Falzon and Falzon

[2020] FCCA 2022

FEDERAL CIRCUIT COURT OF AUSTRALIA

FALZON & FALZON [2020] FCCA 2022

Catchwords:
FAMILY LAW – Property – parenting – where application for sole use and occupation of former family home – matter adjourned.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR FALZON

Respondent: MS FALZON

File Number: DNC 35 of 2020

Judgment of: Judge Young

Hearing date: 3 July 2020

Date of Last Submission: 3 July 2020

Delivered at: Darwin

Delivered on: 3 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal NT

Counsel for the Respondent: Ms Holtham

Solicitors for the Respondent: Story & Associates

ORDERS

UPON NOTING

That on the next occasions the parties are expected to provide evidence of the completion of the parenting course ‘For the Kids’ pursuant to orders made on 9 June 2020.

THE COURT ORDERS:

1. That the respondent mother file and serve an affidavit setting out in detail her history of drug  use and any offences for which she has been dealt with and details of any pending criminal charges within 14 days.

2. That the respondent mother file and serve a financial statement within 14 days.

3. That the application in case filed by the father on 1 July 2020 and response filed by the mother on 3 July 2020 be adjourned to 20 July 2020 at 10.00am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 35 of 2020

MR FALZON

Applicant

And

MS FALZON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent application brought by the father for sole use and occupation of the former matrimonial home.  The basis of the urgency is that, as I understood the father’s affidavit, was that the two children, X and Y who are 11 and eight, were in his care outside the former matrimonial home.  Indeed, his affidavit in support says:

   My employer provided accommodation for me to live in, which I moved into in late 2019 and the children and I have been living there since.  It is a hotel and not suitable for two children to grow up in. 

3. The impression I had was that the children were living the father full time and he, effectively, implies that he was forced out of the former matrimonial home by the mother’s conduct, violence and ties that to drug charges she is facing.  That impression was reinforced by the covering letter from the father’s legal practitioner which said, as follows:

   We represent the applicant, Mr Falzon, in this matter, who came to us in early 2020.  His partner, the respondent, had been taking drugs in mid-2019.  Consequently, when she was under the influence, she became violent and explosive.  For the physical and physiological welfare of his children and himself, he fled from his matrimonial home in Melbourne with his two children. 

4. I am not satisfied that that is, in any sense, accurate.  And indeed, on the mother appearing by counsel this morning, I was told, and this was reflected in an inexpertly drafted affidavit, that, in fact, the truth is that the children are spending four nights a week with the mother in the former matrimonial home and three nights with the father, Friday, Saturday, Sunday, as I understood. 

5. Ms Gray told me of this in oral submissions.  There is no mention of this whatsoever in any of the affidavit material filed by her client.  The reality according to the father is that X, the older boy, is spending four nights a week with the father, from Friday through to Tuesday morning and that Y is spending three nights, Friday through to Monday morning with the father.

6. I was entitled to be given detailed information about that, and I have not been. 

7. The two children, X and Y were interviewed by a family consultant on 14 May 2020.  They told the family consultant, apparently, or she was left with the impression that the children spend four nights with the mother and three nights with the father, usually, as a current arrangement.

8. Without making any finding about the matter, I do not think it is fair to anyone involved to do that, on an interim hearing, but I am most concerned that I was misled when listing this matter urgently.  I was certainly under an impression created by the father’s affidavit and the covering letter seeking urgent orders, that the situation was that the children were living solely with the father.  That is not the case.  They are living substantially or most of the time with the mother.

9. The mother also says, notwithstanding the fact that she is not paying the mortgage on the former matrimonial home, that that was pursuant to agreement with the father and in return, he would not pay child support.  And I note that he, in fact, does not pay any child support according to his financial statement filed earlier in the year.

10. All that being the case, I am not satisfied that there is, at this stage, a proper basis for a sole use and occupation order.  I am not satisfied that there is the urgency to the matter.  I am disposed to grant the adjournment sought by Ms Holtham.

11. I do not propose to make any orders today.  I mean, from your client’s point of view, Ms Gray, if he wants to regularise the financial arrangements, that is a very straightforward matter.  He seeks an assessment of child support and once he is assessed and starts paying child support, if the mother is not paying the mortgage, well, then, we start to deal with it from there.  But I, really, I see no basis making any orders other than an order for adjournment. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 23 July 2020