply that the Court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

29. In Page v Page (1981) FLC 91-025 the Full Court adopted with approval the English decision of Bassett v Bassett (1995) 1 All ER 513. In Bassett, Cumming-Bruce J said that the approach to exclusive occupancy should be strictly practical having regard to the realities of family life.  In other words, it was necessary to examine with the utmost care whether it was practicable for both husband and wife to live in the matrimonial home.  His Honour said that where there were children whom one party was looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents and that that factor ought to weigh at least as heavily in the scales as the personal protection of the parent seeking relief. 

30. In Page the Full Court said where there is an intolerable situation rendering it imperative for the parties to be separated, the approach set out in Bassett should be followed.  The Full Court went on to say:

    In many cases the need to provide a home for the children will be a decisive factor.

31. Page’s case was examined in Davis v Davis (1983) FLC 91-319. The Full court referred with approval to a statement by Lindenmayer J in Price and Price an unreported decision in 1982.  Lindnemayer J said of Page’s case:

    It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue to co-occupation of the house with the other party or that there has been some contact by the other party which justifies his exclusion from the home.  All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.

32. The comments of the Full Court have to be read cautiously having regard to the fact that they do not set down any specific principle. Those comments reinforce the obligation of a court under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make an order which is proper and more importantly, to exercise discretion judicially.

33. The Full Court in Sieling v Sieling (1979) FLC 90-727 also looked at s 114 and said that there had to be circumstances arising out of the marital relationship which made it necessary to restrain, on a temporary basis, the person from using their property rights to the detriment of another party.

34. In S & S [2002] FamCA 59 their Honours cautiously looked at how a trial judge had exercised his discretion in excluding the wife from a home. Their Honours said:

    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.

35. The Full Court in S & S agreed with the English Court of Appeal in G v J (Ouster order) [1993] 1 FLR 1008. In that case, the English Court of Appeal cited, with approval, a passage from Lloyd LJ in Burke v Burke (1987) 2 FLR 71 where his Lordship said that it was never to be forgotten that an “ouster order” was a very serious order to make. It was an order that should only be made in cases of “real necessity”.

36. As the Full Court in S & S pointed out there are no words of limitation on s 114 other than that the grant of the injunction must be proper. There must, as the Full Court said, be an appropriate factual base supporting such an order.

37. Their Honours endeavoured to give some guidelines bearing in mind the restrictions that they faced having to deal with a discretionary order made by the trial judge.  Their Honours indicated that they would not have made the order that the trial judge made.  They did not set out a principle but rather said:

    It would be unlikely that the mere existence of tension and argument in the home, short of unacceptable conduct or a clear detriment to the welfare of a child, would lead us to exclude an owner of the home from the lawful occupation of his or her own home.  This would be especially true if there was no immediate viable alternative accommodation available.

38. As I have said, that statement does not set down principle but it is a very significant guide to the exercise of the discretion leading to what is proper.

39. I turn then to the question of the evidence bearing in mind the cautionary words of the Full Court in S & S that there needs to be an appropriate factual base to support the granting of an order.

40. The wife’s affidavit set out that during the marriage, the husband had been both very temperamental and violent and exhibited severe mood swings.  She referred to the fact that on several occasions he had been physically violent towards her without any reason or provocation.  The husband denied the matters claiming not to be by nature, a violent person.  He however, then asserted that he was the person subject to constant verbal abuse from the wife particularly over the last four years.  Neither party provided any helpful information as to particulars to give strength to their respective arguments.  The evidence in respect of both of those accusations is inadmissible as being irrelevant.

41. The wife said that in 2000, the husband pulled her hair and dragged her outside where he assaulted her.  The husband’s response was simply to deny the accusation even occurred. 

42. The wife reverted to generalisations again saying “on other occasions” and “I have suffered injuries such as bruising to my legs and body”.  None of that evidence was before the Court in any substantive way. 

43. I am not in a position to determine these matters on the basis of the untested evidence.  For all of the cases that I have referred to, I do not propose to simply accept the bland and generalised statements which are denied.

44. The wife went on to say that in 2004, at a park, the husband arrived, swore at her and abused her in front of people she was with, grabbing a bottle of lemonade, pouring it over her head and then  hitting her with the empty bottle forcing she and the children to return to the matrimonial home.  The husband’s response was to say that he did not use abusive and obscene language nor did he force her or the children back to the house.  On this issue which is specifically particularised, the wife referred to an affidavit of Mr S which was filed on 23 June 2008.  Mr S deposed to the fact that he is a neighbour of the wife.  He said he could not remember the date but it was certainly some time in 2004 that he went to a park some 200 metres walking distance from his home.  He was there met by the wife and her children and about an hour after they had arrived, the husband attended.  He said the husband picked up a large bottle of lemonade from the picnic table and proceeded to empty the contents of the bottle over the wife’s head and then hit her.

45. It is suggested that I should be cautious with that evidence because the husband asserts that Mr S is in some form of relationship with the wife.  The husband referred to the fact that in a conversation with the wife she said that her mind and heart were elsewhere.  The husband gives evidence of some factual bases for his belief that the wife has entered into another relationship and he asserts that it is with Mr S.  Whether that is right or wrong, matters little.  The relationship between the husband and wife seems to have ended in February 2005.  Importantly for my purposes, the incident to which both parties and Mr S refer occurred in 2004 and that does not seem to me to have a substantial impact on the immediate urgent application that the wife seeks for temporary relief.

46. To some extent, I have come to that conclusion also by the fact that in 2004, the wife applied for an intervention order but then withdrew it.  That is not unusual.  However, the resumption of the relationship and the basis upon which that resumption occurred would tend to suggest that the parties were endeavouring to resolve their problems appropriately.  There was no suggestion by the wife of any duress.  What is clear on the evidence is that the wife’s hopes were forlorn. 

47. In the circumstances, the incident in October 2004 does not assist me in the determination of this particular application. 

48. The wife then refers to the husband physically assaulting the children with excessive force and in particular, the eldest child G.  She says in a number of paragraphs that that was what occurred.  Apart from one incident six years ago, the accusations are broad and general and unhelpful.  That is particularly so in circumstances where the husband denies they occurred.  I am not able to gain any insight into the truth of that allegation.

49. In November 2004, the intervention order proceedings occurred to which I have already referred and the parties were separated for three and a half months.  Again, the wife says that that all occurred as a result of physical abuse which the husband denies. 

50. The husband deposes to the fact that during the period of the interim order rather than as asserted by the wife that breached it, she attended the home on a number of occasions and made telephone calls to him.

51. It would not be appropriate or proper in my view to base an application for exclusive occupancy on that information.

52. Of some significance is the statement set out in paragraph 18 of the wife’s affidavit wherein she says:

    Since February 2005, the husband has not physically assaulted me again, but he has continued to verbally abuse me, emotionally bully me, belittle me and ridicule me in front of the children and in private.

53. This paragraph suffers from the broad generalisations to which I have earlier referred.  It is difficult to deal with it on the basis that the wife’s assertions are in paragraph 20:

    The husband is still continuing to verbally abuse me and calls me such names as “slut” and “whore”.

54. The wife said that the husband indicated to her on “numerous occasions” that she was a “useless mother and wife”.  She says she was concerned that these comments were often made in the presence of the children and that the children had been traumatised by witnessing the husband’s previous physical assaults and continual verbal abuses upon her.  There was no evidence in the affidavit as to how the children had behaved, reacted or were feeling as a result of these particular issues. 

55. The problem is compounded by the fact that the husband not only denied the allegations but then said that:

    It was the wife who continued to verbally and emotionally abuse, belittle and ridicule me in front of the children whenever they were at home.

1. Part of the wife’s assertion about unhappiness is the fact that she said the husband did not pay any accounts and that she was supporting herself and the children on her resources.  That factual statement is denied by the husband who said it was the wife who kept her income for her personal use and it was he who paid the household bills, food and children’s educational expenses.  I am not able to determine that issue even if it was relevant to the question of whether or not an order should be made of the type sought by the wife.

2. The wife says that on 16 April 2008, she asked the husband to leave.  She said that she had repeatedly asked him to leave since February 2005.  Not only does the husband deny that he was ever asked since 2005 to leave, he said the conversation on 16 April to which the wife referred did not occur.

3. The wife said that on 17 April 2008, she left the former matrimonial home with the children.  The husband agrees that she left but said that there was no warning.  The wife does not set out in her affidavit whether she told the husband in advance or the circumstances under which she left that day. 

4. There is some significance therefore in the wife filing an affidavit by her mother. 

5. The maternal grandmother is the wife’s mother.  She is 74 years of age.  It was to her home that the wife and children went and are currently living.

6. The maternal grandmother says that she and her husband have serious health problems.  She said that the house was a small three-bedroom brick veneer property.  She is sleeping on a mattress on the floor in the lounge room with N and the wife is sleeping in a small rear bedroom with G.  F sleeps in a small bedroom of her own and the maternal grandmother’s husband has the other bedroom.

7. What is striking is that there is no suggestion by the maternal grandmother that her son-in-law had behaved appalling as described by the wife.  There is no evidence by the maternal grandmother to say how the children reacted to having to live in the cramped conditions under which she survives.  There is no evidence to show that the children are pleading with their maternal grandmother to return home.  In my view, that is a significant indication that I should be cautious with the wife’s evidence.

8. The maternal grandmother goes on to support her daughter but then adds that all of this problem is creating extra stress and pressure for she and her husband.

9. In respect of the children, she makes the following observation:

   It is important for [G] to have his own study area because he is presently completing his VCE and is being disadvantaged with the present living arrangements.

10. It is to be noted that the maternal grandmother does not say anything about G’s views about his study problems. 

11. In respect of G’s VCE, the wife says:

    [G] wishes to become a carpenter and has been advised that he needs excellent results to obtain entry into a TAFE college.  I am concerned that if [G] fails his VCE or only receives average grades he will not be admitted into the course.

12. The husband’s response through his counsel was that G could come home.  That seems to me to be unrealistic.  Mr Howe for the wife said that for the husband to say that G was not affected by what was happening was ludicrous.  All of those submissions are basically unhelpful because there is no evidence as to how G is progressing and the complications of his studies.  The wife says that he is experiencing “difficulties” in studying at the home of her parents due to the noise and lack of privacy.  Commonsense dictates that if he is in that sort of environment, it would be difficult.  The alternatives were not canvassed nor was there any indication about the impact on G other than that he was “experiencing difficulties”.  Having regard to the serious nature of the applications as I have outlined in the authorities above, I am not prepared to draw inferences from broad brush statements like that.

13. The wife refers to the fact that the husband does not need to live in a three-bedroom home but that is an issue that needs to be cautiously considered having regard to all of the authorities about excluding someone from access to their property.  Mr Grant on behalf of the husband said that the wife could come home at any time she liked but having regard to the polarised positions of the parties, that would be untenable.  Whilst the wife submits that it was possible for the husband to find a rental house, unit or flat, she does not suggest what the cost of that would be nor, having regard to the fact that the husband is paying the private school fees, how he would do it.  Again, for reasons I mentioned earlier, there is no suggestion of the use of funds by either party for the purposes of alleviating their pressure.

14. Much of the evidence that the wife put before me in relation to financial matters was based upon what had occurred prior to 2005 or as to her belief.  That was generally unhelpful. 

15. Mr Howe on behalf of the wife made a number of pertinent observations which were helpful.  He said both parties agreed that the authority was still that of Davis v Davis.

16. Mr Howe said that I was entitled to look at the behaviour of the parties.  That obviously depends upon what view I have taken of the evidence.  Both parties agreed that the fact that the wife had moved out of the home in April was not a disqualifying factor. 

17. Mr Howe said that I had to look at the personal circumstances including the financial position.  He said the wife could not afford to rehouse herself and that therefore she was facing a hardship which the husband did not have to face.  He pointed to the fact that the husband was living alone but again, that then confronts the difficulty of what the husband would do having regard to his limited financial means.  Without the suggestion that the wife would cooperate in relation to a division of the proceeds of the cash in the bank, the wife’s position seemed to be that he had to use up his income for living purposes. 

18. Mr Grant on behalf of the husband pointed to the evidence and said it was a weak case.  It is not so much a weak case as the fact that the evidence does not support the argument the wife wants to put.  It may very well have been had she particularised the details and corroborated them in the ways that I have referred to above, this may have been a totally different story. 

19. The major difficulty as Mr Grant pointed out is that I am faced with a factual dispute about which I can make no findings. 

20. I accept the submission of Mr Grant that the financial circumstances of the husband did not assist the wife’s argument that he could simply move out. 

21. As each party agreed, this was ultimately a discretionary matter in which I had to be satisfied that to make an order under s 114 of the Act, the basis had to be present and the order had to be proper.

22. I am not satisfied in this case that the evidence suggests that there was unacceptable conduct.  I am not prepared to say in this case that there is a clear detrimental impact upon the welfare of the children by the wife not having an order that the husband be excluded from the home.  I am quite satisfied that there is no immediately alternative accommodation available to the husband having regard to his financial circumstances.

23. Taking into account the means and needs of the parties including the needs of the children, it would not be proper to make an order excluding the husband from the home. 

24. The wife’s application as I have set out above, also sought orders of a personal protection nature. 

25. Whilst family violence of any nature is to be abhorred, to bring on an application on an urgent basis for injunctions having regard to the fact that the parties are now separated and there has been no physical violence since 2005, would require me to be satisfied that it is proper to make an injunctive order in relation to the husband’s behaviour towards the wife.  On the evidence to which I have referred, in my view it does not reach the standard in which I could say on the balance of probabilities that it would be proper to make such an order. 

26. In the circumstances, the application of the wife is dismissed.

I certify that the preceding Eight One (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  1 July 2008