ZEGAR & ZEGAR

[2015] FamCA 132

FAMILY COURT OF AUSTRALIA

ZEGAR & ZEGAR [2015] FamCA 132

FAMILY LAW – PROPERTY – interim property issue of exclusive occupancy – where the wife seeks to have exclusive occupancy of the former matrimonial home for a period of one month – where the matter will be determined fully on the next occasion – where the husband opposes the order being made – where the wife has no other alternative accommodation available to her – where the wife contends that the husband is the perpetrator of domestic violence – where the husband owns several other properties – where the husband’s relatives live in the other properties – order for exclusive occupancy made on interim basis.

APPLICANT: Ms Zegar

RESPONDENT: Mr Zegar

FILE NUMBER: PAC 5715 of 2014

DATE DELIVERED: 16 February 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Mr Moutasallem

SOLICITOR FOR THE RESPONDENT: Self-represented litigant

Orders

1. The handwritten minute of order document shall become Court’s Exhibit “B” in today’s proceedings.

2. Orders are made in accordance with paragraphs 1 to 3 of Court’s Exhibit “B”, as follows:

   That without admission until 19 March 2015:

   (1)The husband is not to move into or seek to reside at B Street, Suburb C.

   (2)The wife have sole occupation of B Street, Suburb C until 19 March 2015.

   (3)That in the event the husband wishes to collect personal items from B Street, Suburb C he shall make arrangements with the solicitors for the wife in advance to attend on those premises and specify the items to be collected.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zegar & Zegar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5715 of 2014

Ms Zegar

Applicant

And

Mr Zegar

Respondent

REASONS FOR JUDGMENT

1. This is an application for the wife to remain effectively in sole occupancy of the premises in which she currently lives.

2. It arises in circumstances where the matter was listed to be heard today for an interim application but was adjourned on the application of the husband. It has now been listed for hearing in a one month’s time on 19 March 2015.

3. The wife seeks to remain in the premises for the period of one month only, and concedes that on the next occasion the issue of sole occupancy for the remainder of the proceedings is one of the matters that are to be determined at that hearing.  The husband opposes it the wife’s application to remain in sole occupancy of the home for this period.

4. The first basis upon which the wife makes the application is because it is her position that she was the victim of an incident of domestic violence perpetrated by the husband which resulted to her being taken to hospital.  It has been put on behalf of the husband that it would be unfair in circumstances where it is not disputed that a criminal charge and an application for AVO were dismissed following a hearing, for him to be in effect kept out of the home on the basis of that matter.

5. It is certainly not unheard of and indeed is quite common in proceedings in this court for a person to maintain and indeed for findings to be made that allegations of domestic violence are made out notwithstanding that they were dismissed in other proceedings. This is particularly so where in these proceedings the alleged victim has in effect control over the evidence, as opposed to matters where the police have control over a prosecution and matters can fail for all sorts of reasons.

6. In my view, it would be quite inappropriate if there is some prospect of a finding being made that the wife was the victim of a reasonably serious domestic violence incident to expect that she should continue to live in the house with the perpetrator, in the event that he were to be found to have committed that assault on the civil standard.

7. The second ground also relates to the domestic violence incident and it is not in dispute that as from 25 October 2014 that the husband was not permitted until very recently, when the AVO was dismissed, to reside at the same premises as the wife.

8. There is some issue in relation to the premises at the address which has been occupied by the husband, with suggestions that the property is due to be demolished and those sorts of matters. However, the husband in this matter did choose to live in a shed at those premises.  It has not been put to me nor would it be expected that under an AVO that he was positively required to live in a particular place rather that he was not permitted to reside where the alleged victim resided.  In those circumstances, bearing in mind that he chose to reside in a shed at those premises for a matter of months, it is not unreasonable for the Court to conclude that it is one of the properties available to him for the next month.

9. It is not disputed that the wife has no other place where she could live and there is also a 15 year old daughter. The reality is that, notwithstanding the dismissal of the criminal charges and the dismissal of the application for an ADVO, the wife still maintains that she was a victim of violence. As I indicated previously, it would be inappropriate, even if there is some prospect of that position having some success, that she should be required to reside with the perpetrator.

10. The fourth matter that is relied upon is that there is no dispute that the husband owns a number of premises.  It also seems that there is no dispute that other members of his family are residing in various premises available and owned by him.  There is no evidence either way as to whether there are in fact spare bedrooms or places where he could reside in those premises but he obviously has a reasonable relationship with other members of his family because they are permitted to live at premises owned by him.

11. In all of the circumstances, it seems that it is appropriate in my view for the wife to remain residing in the property. It is also appropriate that she reside there alone and with her daughter and not to be placed in an untenable situation where she is required to reside because she simply has nothing else available to her, with a person who she still maintains is a perpetrator of domestic violence, in circumstances where he has other premises available to him.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 February 2015.

Legal Associate:  Natasha Heathcote

Date:  4 March 2015.