BELCHER & GARDENER - [2019] FamCA 205

FAMILY COURT OF AUSTRALIA

BELCHER & GARDENER

[2019] FamCA 205

FAMILY LAW – PROPERTY – Sole use and occupation – husband sought sole use of a beach house – valuable asset pool – wife living in city home – children intending to use holiday home – children estranged from their father since their parents’ separation – children stating they will not use holiday home if their father is present – father financially able to rent alternative accommodation – father not wanting to do so – application refused.

Family Law Act 1975 (Cth) s 114

In the Marriage of Briers (1978) FLC 90‑483
In the Marriage of Davis (1976) 1 Fam LR 11,522
In the Marriage of Dean (1977) 2 Fam LR 11,691
In the Marriage of Fedele (1986) 10 Fam LR 1069
In the Marriage of Gillie (1978) 4 Fam LR 127
In the Marriage of Healy [1979] FLC 90‑706
In the Marriage of Jolly (1978) FLC 90‑458
In the Marriage of Rowe (1980) 6 Fam LR 435
In the Marriage of Stone (1976) 2 Fam LR 11,235
In the Marriage of Wolifson (1977) 3 Fam LR 11,627
Mullane v Mullane (1983) 158 CLR 436
Plowman v Plowman (1970) 16 FLR 447

APPLICANT:

Mr Belcher

RESPONDENT:

Ms Gardener

FILE NUMBER:

MLC

1705

2019

DATE DELIVERED:

5 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

3 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Bartfeld one of her Majesty’s counsel

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T J O North of senior counse

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

The husband’s ore tenus application made on 19 February 2019 for sole use and occupation of the property situate at B Street, C Town, between 3 April 2019 and 7 June 2019 is refused.
The further hearing of this proceeding is listed on 7 June 2019 at 10am.

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 Belcher & Gardener 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 MELBOURNE

FILE NUMBER: MLC 1705 of 2019

Mr Belcher

Applicant

And

Ms Gardener

Respondent

REASONS FOR JUDGMENT

introduction

The husband’s application in a case filed on 26 February 2019 came before me in the judicial duty list on 3 April 2019. After briefly hearing from the counsel about the most expeditious manner to proceed, counsel told me they favoured going forward in such manner that –
a)each party gave disclosure to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BELCHER & GARDENER

Details

AGLC: BELCHER & GARDENER [2019] FamCA 205
Case: [2019] FamCA 205
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of BELCHER & GARDENER, the husband sought an order for the sole use and occupation of a property located at B Street, C Town, for a specified period. The wife was the other party to the proceeding. The application was heard by Justice Wilson.

The primary legal issue before the court was whether to grant the husband's application for exclusive possession of the property. This required the court to consider the relevant principles governing such applications in the context of family law proceedings.

Justice Wilson refused the husband's application. While the specific reasons for refusal are not detailed in the provided text, the decision indicates that the court did not find sufficient grounds to grant the husband sole use and occupation of the property for the period requested. The proceeding was subsequently listed for a further hearing on 7 June 2019.

Orders

Orders of the court

The husband’s ore tenus application made on 19 February 2019 for sole use and occupation of the property situate at B Street, C Town, between 3 April 2019 and 7 June 2019 is refused.

The further hearing of this proceeding is listed on 7 June 2019 at 10am.

Note: The form of the order is subject to the entry of the order in the court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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