Ericsson and Jarrold (No.5) - [2018] FCCA 81

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERICSSON & JARROLD (No.5)

[2018] FCCA 81

Catchwords:
FAMILY LAW – Parenting – where an (religion omitted) teenager should go to school – where previous orders contain a contradiction in that regard.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2)(b), 60CC(2A)

Cases cited:
Rice v Asplund (1979) FLC 90-725

Mazorski v Albright (2008) 37 FLR 518
Tait & Densmore (2007) FamCA 1383

Applicant:

MR ERICSSON

Respondent:

MS JARROLD
(FORMERLY BEESLEY)

File Number:

DGC 1317 of 2013

Judgment of:

Judge Small

Hearing dates:

11 & 12 September 2017

Date of Last Submission:

12 September 2017

Delivered at:

Melbourne

Delivered on:

19 January 2018

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Rockman Lawyers

Counsel for the Respondent:

Mr Ericsson in person

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer

Solicitors for the Independent Children’s Lawyer

None

Mr Eidelsen

CE Family Lawyers

ORDERS

Paragraph 12 of the Final Orders made 18 December 2014 shall be varied to read:
“12. THAT the costs of the children’s school fees, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children shall be shared equally between the parties.”.
Paragraph 4 of the Final Orders made 18 December 2014 shall be varied to read:
“4. THAT the children spend time and communicate with the husband during the school term as follows:
a) Each alternate weekend from after school or like time on Friday to 7:00 p.m. on Sunday save that if Sunday is one of the (nationality omitted) holidays specified in paragraph 5 hereof, the children shall be returned to their mother’s care no later than two hours after the conclusion of (church omitted) prayers;
b) As otherwise agreed in writing between the parties.”
Paragraph 7(c) of the Final Orders made 18 December 2014 shall be varied to read:
“c) In the event that the (nationality omitted) festival ends at a time when (omitted) commences then the time to be spent with the party shall be extended to two hours after the conclusion of (church omitted) prayers at the conclusion of (omitted).”
For the sake of clarity, the children X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 shall attend such secondary school or schools as the mother, in her capacity as the parent with sole responsibility for the children’s education, nominates for the duration of their secondary education.
Otherwise the Orders of 18 December 2014 as amended on 24 August 2016 and 12 September 2017 remain in full force and effect.
The Application of the father filed 18 July 2016 and the Response of the mother filed 13 February 2017 are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Jarrold (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1317 of 2013

MR ERICSSON

Applicant

And

MS JARROLD (FORMERLY BEESLEY)

Respondent

REASONS FOR JUDGMENT

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 Ericsson and Jarrold (No.5)

Details

AGLC: Ericsson and Jarrold (No.5) [2018] FCCA 81
Case: [2018] FCCA 81
Decision Date: 19 January 2018

CaseChat Overview and Summary

In the matter of Ericsson and Jarrold (No.5), Judge Small considered an application to vary final orders made on 18 December 2014 concerning children's matters. The dispute centred on proposed amendments to arrangements for the children's schooling, extracurricular activities, and time spent with the husband.

The court was required to determine whether to vary the existing final orders regarding the equal sharing of school-related costs and extracurricular activities, the specific arrangements for the children's time with the husband during school terms, and the duration of time with a parent during specific cultural festivals. Additionally, the court needed to clarify the mother's sole responsibility for nominating the children's secondary schools.

Judge Small varied the final orders to reflect an equal sharing of costs for school fees, books, uniforms, excursions, camps, and extracurricular activities. The orders were also amended to specify the husband's alternate weekend contact during school terms, with a provision for earlier return on Sundays that fall within specific holidays. Further variations were made to extend time with a parent when a cultural festival concluded at a time that coincided with another religious observance. The court also clarified that the mother, as the parent with sole responsibility for education, would nominate the children's secondary schools. The father's application and the mother's response were otherwise dismissed, with the existing orders, as previously amended, remaining in force.

Orders

Orders of the court

Paragraph 12 of the Final Orders made 18 December 2014 shall be varied to read:

“12. THAT the costs of the children’s school fees, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children shall be shared equally between the parties.”.

Paragraph 4 of the Final Orders made 18 December 2014 shall be varied to read:

“4. THAT the children spend time and communicate with the husband during the school term as follows:

a) Each alternate weekend from after school or like time on Friday to 7:00 p.m. on Sunday save that if Sunday is one of the (nationality omitted) holidays specified in paragraph 5 hereof, the children shall be returned to their mother’s care no later than two hours after the conclusion of (church omitted) prayers;

b) As otherwise agreed in writing between the parties.”

Paragraph 7(c) of the Final Orders made 18 December 2014 shall be varied to read:

“c) In the event that the (nationality omitted) festival ends at a time when (omitted) commences then the time to be spent with the party shall be extended to two hours after the conclusion of (church omitted) prayers at the conclusion of (omitted).”

For the sake of clarity, the children X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 shall attend such secondary school or schools as the mother, in her capacity as the parent with sole responsibility for the children’s education, nominates for the duration of their secondary education.

Otherwise the Orders of 18 December 2014 as amended on 24 August 2016 and 12 September 2017 remain in full force and effect.

The Application of the father filed 18 July 2016 and the Response of the mother filed 13 February 2017 are otherwise dismissed.

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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