Irwin and Irwin (No. 2)

[2007] FamCA 1281

FAMILY COURT OF AUSTRALIA

IRWIN & IRWIN (NO. 2) [2007] FamCA 1281

FAMILY LAW – PROPERTY – Orders – Husband to vacate property

Family Law Act 1975 (Cth)

APPLICANT: Mrs Irwin

RESPONDENT: Mr Irwin

FILE NUMBER: MLC 10033 of 2007

DATE DELIVERED: 4 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C.M. Haag

SOLICITOR FOR THE APPLICANT: Rosetta Trificante

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders  

1. That the husband shall vacate the former matrimonial home at H, Victoria (“the property”) on or before 2.00pm 19 October 2007 and he shall remove his personal belongings and leave the premises in a neat and tidy condition on vacating the property.

2. That the wife shall have sole use and exclusive occupation of the property as and from 3.00pm on 19 October 2007 and until further order.

3. That until further order the husband by himself, his servants and agents shall be and is hereby restrained as follows:

   (a)From harassing, assaulting, threatening, intimidating or in any way contacting or interfering with the wife; and

   (b)From attending at or in the vicinity of the following residences:

   (i)     The T Property; and

   (ii)    The H Property.

4. That the husband shall file and serve any Response and supporting affidavit and Statement of Financial Circumstances not less than 14 days prior to the Conciliation Conference ordered herein.

5. That the wife shall file and serve any further documents on which she intends to rely, including a Financial Statement, not less than 14 days prior to the Conciliation Conference ordered herein.

6. That the husband and the wife shall attend a Conciliation Conference on 21 November 2007 at 11.00am.

7. That the wife’s solicitor shall forthwith arrange service of a copy of these orders upon the husband:

   (a)Personally at the H Property; and

   (b)By prepaid post to S (The husband’s parents’ postal address).

8. That the interim amended application of the wife filed 28 September 2007 shall be otherwise dismissed.

9. That all extant proceedings are adjourned to the date of the Conciliation Conference on 21 November 2007 at 11.00am.

10. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

11. That pursuant to s 65DA and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. That the husband is requested to seek legal advice and advised to attend court on the next date as it is important for him to tell the court his views on the orders sought by the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10033 of 2007

MRS IRWIN  

Applicant

And

MR IRWIN  

Respondent

REASONS FOR JUDGMENT

1. There are property and parenting proceedings on foot between the parties.  Today, the wife seeks an order for sole use of the former matrimonial home, an order that the husband vacate it, and that he leave it in a neat and tidy condition.  She also seeks an extension of certain personal restraining orders.  There is also a suggestion that I should attend to various procedural orders. 

2. The matter first came before Young J on 27 September 2007.  His Honour made orders on that day reserving the husband's time with the children, ordering that until further order the children live with the wife, and restraining the husband from harassing, assaulting, threatening, intimidating or in any way contacting or interfering with the wife or attending upon her parents' home where she and the children are currently residing.  His Honour gave leave for the wife to file an amended Form 2 application, which she has now done.

3. His Honour made it clear on the face of the orders that the husband was to attend court punctually at 10 am today.  He was also advised to obtain legal advice.  I am satisfied that the required documents were duly served on the husband.  I have an affidavit of service, a signed acknowledgment of service, and the wife's evidence given here in court today to the effect that she recognises the signature on the acknowledgment of service as signature of the husband, and that he contacted her yesterday and told her pretty clearly that he would not attend court today. 

4. I have had the husband called twice this morning, once during the call-over and once at about 20 past 10, and there has been no appearance.  Being satisfied of proper service, I am going to proceed with the merits of the wife’s application today on an undefended basis.  The wife relies on her Amended Application in the case filed 28 September 2007 and her two affidavits, one filed on 7 September 2007 and one filed on 28 September 2007. 

5. The parties have three children aged 13, 10 and four.  They separated in about April 2007.  At that time, the wife and the children remained in the home.  On 31 August this year the husband returned to the home and stayed.  A couple of days later, the wife, finding that that was an untenable situation, moved with the children to temporary accommodation in her parents' home. 

6. Within less than two weeks, according to the wife's affidavit material, the husband offered that she and the children could return to the home and that he would leave.  They did that on 17 September, but he did not leave.  On her account, he assaulted her on 24 September and she and the children then returned to her parents' home.  The wife describes a long history of violence in the relationship.

7. The wife's account is that although the husband is in the home, he is not paying or contributing anything whatsoever towards it. He is not contributing anything to the children, and the wife is trying to survive with the children, on Centrelink benefits.  She cannot continue to stay at her parents' home because it was only a temporary arrangement for them.  She certainly cannot afford to set up any other home for herself and the children.   

8. In light of all of those features, it seems that the only just result at this point is to enable the wife to house herself and the children, for whom she has the interim residence order, in the former matrimonial home. Any alternative is simply not feasible or practical.  It is apparent that the husband in the past has allowed that to occur. He has made offers for that to occur.  But he has reneged.  There now needs to be some clarity and certainty. 

9. It is important that these reasons should be transcribed, and retained on the court file.  I will make it obvious in a notation on the face of the orders that the husband should engage in these proceedings in future if he does want to be heard.  The court would prefer to hear both sides of any story, in order to make the best informed decisions. 

10. But in the meantime I am going to grant the orders as sought.  Ms Haag for the wife quite rightly proposed to add orders for the husband to file material.  I agree that a Conciliation Conference is a very good idea.  I agree the wife needs to file a Form 13.  Provisions for service on the husband must be included in the orders.  And I will allow some time for him to move out. 

11. There has to be a reasonable time for someone to arrange other accommodation.  There is nothing in the material that helps me a great deal to have any understanding or insight into what alternatives he might have.  I think two weeks would be appropriate.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate

Date:  4 October 2007