FAMILY COURT OF AUSTRALIA

Siang & Farina	[2015] FamCA 460	

FAMILY LAW – PROPERTY – Interim proceedings – where the wife seeks sole use and occupation of former matrimonial home – where husband seeks exclusive occupation of the home and that the wife be restrained from drawing down on the mortgage – where husband at cohabitation had extensive personal debt – where wife purchased the property in her sole name from her own resources– where wife left the home at separation due to the husband’s conduct – where consideration of general principles – orders made for the wife to have exclusive occupation of the home and the husband be restrained by injunction from approaching or entering upon the property.	

Family Law Act 1975 (Cth) s 114, 114AA	

Fedele & Fedele [1986] FamCA 14; (1986) 10 Fam LR 1069; (1986) FLC 91-744
In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90-896
In the Marriage of K & P Davis [1976] HCA 39; (1976) 11 ALR 445; 1 Fam LR 11,522; FLC 90-062
In the Marriage of K and P Davis (1982) 8 Fam LR 975
Marvel & Marvel [2010] FamCAFC 101
Plowman v Plowman (1970) 16 FLR 447	

APPLICANT:	Ms Siang	

RESPONDENT:	Mr Farina	

FILE NUMBER:	PAC	5556		of	2014	

DATE DELIVERED:	19 June 2015	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Foster J	

HEARING DATE:	18 May 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Battley	

SOLICITOR FOR THE APPLICANT:	Proctor Phair Lawyers	

SOLICiTOR FOR THE RESPONDENT:	Michael Vassili Barristers & Solicitors	

Orders
Pending further order:
(1)	That by no later than 5:00pm on 3 July 2015 the respondent husband vacate the home at B Street, Suburb C.
(2)	That the husband be restrained from removing any items of furniture and contents from the home except with the consent in writing of the wife save for his clothing and personal effects and books and records relating to his business sufficient to permit the ongoing conduct of same and his business equipment, tools and stock presently stored at the home.
(3)	That as and from 5:00pm on 3 July 2015 the wife have to the exclusion of the husband sole use and occupation of the home at B Street, Suburb C.
(4)	That as and from 5:00pm on 3 July 2015 the husband be restrained by injunction from approaching or entering upon the property at B Street, Suburb C except with the written consent of the wife or pursuant to further court order.
(5)	That the previous order is an injunction, inter alia, for the personal protection of the wife to which a power of arrest without warrant attaches by reason of section 114AA of the Family Law Act 1975. 
(6)	Liberty to apply on short notice as to implementation or enforcement of these orders.
(7)	That otherwise all interim applications be dismissed.
(8)	That the wife file and serve any submissions as to costs of this application within one month and husband any submissions in response within a further 14 days.
By Consent and pending further order: 
(9)	That the wife be restrained by injunction from drawing down on the mortgage secured on the said property at B Street, Suburb C with Westpac Bank and from selling, further mortgaging or encumbering the property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Siang & Farina 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 5556  of 2014

Ms Siang 	
Applicant

And

Mr Farina 	
Respondent

REASONS FOR JUDGMENT
1.	The discrete issue for determination in this matter arises from the application in a case filed by the wife of 25 March 2015. In that application the wife in summary seeks the following orders:
a)	That the husband vacate the property at B Street, Suburb C within 7 days;
b)	That upon vacating the husband not remove or damage any of the wife’s property and keep the property in good order subject to its present condition;
c)	A declaration that the wife can occupy the property to the exclusion of the husband;
d)	That the husband may re-enter the property for the purposes of removing personal items only on giving notice to the wife through her legal representatives the time of such access to be agreed and be in the presence of a third party;
e)	That the husband pay to the wife $14,000 being an occupation fee for the period from 3 November 2014 to 16 March 2015 at $700 per week and thereafter to the date of vacating at the rate of $100 per day;
f)	Costs.
2.	The husband for his part in his application in a case filed on 22 April 2015 seeks relevantly orders to the following effect:
a)	That pending further order the wife be restrained by injunction from selling, mortgaging, assigning or further encumbering the property except with the written consent of the husband or by order of the court;
b)	That pending further order the wife be restrained by injunction from drawing down on the mortgage secured on the said property with Westpac Bank or otherwise generally increasing the indebtedness of the parties;
c)	That the husband have exclusive occupancy of the property;
d)	That the husband continue to make a minimum payments on the mortgage secured by the property;
e)	Costs.
3.	The primary proceedings between the parties relate to property adjustment with the husband filing an application commencing proceedings on 18 November 2014. In that application he sought a sale of the property at B Street, Suburb C and that the net proceeds of sale be divided equally between he and the wife and that he be declared solely entitled to his business.
4.	The wife in her response to the husband’s initiating application filed on 27 March 2015 sought orders as to property in summary:
a)	That the husband pay to the wife $150,000 within 28 days;
b)	That in default of that payment the husband sell his property at Uralla, New South Wales and from the proceeds of sale the wife be paid the principal sum together with interest accrued;
c)	That otherwise the wife retain the property at B Street.
5.	The husband is aged 53. The wife is aged 42 and was born in Country J. In 1994 the wife moved to City K and then in 2007 she came to Sydney as a student to study English.
6.	The husband asserts that the parties met in about December 2009 at which time he was self-employed.
7.	The parties married in 2010 and subsequent to marriage resided in rented premises at Suburb D in Sydney, residing at those premises until early March 2011.
8.	The husband asserted that he contributed to half the rent and other food and household expenses.
9.	At the commencement of cohabitation the husband was the owner of a property at Uralla with equity of about $50,000 and three motor vehicles. He also had about $100,000 in credit card debts. The wife from her own funds paid $20,000 of the husband’s credit card debts with the husband regarding that payment as a “gift” to him.
10.	At cohabitation the wife had an interest in businesses in Country J and cash funds available to her.
11.	In early 2011 the wife purchased the subject property at B Street, Suburb C. The husband was unable to obtain finance it appears as a consequence of his poor credit rating and the purchase was facilitated by the wife.
12.	The purchase of the property was completed in March 2011. The property was purchased by the wife for $550,000 with mortgage finance from the Westpac Banking Corporation of about $440,000. The balance of purchase funds were provided from her own savings of about $130,000 and monies borrowed by her from friends.
13.	Since purchase the wife says she has been paying all mortgage payments and outgoings including council rates, water rates, electricity and insurance in respect to the home. Current mortgage payments are $2422 per month. The husband asserts that he was attending to payment of utility bills and household expenses from his income.
14.	The husband further asserts that during the period of cohabitation after the purchase of the home by the wife he undertook various works and improvements to the property
15.	The parties cohabited in the home until 3 November 2014 on which date the wife left the home allegedly as a consequence of the conduct of the husband.
16.	The wife’s son Yet Mr E had lived in the home from April 2013 when he arrived in Australia until 1 January 2014. The wife alleges that her son left the home as a consequence of the husband’s abusive and violent behaviour towards him. Mr E is presently living in shared home unit accommodation in Suburb F while he continues his studies.
17.	The wife asserts that during her short cohabitation with the husband he has been abusive and violent towards her including physical, sexual and mental abuse. For his part the husband asserts that in about October 2013 he was physically assaulted by the wife and that she was charged and that a provisional apprehended domestic violence order was made against the wife. The ultimate fate of those proceedings is not known
18.	The wife further asserts that without her knowledge the husband installed a CCTV camera in the home.
19.	The existence of the CCTV camera was discovered by Mr E on or about 2 November 2014. The wife says she was too afraid to speak to the husband about it but she attended upon the husband’s psychiatrist Dr G with the husband on 3 November 2014 at that time revealed her knowledge of the camera. The wife says that the husband on becoming aware of the wife’s knowledge of the CCTV camera became “very angry and out of control and yelled and I felt very scared”.
20.	The husband had been attending upon Dr G on a regular basis since August 2007. A report from Dr G dated 3 March 2014 states:
[Mr Farina] has a severe narcissistic personality disorder. That is he has an enduring pattern of behaviour that impacts significantly upon his emotional responses, his interpersonal functioning and his impulse control. This is an enduring pattern of behaviour that leads to a significant clinical distress and impairment in his social and occupational functioning. This pattern of behaviour dates back to his early adolescence.
As a result he often experiences explosive anger and rage. At times of interpersonal crisis he often will act impulsively rather than think through consequences. As a result of his personality disorder he has a significant sense of entitlement and lacks empathy. Thus if his own needs and opinions are not validated he becomes extremely angry and upset. 
21.	The wife spoke to Dr G revealing to him her feelings of being unsafe in her own home. Dr G said to her “if you don’t feel safe you should move out of the house”.
22.	On the evening of 3 November 2014 the wife left the home and reported the background circumstances to the police. The wife obtained assistance from the Women’s Legal Services Centre and an application for an apprehended domestic violence order was made to the Local Court at Suburb H. Ultimately on 11 May 2015 the application for an apprehended domestic violence orders was listed for hearing. Orders were made restraining the husband from assaulting, molesting, harassing, threatening or otherwise interfering with the wife or any person with whom she has a domestic relationship and from approaching or contacting the wife or her son by any means whatsoever except through legal representatives.
23.	The wife gave an undertaking to the Local Court at Suburb H that she would not approach or contact the husband except through his legal representative and that she would not return to her home until the exclusive occupancy issue was determined by this court.
24.	In the intervening period the wife has been provided for by various agencies and friends while she has remained out of her home. She has no permanent place or other suitable place where she may reside other than her home.
25.	As a consequence of her circumstances the wife has been receiving ongoing psychological intervention from clinical psychologist Dr I. 
26.	A report from the psychologist dated 14 May 2015 reveals that the mother was referred to the psychologist by her general practitioner on 7 November 2014 for assessment and treatment of psychological distress in relation to being a victim of domestic violence. The psychologist had seen the mother on eleven occasions since referral to the date of the report. The mother reported to the psychologist that after marriage there was constant conflict between the husband and wife in relation to money issues. The wife was responsible for all family expenses including mortgage payments and household bills as well as the husband’s credit card bills and other expenses. The wife complained that the husband failed to contribute financially. The wife further complained that the husband’s behaviour escalated as she became easily agitated. She was informed later that the husband had a history of mental health problems and she was unaware of this history prior to their relationship. The wife reported severe distress to her psychologist in being out of her own home. The wife complained of anxiety, irritable mood, sleeping problems, feelings of hopelessness and helplessness, loss of interest, fatigue, excessive crying, as well as hyper-arousal symptoms including shakiness, dizziness, sweating, hot sensation, mouth dryness, breathlessness and heart racing. The wife reported suicidal ideation as she felt frustrated with her present circumstances. The wife further reported limited social support in Australia due to the nature and working hours of her job in the sex industry. The psychologist expresses the opinion that the wife’s current psychological symptoms meet the criteria of major depressive disorder with comorbid anxiety.
27.	The husband says that his property at Uralla is in a poor condition and requires extensive work before it would be habitable on a permanent basis. He further says that he is a sole trader in the building industry that requires him to continue to reside in the Sydney area. He has significant equipment stored at the wife’s home and if he is required to vacate he will need to relocate that equipment.
28.	If he is permitted to remain in the property the husband asserts that he will maintain the mortgage payments, yet he asserts that his income is about $30,000 per annum that would barely be sufficient to meet the ongoing mortgage payments let alone his own living and business expenses.
29.	The injunctive power triggered by the present applications under section 114 of the Family Law Act 1975 permits the Court to make such order as it considers proper.
30.	It is trite law to say that it is a very serious matter to turn a husband or wife out of the matrimonial home.   
31.	However the present application involves two issues: firstly, should the property be occupied by one party only and secondly, which party should leave the property or which party have exclusive occupation of the property.
32.	Both parties in the present proceedings seek an order for exclusive occupation.  Such relief should not depend merely on the balance of convenience or hardship. (In the Marriage of K & P Davis [1976] HCA 39; (1976) 11 ALR 445; 1 Fam LR 11,522; FLC 90-062; In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90-896; In the Marriage of K and P Davis (1982) 8 Fam LR 975).
33.	The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other.  It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.
34.	In In the Marriage of K & P Davis (1976) (supra) the Full Court said that considerations included the means and needs of the parties, the needs of the children, hardship to either party or the children and conduct that may be sufficient to justify such an order.
35.	In Plowman v Plowman (1970) 16 FLR 447 Carmichael J referred to other criteria that may be relevant. However such asserted criteria or considerations should only be treated as guidelines (Fedele & Fedele [1986] FamCA 14; (1986) 10 Fam LR 1069; (1986) FLC 91-744).
36.	The Court is mindful of the observations of the Full Court in Marvel & Marvel [2010] FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
37.	The Court considers it proper to make the order sought by the wife in circumstances where:
a)	She purchased the property from her own funds and has a right at law to occupy same;
b)	Her son left the home allegedly by reason of the husband’s conduct;
c)	The wife left the home by reason of the husband’s conduct and her fear for her own safety as a consequence of the husband’s personality disorder;
d)	There is  clearly a circumstance that the parties cannot live under the one roof;
e)	The husband has made no contribution to the purchase of the property;
f)	The husband’s claim in respect to the property solely rests on his assertion as to improvements undertaken by him and such a claim gives him no right of occupation at law or in equity;
g)	The Court cannot be satisfied that the husband does not have the wherewithal relocate his residence. He has an income stream. He has a property he can sell;
h)	There are property proceedings on foot and even if the issue proceeded to trial a final hearing would be in about six months. 
38.	In all the circumstances it is proper to make orders that provide for the wife to have sole use and occupation of the home.
39.	Orders will be made accordingly.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 June 2015.

Associate:  

Date:  19 June 2015