Holden and Dunlop - [2016] FCCA 2536

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLDEN & DUNLOP

[2016] FCCA 2536

Catchwords:
FAMILY LAW – Application for sole occupation by the wife – wife is the primary carer of 3 foster children with special needs who have lived with the parties since they were around a week old – wife wishes to retain the matrimonial home in final property distribution – husband wishes to sell the matrimonial home – husband seeks that wife and children return to the home and that the parties and children can live separated under one roof – wife alleges husband’s conduct has been distressing, hostile and intimidating and it is not possible for herself and the children to move back in and live with the husband – husband asks Court to disregard the needs of the children in its consideration of the issues in determining the sole occupation application –application for sole occupation granted.

Legislation:

Family Law Act 1975, s.114

Cases cited:

Walker & Walker (1978) 3 All E.R 141

Davis & Davis (1976) FLC 90-062
Dees & Dees [2010] FMCAfam 682
Kimberley & Kimberley [2011] FamCA 406
Dean & Dean (1977) FLC 213

Applicant:

MS HOLDEN

Respondent:

MR DUNLOP

File Number:

LEC 432 of 2016

Judgment of:

Judge Willis

Hearing dates:

15 and 29 September 2016

Date of Last Submission:

29 September 2016

Delivered at:

Cairns

Delivered on:

29 September 2016

REPRESENTATION

Solicitors for the Applicant:

McVittie Legal

Solicitors for the Respondent:

Self-represented

ORDERS

That the Applicant be granted sole occupancy of the property situated at Property C (“the former matrimonial home”), to the exclusion of the Respondent. Sole occupation by the Applicant is to continue until the finalisation of the property application.
That upon the Applicant assuming sole occupancy, the Applicant is solely responsible for the payments of the mortgage, council and water rates and utilities with respect to the former matrimonial home.
That the Respondent forthwith do all acts and things to vacate the former matrimonial home and provide sole occupancy to the Applicant by no later than Monday 24 October 2016.
The matter is to be listed for mention on 15 December 2016 at 9:30 am in the Federal Circuit Court of Australia at Cairns. THE COURT NOTES the parties are attending a Financial Conference on 10 November 2016 at 11:00 am in Brisbane.
The Solicitor for the Mother and the Father are granted leave to appear by telephone at the next mention date provided confirmation is made with the Registry 1 business day prior to the mention, that a telephone appearance is requested.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

LEC 432 of 2016

MS HOLDEN

Applicant

And

MR DUNLOP

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Adjournment application of the husband

This matter has been listed today to hand down reasons for an application for sole occupation by the wife and opposed by…

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 Holden and Dunlop

Details

AGLC: Holden and Dunlop [2016] FCCA 2536
Case: [2016] FCCA 2536
Decision Date: 29 September 2016

CaseChat Overview and Summary

In the matter of Holden and Dunlop, heard by Judge Willis of the Federal Circuit Court of Australia, the applicant sought orders for sole occupancy of the former matrimonial home. The dispute concerned the immediate living arrangements for the parties pending the finalisation of their property application.

The court was required to determine whether to grant the applicant exclusive possession of the former matrimonial home and, consequently, the financial responsibilities associated with that property. The court also needed to establish a timeframe for the respondent to vacate the premises.

Judge Willis ordered that the applicant be granted sole occupancy of the former matrimonial home, excluding the respondent, until the property application was finalised. Upon assuming sole occupancy, the applicant was to be solely responsible for mortgage payments, council and water rates, and utilities. The respondent was ordered to vacate the property by 24 October 2016. The matter was listed for a mention on 15 December 2016, with the court noting the parties' attendance at a Financial Conference on 10 November 2016. Leave was granted for the solicitors for both parties to appear by telephone at the next mention date, subject to prior confirmation with the Registry.

Orders

Orders of the court

That the Applicant be granted sole occupancy of the property situated at Property C (“the former matrimonial home”), to the exclusion of the Respondent. Sole occupation by the Applicant is to continue until the finalisation of the property application.

That upon the Applicant assuming sole occupancy, the Applicant is solely responsible for the payments of the mortgage, council and water rates and utilities with respect to the former matrimonial home.

That the Respondent forthwith do all acts and things to vacate the former matrimonial home and provide sole occupancy to the Applicant by no later than Monday 24 October 2016.

The matter is to be listed for mention on 15 December 2016 at 9:30 am in the Federal Circuit Court of Australia at Cairns. THE COURT NOTES the parties are attending a Financial Conference on 10 November 2016 at 11:00 am in Brisbane.

The Solicitor for the Mother and the Father are granted leave to appear by telephone at the next mention date provided confirmation is made with the Registry 1 business day prior to the mention, that a telephone appearance is requested.

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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