MILFORD & MILFORD
[2010] FMCAfam 598
•30 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILFORD & MILFORD | [2010] FMCAfam 598 |
| FAMILY LAW – Property – exclusive occupation – application by husband for exclusive occupation of former matrimonial home – application for both interim and final orders in similar terms – injunction to restrain the respondent from further residing in the former matrimonial home. |
| Family Law Act 1975 (Cth), ss.106A, 114 |
| Milford & Milford [2009] FMCAfam 1391 |
| Applicant: | MR MILFORD |
| Respondent: | MS MILFORD |
| File Number: | SYC 7029 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 May 2010 |
| Date of Last Submission: | 10 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Youseff |
| Solicitors for the Applicant: | Marsdens Law Group |
| Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
UNTIL FURTHER ORDER the Respondent Wife is restrained from further residing in the former matrimonial home situate at and known as Property C in the State of New South Wales and is to vacate the said home within seven (7) days from the date of this order.
UNTIL FURTHER ORDER the Respondent Wife is restrained from keeping any of her personal chattels and belongings in the said former matrimonial home situate at and known as Property C in the State of New South Wales and is to remove all such items within seven (7) days from the date of this order.
UNTIL FURTHER ORDER the Respondent Wife is restrained from removing any items of furniture, electrical goods or appliances or any household items from the said former matrimonial home situate at and known as Property C in the State of New South Wales.
UNTIL FURTHER ORDER the Respondent Wife is restrained from causing any damage or permitting any other person to cause any damage to the said former matrimonial home situate at and known as Property C in the State of New South Wales.
UNTIL FURTHER ORDER the Applicant Husband is declared to be entitled to occupy the said former matrimonial home situate and known as Property C in the State of New South Wales.
IT IS NOTED that publication of this judgment under the pseudonym Milford & Milford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7029 of 2009
| MR MILFORD |
Applicant
And
| MS MILFORD |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Husband for orders that he should be entitled to occupy the former matrimonial home at Property C, to the exclusion of the Wife.
The Wife opposes those orders.
Orders Sought
The Husband seeks orders, both on an interim and a final basis, summarised as follows:
a)That the Husband be entitled to occupy, to the exclusion of the Wife, the home situate at Property C in the State of New South Wales;
b)That the Wife vacate the home within 48 hours of the date of making the orders;
c)That the Wife remove all her personal belongings from the home at the time she vacates;
d)That the Wife be restrained from removing any furniture, electrical goods or household items;
e)That the Wife be restrained from causing any damage to the home; and
f)That the Registrar of the Court be appointed to execute any deed, document or instrument necessary to give effect to the orders under s.106A of the Family Law Act.
It is unclear why this last order is sought, as there does not appear to be any need for any party to sign any particular document.
The Wife has not filed a response or any affidavit in reply to the Husband’s application, but she has appeared in Court to advise that she opposed the orders sought and was seeking legal advice.
Background
The parties commenced a relationship in approximately February 2007. They were married [in] 2009. There is one child of the marriage, a little boy called [X], who was born [in] 2009. The child lives with the Father as a result of orders made by this Court on 21st December 2009 (Milford & Milford[1]).
[1] [2009] FMCA 1391
The Father is some years older than the Mother. He was born [in] 1982 and she was born [in] 1990. She is 19 years of age.
The Father has set out the facts on which he relies in an affidavit sworn on 23rd April 2010. Essentially he claims that:
·The Mother smoked marijuana on a daily basis throughout the relationship, despite his objections.
·The Wife’s mother was a heavy drinker who also used marijuana on a daily basis.
·The Wife became pregnant with the parties’ son in 2008.
·They commenced to live together after they were married [in] 2008.
·The Husband continued to complain about the Wife’s drug use on the basis that it was bad for the baby’s health.
·The Wife left the Husband with the child on 17th November 2009. On 20th November 2009, on the Husband’s application, Riethmuller FM issued a recovery order for the child.
·The child has lived with the Husband since that date.
·The Husband lives at his mother’s home with the child.
·The Husband did not see the Wife again until she contacted him in January 2010. He deposed that she said to him:
I fucked up. I am sorry. Give me another chance.[2]
[2] Affidavit of Mr Milford sworn 23.4.2010 at paragraph [52]
·The Husband decided to attempt a reconciliation with the Wife, who agreed that she would attend drug rehabilitation.
·The child remained living with the Husband’s mother but the Husband and Wife moved back into the home in Property C.
·The Wife refused to attend the rehabilitation centre and, after arguments, the Husband moved out and went to live in his mother’s home.
·The Wife later rang the Husband and threatened to commit suicide by hanging herself.
·The Husband telephoned the police. When they arrived the Wife was not there, as she had been taken to [omitted] Hospital by ambulance.
·The Husband and Wife returned to the home in Property C but lived separately.
·Early in February 2010 the Husband left the home in Property C.
·The Wife attended the Husband’s [business] on 3rd February 2010 and made threats, which resulted in the Husband reporting the matter to the police and obtaining a provisional Apprehended Violence Order against the Wife.
·The Wife moved back into the home in Property C.
·The Husband went to live at his mother’s home with the child [X].
·The Husband deposed that he went to the home escorted by the police to collect some belongings and found that the Wife was drunk and accompanied by an unidentified man who was wearing items of the Husband’s clothing.
·The Husband deposes that he pays the mortgage payments and all outgoings on the home.
·The Husband does not receive any child support payments for the child.
·The Husband owns two investment properties in the suburb of [A] which are both rented.
·The Husband claims that he is not in a financial position to obtain other rented accommodation for the child and himself as well as continuing to meet the mortgage payments on the house in Property C.[3]
·The Husband states that he believes that the Wife would be able to reside with her mother, who lives in [A].
·He claims not to have received any rent or other payment for the Wife to cover her occupation of the home.
[3] Affidavit of Mr Milford 23.4.2010 at [74]-[75]
The Husband has also deposed to the fact that he was advised on
28th March 2010 that a person was stabbed at the house. He made inquiries form the police and was told that the people in the house were having a party and a fight broke out. Six people were charged with offences and a man was stabbed. He was taken to [omitted] hospital in a serious condition.
The Husband’s solicitors wrote to the Wife on 12th February 2010 asking her to vacate the property within seven days.
The Husband claims that he cannot continue to live with his mother, as it is placing a strain on their relationship. The title to the property is in the Husband’s name.
Submissions
The Husband’s solicitor, Ms Youseff, submits that the Husband should have exclusive occupation of the home and that the Wife should immediately vacate.
The Wife attended Court on 10th May 2010 unrepresented. She said that she had spoken to a solicitor but had not raised the funds to obtain representation. She stated that she had been paying rent to the Husband until the Apprehended Violence Order was taken out. She said that she had sought a reconciliation with the Husband but he had declined to reconcile with her. She also complained that she had not seen the child for some time.
As to the party at the premises that led to the man being stabbed, the Wife blamed the neighbours and said that the stabbing had occurred outside the house.
As for the Husband’s claim that she could return to live with her mother at [A], the Wife said that her mother had disowned her and this option was not open to her.
Conclusions
It appears clear that the relationship between the Husband and the Wife has come to an end. The parties’ child lives with the Father, who cares for him with the assistance of his mother. It is not unreasonable for the Father to wish to live in his own house to provide a home for his child.
It is a matter of concern that the Mother appears to have invited other people to live in the house with her, people who are strangers to the Husband. It is even more concerning that a party took place that led to a brawl and an act of serious violence. The Wife’s apparent continued drug use is also disturbing.
In my view, the orders sought should be granted, at least on an interim basis. The Wife has filed no documents in reply. She is not paying any rent or contributing to the outgoings on the property.
There is power under s.114(1)(b) of the Family Law Act to make the orders that the Husband seeks. This appears to be a case where that power should be exercised. However, there has not been shown any basis for an order under s.106 of the Act and I do not propose to make that order.
The application will be listed for final hearing at a suitable future date.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 15 June 2010
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