Modina & Stockton

[2021] FCCA 1677

FEDERAL CIRCUIT COURT OF AUSTRALIA

Modina & Stockton [2021] FCCA 1677

File number:	DNC 193 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	16 June 2021
Catchwords:	FAMILY LAW – property – whether the wife should have sole occupancy of the former matrimonial home – where the husband has occupied the former matrimonial since separation–where the wife has made all payments towards the mortgage of the former matrimonial home since separation – where the husband claims to be resident at the former matrimonial home and another property – Court satisfied it is appropriate for the wife to have sole occupancy of the former matrimonial home.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	7
Date of hearing:	16 June 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Bowen of Bowen Lawyers
The Respondent:	Appearing on his own behalf

ORDERS

DNC 193 of 2021

BETWEEN:

MS MODINA

Applicant

AND:

MR STOCKTON

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the applicant shall have sole occupancy of the property situated at B Street, Suburb C property, and for that purpose the following shall occur:

(a)The respondent shall vacate the B Street, Suburb C property within 14 days from the date of the orders;

(b)The respondent shall leave the property in a clean and tidy condition;

(c)That the respondent shall inform the applicant by SMS text to the applicant’s mobile number, of the time and date he intends to vacate the property on.

(d)The respondent shall be restrained and injunction issue restraining him from attending at the property situated at B Street, Suburb C;

(e)That the respondent leave at the property all gardening and house maintenance equipment and tools.

2.That the respondent file and serve a Response, affidavit in support and financial statement with 28 days failing which the applicant advise the Court and the Registrar that the respondent has failed to comply with orders and the conciliation conference may be cancelled.

3.That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 2 September 2021 at 3.30pm.

4.That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

5.That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

6.That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

7.That the parties prepare a draft joint statement of assets and liabilities on or before 2 September 2021.

8.That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

9.That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

10.That the matter be adjourned to 1 November 2021 at 11.30am for further directions NOTING the change of the adjourned date.

11.That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

12.That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for sole use and occupation of the former matrimonial home where the parties resided until February 2019 when the wife left the property.  The husband has been in occupation since that time. However, since then he has not made any contributions to the mortgage and the wife has continued to pay the mortgage for each fortnight of somewhere between $1,060 to, more recently, $912 a fortnight. 

2. The matter came on before me on 20 May 2021 and I made an order that the husband should file a Response, Affidavit and Financial Statement by the close of business on 9 June 2021; that is a week ago. The husband told me this morning that he had been unable to comply with the order because he was unable to upload documents on the Commonwealth Courts Portal.  I asked him why he had not printed the documents so that he could provide a hardcopy to me in Court.  He told me was not able to afford printing. He said, however, that if I stood the matter down for an indeterminate period, he would attempt to have the documents printed at Northern Territory Legal Aid or somewhere else. 

3. I was not satisfied that the husband was genuine in his attempts to file material or put forward evidence upon which he had proposed to rely. In other words, there is an unsatisfactory explanation for his failure to comply with orders.  The consequence of that is that the matter has gone forward without evidence from the husband.  Nevertheless, I caused the wife to be called to give evidence. She confirmed under oath that she was continuing to pay the mortgage and had done so for two years.  The husband did not challenge that in cross-examination. As an unrepresented person, the husband seemed to have difficulty formulating a relevant cross-examination.

4. The wife’s affidavit filed on 30 April 2021 alleges that the husband is in fact resident at D Street, Suburb E which is apparently the husband’s son’s residence.  It is alleged in the affidavit, though the evidence is somewhat unclear, that he in fact receives rent assistance in respect of his residence at that address.  That was not challenged. 

5. When the matter came on before me on 20 May 2021, I asked the husband how it was that he was resisting a sole use and occupation order for the former matrimonial home but at the same time appeared to be resident at another address.  He told me he was resident at two addresses.  That answer, which on the facts appears implausible, was not explained in any sense by affidavit evidence or other evidence.  However, the husband submitted to me today that he has since moved from the D Street, Suburb E property back to the former matrimonial home.  The reason for that is entirely unclear. 

6. The circumstances of this case are that the husband has remained in occupation of the former matrimonial home for some two years without making any payments towards the mortgage of the property and he has given no indication to the Court that he intends to do so in future. I consider that to be unjust and inequitable. The husband’s continued occupation is quite untenable and if it were allowed to continue constitutes a quite serious injustice. 

7. In the circumstances I propose to make the orders sought by the wife.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       22 July 2021