Trevor and Trevor - [2017] FamCA 955

FAMILY COURT OF AUSTRALIA

TREVOR & TREVOR

[2017] FamCA 955

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought exclusive occupation of the former matrimonial home – Where both parties make allegations of family violence against the other – Where the Court is unable to make findings of fact in interim proceedings – Consideration of section 43 of the Family Law Act1975 (Cth) – Court finds that given the allegations of family violence one party must vacate the former matrimonial home – balance of convenience – Orders made for husband to vacate the former matrimonial home – Orders made restraining the husband from entering the former matrimonial home.

Family Law Act 1975 (Cth) ss 43, 114

Jyotisha & Jyotishaand Anor [2016] FCA 738

S & S [2002] FamCA 59

APPLICANT:

Ms Trevor

RESPONDENT:

Mr Trevor

FILE NUMBER:

SYC

1279

2017

DATE DELIVERED:

6 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Webb

SOLICITOR FOR THE APPLICANT:

Richard Wise Solicitor

COUNSEL FOR THE RESPONDENT:

Mr McGrath

SOLICITOR FOR THE RESPONDENT:

Hannaford Cox Connellan And Mcfarland

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

As and from 14 November 2017, the Respondent husband is restrained from entering the premises known as Property B (Property B), more fully described in Folio: Auto Consul ….
As and from 14 November 2017, the Applicant wife have exclusive occupancy of Property B.

AND THE COURT NOTES THAT:
A. The wife undertakes that the orders made on 11 July 2017 will be complied with so that $500 is released to each party each week.
B. The wife undertakes to release from the parties’ business funds an amount of not less than $5,000 to the husband in the event that the husband wishes to reside in the property known as ‘Property C’ and to apply those funds to bring the property into a clean and habitable condition, on the basis that any account presented to the wife with respect to expenses incurred in achieving that outcome is to be paid within 48 hours of presentation to the wife.
C. The wife will facilitate the parties’ horsefloat being made available to the husband immediately.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevor & Trevor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1279 of 2017

Ms Trevor

Applicant

And

Mr Trevor

Respondent

EX TEMPORE REASONS FOR…

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 Trevor and Trevor

Details

AGLC: Trevor and Trevor [2017] FamCA 955
Case: [2017] FamCA 955
Decision Date: 6 November 2017

CaseChat Overview and Summary

In the matter of *Trevor and Trevor*, heard before McClelland J, the dispute concerned orders relating to the parties' property and financial arrangements. The applicant wife sought and was granted orders restraining the respondent husband from entering a property identified as Property B, and granting the wife exclusive occupancy of that property, effective from 14 November 2017.

The court was required to determine the terms of interim orders concerning the parties' residences and financial support pending further proceedings. This included the exclusive use of a particular property and the provision of funds for the husband's accommodation and living expenses.

McClelland J made orders restraining the husband from entering Property B and granting the wife exclusive occupancy of that property. These orders were made subject to undertakings by the wife. The wife undertook to comply with previous orders for the release of $500 weekly to each party. Furthermore, she undertook to release a minimum of $5,000 from business funds to the husband should he wish to reside at Property C, to be used for making that property clean and habitable, with any associated expenses to be paid within 48 hours of presentation. The wife also agreed to facilitate the immediate availability of the parties' horsefloat to the husband.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

As and from 14 November 2017, the Respondent husband is restrained from entering the premises known as Property B (Property B), more fully described in Folio: Auto Consul ….

As and from 14 November 2017, the Applicant wife have exclusive occupancy of Property B.

AND THE COURT NOTES THAT:

A. The wife undertakes that the orders made on 11 July 2017 will be complied with so that $500 is released to each party each week.

B. The wife undertakes to release from the parties’ business funds an amount of not less than $5,000 to the husband in the event that the husband wishes to reside in the property known as ‘Property C’ and to apply those funds to bring the property into a clean and habitable condition, on the basis that any account presented to the wife with respect to expenses incurred in achieving that outcome is to be paid within 48 hours of presentation to the wife.

C. The wife will facilitate the parties’ horsefloat being made available to the husband immediately.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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