FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARMAN & BARLOW | [2011] FMCAfam 1566 |
| Catchwords: FAMILY LAW – Final Property adjustment – competing property adjustment applications – assessment of contribution – consideration of section 75(2) factors. |
| Legislation: Family Law Act 1975, ss.13C, 55, 60CA, 60CC, 61DA, 65DAA, 65DAA(5), 69ZT, 69ZN, 75(2), 117, 117(2A) Evidence Act 1995, s.140 |
| Cases cited: Other Articles Cited: |
| Applicant: | MR JARMAN |
| Respondent: | MS BARLOW |
| File Number: | AYC 66 of 2009 |
| Judgment of: | Harman FM |
| Hearing dates: | 13, 14 and 15 December 2010, 9, 10 May 2011 |
| Date of Last Submission: | 10 May 2011 |
| Delivered at: | Albury |
| Delivered on: | 11 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Watts McCray Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Boyle |
| Solicitor for the Independent Children’s Lawyer: | Harris Lieberman |
ORDERS
Discharge all prior parenting orders with respect to the child of the relationship X born (omitted) 2008.
X’s parents Mr Jarman and Ms Barlow shall have equal shared parental responsibility for X.
X’s parents shall consequent to the above order consult with each other and make joint decisions with respect to major long term issue decisions as defined in the Family Law Act 1975 including but not limited to:
(a)X’s education including pre school and school;
(b)X’s religious and cultural upbringing;
(c)X’s health and particularly any specialist medical treatment;
(d)X’s surname; and
(e)Any changes to X’s living arrangements which would make it more difficult to spend time with a parent or would impact upon X’s meaningful relationship or potential to develop same with each parent.
That until the commencement of term one in 2012 X shall live with her Father:
(a)From the date of these orders and until 6pm Sunday 15 May 2011;
(b)Thereafter each alternate weekend from 10am Friday until 6pm Sunday;
(c)In each intervening week from 10am Thursday until 6pm Sunday (and with the intention that X will be in her Father’s care for a period from Friday to Sunday and then the following Thursday to Friday)
Commencing from the first term of 2012 and continuing until first term 2013 X shall live with Father:
(a)Each alternate weekend from 10am Thursday until 6pm Sunday;
(b)Each intervening week from 10am Thursday until 6pm Friday (with the intention that X will…
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- AGLC
- JARMAN & BARLOW [2011] FMCAfam 1566
- Case
- [2011] FMCAfam 1566
- Decision Date
CaseChat Overview and Summary
The court faced the challenge of resolving conflicting expert evidence regarding the child's best interests and the impact of the parents' behavior on X. The case highlighted significant issues concerning the weight to be given to expert evidence, particularly in the context of the principles established in Makita v Sprowles. The court had to balance the experts' opinions with other evidence and determine the most appropriate parenting arrangements for X, considering her age and developmental needs.
In its decision, the court discharged all prior parenting orders and established new arrangements, granting both parents equal shared parental responsibility. The court detailed specific living arrangements for X, transitioning from living primarily with her father until the start of the 2012 school term, and then gradually increasing the periods she spent with her father. The court also outlined provisions for special occasions and holidays, ensuring both parents had opportunities to spend meaningful time with X. Furthermore, the court mandated joint decision-making on major issues affecting X's life and imposed restrictions on the parents' communication regarding the proceedings to protect X.
Regarding property adjustment, the court ordered Mr. Jarman to pay Ms. Barlow $78,000 within three months, failing which he would need to sell another property to satisfy the payment. The court also addressed the transfer of ownership of specific assets and the division of financial resources, ensuring a fair distribution in line with the statutory guidelines. The court concluded by dismissing outstanding applications, directing the return of exhibits, and granting leave for the Independent Children's Lawyer to apply for a contribution to costs. The divorce was granted to become final one month from the date of the judgment.
Orders
Orders of the court
1.
Discharge all prior parenting orders with respect to the child of the relationship X born (omitted) 2008.
2.
X’s parents Mr Jarman and Ms Barlow shall have equal shared parental responsibility for X.
3.
X’s parents shall consequent to the above order consult with each other and make joint decisions with respect to major long term issue decisions as defined in the Family Law Act 1975 including but not limited to:
(a) X’s education including pre school and school;
(b) X’s religious and cultural upbringing;
(c) X’s health and particularly any specialist medical treatment;
(d) X’s surname; and
(e) Any changes to X’s living arrangements which would make it more difficult to spend time with a parent or would impact upon X’s meaningful relationship or potential to develop same with each parent.
4.
That until the commencement of term one in 2012 X shall live with her Father:
(a) From the date of these orders and until 6pm Sunday 15 May 2011;
(b) Thereafter each alternate weekend from 10am Friday until 6pm Sunday;
(c) In each intervening week from 10am Thursday until 6pm Sunday (and with the intention that X will be in her Father’s care for a period from Friday to Sunday and then the following Thursday to Friday)
5.
Commencing from the first term of 2012 and continuing until first term 2013 X shall live with Father:
(a) Each alternate weekend from 10am Thursday until 6pm Sunday;
(b) Each intervening week from 10am Thursday until 6pm Friday (with the intention that X will be in her Father’s care from Thursday until Sunday and then the following Thursday to Friday).
6.
Commencing from the first school term of 2013 until first school term 2014 X shall live with her Father:
(a) Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if long weekend or pupil free day);
(b) Each intervening week during school days from the conclusion of school Thursday until the commencement of school Friday.
(c) For the first half of each short New South Wales school holiday period from 10am on the first Saturday until 6pm on the middle Sunday; and
(d) For two periods of one week each during the Christmas school holidays commencing December 2013 and being, failing agreement to the contrary between X’s parents:
(i) A one week period commencing 3pm Boxing Day and concluding 3pm 3 January 2014; and
(ii) From 3pm 19 January 2014 until 3pm 26 January 2014.
7.
Commencing term one of 2014 and thereafter X shall live with Father:
(a) In each alternate week during school terms from the conclusion of school Thursday until the commencement of school the following Monday;
(b) In each intervening week from the conclusion of school Wednesday until the commencement of school Friday; and
(c) For one half of each New South Wales school holiday period as agreed between X’s parents or failing agreement, for the first half of each short New South Wales holiday period (as defined above), and alternating between the first and second half of each school holiday period during the Christmas holidays commencing with the first half of the Christmas school holidays commencing December 2014.
8.
X shall live with her Mother at all times other than when living with her Father.
9.
Notwithstanding the above orders X shall spend time with her Mother and Father respectively on the Mother’s and Father’s Day weekends if she will not already be in their care on that weekend and from 6pm Saturday until the commencement of school the following Monday.
10.
Notwithstanding the above orders X shall spend time with her Father for the Christmas Eve/Boxing Day period in each year until and including Christmas Day 2013 as follows:
(a) Christmas 2011 (being a weekend when X would otherwise in her Father’s care) time shall conclude 6pm Christmas Eve;
(b) In 2012 X shall be in her Father’s care from 3pm Christmas Day until 3pm Boxing Day; and
(c) In 2013 X shall be in her Father’s care from 3pm Christmas Eve until 3pm Boxing Day.
11.
Commencing Christmas Day 2014 X shall spend time with the parent with whom she is not spending the first of the Christmas school holidays from 3pm Christmas Day until 7pm Boxing Day.
12.
During 2012 each parent may nominate four periods per calendar year of 7 days each that they will have X in their care for the purpose of a block period of time with her and provided:
(a) The parenting wishing to have that period is to give notice of not less than 14 days to the other parent;
(b) The period of 7 days shall not include Christmas Day or X's Birthday;
(c) If Mr Jarman is having a 7 day period it shall as far as practicable include and incorporate the weekend period he would already exercising;
(d) If Ms Barlow is intending to have a block period it shall occur during a period when Mr Jarman is due to have X in his car for a Thursday to Friday period and not a Thursday to Sunday period.
13.
Each parent shall be entitled to communicate with X by telephone and email at all reasonable times and with reasonable frequency and provided that the parent wishing to contact X shall instigate that communication and the parent in whose care X is at that time shall provide X with such assistance as she may require to speak on the telephone or to use the computer but to otherwise allow her to communicate in privacy.
14.
Each parent shall refrain from and is restrained from:
(a) Discussing these proceedings, any evidence given in these proceedings or any allegation raised in these proceedings with X or any other person other than by way of provision of a copy of these orders and/or as may be strictly necessary to assist in the provision of a therapeutic service to them or X; and
(b) Denigrating, speaking ill of or otherwise criticising or castigating the other parent to or in the presence or hearing of X or allowing causing, permitting or encouraging any other person to do so.
15.
Each parent shall forthwith upon X’s enrolment at any preschool or school cause both parents details to be made known to the school as X’s parents, their details together with those of the paternal grandmother to be recorded as emergency contacts and otherwise do all things, sign all documents and give all consents and authorities necessary to enable both parents to be fully consulted and advised regarding any matter of X and to receive such information or material as they may desire and to attend all and any events or functions or at any time or for any purpose that parents are authorised and permitted to do so.
16.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, significant appointment or hospitalisation relating to X and shall provide such consents and authorities necessary to enable both parents to be fully advised and consulted regarding treatment and to visit X if hospitalised.
17.
In the event that either party proposes to make application for variation or enforcement of these orders then until first term 2014 any such application shall so far as is practicable is to be listed before me for determination and not otherwise.
18.
In the event that either party seeks to discuss the operation of these orders or the exercise of equal shared parental responsibility or seeks to review the orders in place then they shall arrange and attend Family Dispute Resolution with an accredited practitioner prior to making any application to this Court and subject to any suggestion of urgency or exemption shall be dealt with by a Registrar or Federal Magistrate.
19.
For the purpose of X passing between her parents:
(a) Changeover shall occur as far as practicable at X’s school or pre school if enrolled;
(b) If X is not enrolled at or attending school or preschool changeovers shall continue to occur through the (omitted) Contact Service or if that service is not available at any time or for any reason outside KFC (omitted).
20.
Each of the parents shall at any time that they are in proximity to each other conduct themselves with dignity and shall acknowledge the other courteously and treat the other with respect and shall ensure that any other person with them also do so.
21.
Each parent is to keep the other advised at all times of their residential address, residential phone number, emergency contact number and email address.
22.
X’s parents shall as far as practicable and save in the case of emergency communicate with each other by email or text message and shall in all communications between them be courteous and respectful of the other and focus upon issues in dispute between them in a non judgmental and constructive fashion.
23.
Each of the parents shall be entitled to provide to their respective counsellor and to X’s treating general practitioner and paediatrician a copy of these orders and with the intention that those persons shall be fully aware of the arrangements in place for X’s care and decision making and to ensure that each is able to participate in those provisions.
PROPERTY
24.
Within 3 months of today’s date the Husband shall pay to the Wife the sum of $78,000.
25.
Upon payment by the Husband to the Wife of the sum of $78,000 that:
(a) The Husband shall forthwith and simultaneous therewith do all things, sign all documents and give all consents and authorities and instructions necessary to transfer to the Wife all of his right title and interest of the property known as and situate at Property B.
(b) The Wife shall forthwith and simultaneously cause the Husband to be released and discharged from any liability to the (omitted) Bank with respect to their first mortgagee encumbering that property and otherwise indemnify the Husband with respect to all outgoings and liabilities with respect to that property.
26.
In the event that the Wife should determine that she does not wish to retain the Property B property then the Wife shall within 21 days of today’s date advise the Husband of that fact in writing and the Husband and Wife shall then each do all things, sign all documents and give all consents and authorities necessary to list for sale and sell that property by private treaty and for the best price achievable and upon completion of sale of that property the following shall apply:
(a) The proceeds of sale of that property shall be distributed in the following priority:
(i) payment and adjustment of any outstanding council or water rates;
(ii) payment out of sale costs including agents commission and legal fees on sale of and discharge of mortgage;
(iii) discharge of the mortgage to the (omitted) Bank;
(iv) in payment of the nett balance remaining to the Wife.
(b) And in such circumstance payment by the Husband to the Wife (pursuant to order 25 above ) shall if possible occur contemporaneous with settlement of the sale (noting the encumbrance of the former matrimonial home is collaterally secured against the Property S property against which the Husband is refinancing) and if not possible then within 6 weeks of completion of the sale of that property
27.
Pending either payment by the Husband to the Wife as above or completion of the sale of the Property B property each of the Husband and Wife shall contribute not less than one half of the interest payment with respect to the mortgage encumbering the Property B property.
28.
In the event the Husband shall fail, neglect or refuse to pay the sum of $78,000 to the Wife within 3 months of the date hereof then the Husband shall forthwith and thereafter sign all documents and give all consents and authorities necessary to list for sale by private treaty and at the best price achievable the property at Property S and upon completion of the sale the net proceeds shall be distributed in the following priority:
(i) payment and adjustment of any outstanding council or water rates;
(ii) payment out of sale costs including agents commission and legal fees on sale of and discharge of mortgage;
(iii) discharge of the mortgage encumbering the property;
(iv) in payment to the Wife in the sum of $78,000 together with interest calculated thereupon in accordance with the Family Law Act and Rules three months from the date of these orders until the date of payment.
29.
Each of the Husband and Wife shall do all things and sign all documents as may be necessary to cause and affect the transfer of registration of the motor vehicle in each parties’ respective possession into that parties sole name.
30.
Pursuant to section 78 each of the parties shall be and is hereby declared as against the other the sole owner both at law and in equity of:
(a) all monies in their respective possession, custody or control whether held in cash or held by any financial institution;
(b) all shares or other investments in their respective custody, possession or control;
(c) any motor vehicle in their possession;
(d) all items of furniture, personalty and chattels in their respective custody, possession or control; and
(e) all contributions to or benefits or entitlements arising from membership of any superannuation fund in their sole name.
31.
Dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.
32.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
33.
Liberty is granted to the parties to restore the matter to my list in the event of any error or clarification with respect to property adjustment.
34.
Grant leave to the Independent Children’s Lawyer to make an application for contribution to costs totalling $16791.45 and as against each party.
35.
Decline to make any order for costs and order each party and the Independent Children’s Lawyer to pay their own costs of and incidental to the proceedings.
36.
Divorce granted to become final one month from today’s date.
37.
Vacate the further listing of the Divorce application 27 June 2011.
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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