Irwin & Irwin

[2007] FamCA 1166

FAMILY COURT OF AUSTRALIA

IRWIN & IRWIN [2007] FamCA 1166

FAMILY LAW – CHILDREN – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs Irwin

RESPONDENT: Mr Irwin

FILE NUMBER: MLC 10033 of 2007

DATE DELIVERED: 27 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Traficante

SOLICITOR FOR THE APPLICANT: Rosetta Traficante

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. THAT until further order the children of the marriage E born … April 1994, J born … November 1996 and W born … November 2002 live with the wife.

2. THAT the husband’s time to be spent with each of the children be reserved pending further order of the Court.

3. THAT until further order the husband be and is hereby restrained from harassing, assaulting, threatening, intimidating or in any way contacting or interfering with the wife or further from attending at or in the vicinity of her parent’s home at T.

4. THAT the wife have leave to forthwith make, file and serve an amended application in a case and that such document be made returnable in the Judicial Duty List on Thursday 4 October 2007 at 10.00 a.m.

5. THAT the husband attend Court punctually at 10.00 a.m. on Thursday 4 October 2007 and he is advised prior to that time to obtain appropriate legal advice.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. RESERVE liberty to apply on short notice and upon proper documentation filed and served.

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. The matter of Irwin is before the court in the Judicial Duty List.  Ms Traficante, solicitor, appears for the wife.  There is no appearance by or on behalf of the husband and the hearing is ex parte.

2. As to service, I now have an affidavit of a process server, Mr J, who deposes to serving the husband at the H property on 11 September.  The husband purportedly signed an acknowledgment of service and the wife has identified to the court that it is indeed the husband's signature on that document.  Generally I am therefore satisfied as to service upon the husband this day.  The husband was called out of court and did not appear.

3. For reasons that I will shortly outline I will require the application to be more particularly and carefully drafted and for that to be reserved forthwith upon the husband.  I will then direct the husband's attendance at court on the adjourned hearing date which will be Thursday, 4 October 2007 at 10.00 a.m.

4. The current application before the court seeks an interim order for the three children of this marriage to live with the mother and with the time to be spent with them by the husband to be reserved.  Otherwise there is an injunction sought against the husband to restrain him from harassing, assaulting intimidating, contacting, or in any way interfering with the wife and significantly there is a sole use and occupation order sought in favour of the wife in respect of that H property. 

5. I have read the affidavit of the wife filed 7 September 2007.  That affidavit does need to be updated as to the events post that swearing date.  The overview is that the parties separated in April of 2007.  The wife remained in the home with the children and the husband would come and go as he elected. 

6. From 31 August, that is some four months thereafter, the husband remained at the home and has since then been primarily living at the home (at one end of the house).  There was a very difficult situation within the home and a marked level of dispute until such time as the wife with the children left to live at her parents' home in T.  Since then they have not attended school and that is a situation that must urgently be reversed.

7. I understand from the contents of the wife's affidavit that the period within the home post separation was difficult and that there have been substantial threats and indeed a reference to drug taking and other issues.  What I have indicated to the solicitor appearing for the wife this day is that the application must be withdrawn so there is a further document before the court with a specific order sought that the husband forthwith vacate and not return to live in the home. 

8. By the expression "sole and exclusive occupation" for most people would understand that, implicit in that order, would be the vacation of the home by the husband.  In all of the circumstances of this case however I think it is appropriate that the fresh application very carefully set out each and every order sought by the wife. 

9. The wife's further affidavit should highlight the difficult circumstances of her living with her parents, the impact it is having upon the children as to their lifestyle, school attendance and generally that it would be in the best interests of the children to return with the wife to the H property.  Those circumstances should be both updated and set out in some reasonable detail.

10. In the meantime it is proper for there to be an interim order for the children to live with the wife.  That is in their best interests.  I will reserve any question of the husband's time to be spent with the children and on the basis of the material before the court I will pronounce an interim injunction endeavouring to moderate or control the alleged conduct and behaviour of the husband.

11. I will direct his attendance at court on the adjourned hearing date.  I will have these brief reasons transcribed so the judge hearing the matter on the adjourned hearing date can understand that I was satisfied as to service today and otherwise largely satisfied of the merits of the wife's claim and the necessity for an interim order to be made for the benefit of the children.

12. There will need to be an updated affidavit of service of the further application and of the wife's material by way of her updated affidavit. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

Associate

Date: 2 October 2007