COURT NOT CONVINCED BY FATHER’S MISREPRESENTATION IN HIS AFFIDAVITS

FALZON & FALZON

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 2022

This is an urgent application brought by the father for sole use and occupation of the former matrimonial home. 

FACTS:

Mr. Falzon (the father) filed an urgent application for the sole use and occupation of the former matrimonial home on the basis that the accommodation given by his employer for him to live in, where his children and he lives, is a hotel and not suitable for the children to grow up in.

According to the father’s affidavits, Ms. Falzon (the mother) had been taking drugs in mid-2019.  Consequently, when she was under the influence, she became violent and explosive.  The father left the former matrimonial home with his children for the physical and physiological welfare of his children and himself.  

However, the truth is that the children are spending four nights a week with the mother in the former matrimonial home and three nights with the father.  

ISSUE:

Whether or not the Court should grant the urgent application filed by the father.

HELD:

The Court was not satisfied that there is a proper basis for a sole use and occupation order and that there is the urgency to the matter.

The father’s affidavit created an impression that the children were living solely with the father, which is not the case.  They are living substantially or most of the time with the mother.  The mother also said that although she is not paying the mortgage on the former matrimonial home, that that was pursuant to agreement with the father and in return, he would not pay child support. The father does not pay any child support according to his financial statement filed earlier in the year.

The Court did not find any basis for making orders related to the father’s application; instead, it made an order for adjournment.