Fearne and Fearne - [2011] FMCAfam 1432

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEARNE & FEARNE

[2011] FMCAfam 1432

FAMILY LAW – Interim application for sole occupancy of former family home – matters to be considered.

Family Law Act 1975, s.114(1)

O’Dea v O’Dea (1980) FLC 90-896
Scholte & Scholte (2002) FamCA 59
Davis v Davis (1976) FamCA 90-062
Page & Page (1981) FamCA 91025
Bassett v Bassett (1975) 1 AER 513
Sieling & Sieling (1979) FamCA 90,627

Applicant:

MR FEARNE

Respondent:

MS FEARNE

File Number:

ADC 3796 of 2011

Judgment of:

Brown FM

Hearing date:

20 October 2011

Date of Last Submission:

20 October 2011

Delivered at:

Adelaide

Delivered on:

20 October 2011

REPRESENTATION

Counsel for the Applicant:

Ms Becker

Solicitors for the Applicant:

Pederick Lawyers

Counsel for the Respondent:

Ms Benz

Solicitors for the Respondent:

Adey Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The wife do have the exclusive use and occupation of the former matrimonial home situated at Property K in the State of South Australia.
Pursuant to section 114(1) of the Family Law Act, the husband is restrained and an injunction issue restraining him from living at the said property.
Within 48 hours of the date of these orders the wife make arrangements in consultation with the husband to provide him with his clothing and gym equipment and any other essential items to provide him with his day to day needs.
The wife in consultation with the husband make all necessary arrangements to allow the husband to access the line of credit or any other financial resources available to the parties to allow the husband access to $10,000.00 which he is to utilize for alternate accommodation for himself.
The wife is to pay all outgoings including the mortgage payable on the former matrimonial home.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 17 February 2012 at 11:00am.

BY CONSENT THE COURT ORDERS THAT:

The children X born on (omitted) 2003 and Y born on (omitted) 2006 do live with the wife.
The said children do spend supervised periods of time with the husband as follows: -
(a)each Tuesday and each Thursday from the conclusion of school (or 3.30 p.m. if not a school day) until 6.30 p.m.;
(b)each Saturday from 3.30 p.m. until 6.30 p.m. commencing on 22^nd October 2011;
(c)at such other times as may be agreed between the parties in writing with the negotiations for each period to be limited to one text message sent by the husband to the wife requesting same not less than five (5) days prior to the proposed period and one text message sent by the wife to the husband as soon as is reasonably practicable but within twenty four (24) hours in response thereto.
The periods of time spent by the said children with the husband do be supervised at all times by at least one of the following: -

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 Fearne and Fearne

Details

AGLC: Fearne and Fearne [2011] FMCAfam 1432
Case: [2011] FMCAfam 1432
Decision Date

CaseChat Overview and Summary

This case concerns an urgent application made by Mr Fearne for sole occupancy of the former family home, Property K. Ms Fearne opposed the application. The Federal Magistrate, Brown FM, considered the application and the legal principles applicable to sole occupancy orders under section 114(1) of the Family Law Act 1975. The court found that it was not proper to make a sole occupancy order in this case. Instead, the court ordered that Ms Fearne have exclusive use and occupation of the former matrimonial home, provided that she allow Mr Fearne access to certain financial resources to enable him to secure alternate accommodation. The court also ordered supervised access for Mr Fearne to the children and made other orders concerning the care and welfare of the children. The court's decision was based on a consideration of the needs of all parties, particularly the children, and the practicalities of the situation. The court found that it would not be reasonable, sensible, or practicable for the parties to continue to live in the former matrimonial home together.

Orders