JARROTT & JARROTT - [2011] FamCA 819

FAMILY COURT OF AUSTRALIA

JARROTT & JARROTT

[2011] FamCA 819

FAMILY LAW – CHILDREN – With whom children shall live – Relocation

FAMILY LAW – CHILDREN – With whom children shall live – high conflict in the parental relationship – the father has remarried – conflict between the mother and the children’s stepmother – lack of communication – children aware of adult conflict – mother has been the primary carer of the children since birth – children shall live with the mother

FAMILY LAW – CHILDREN – With whom children shall spend time – children have meaningful relationships with both parents – children are developing a relationship with their stepmother – each parent values the relationships of the children with the other parent – the mother – children expecting birth of half-sibling – children’s need to be included in the father’s new family – children shall spend substantial and significant time with the father

FAMILY LAW – PROPERTY SETTLEMENT – Contributions

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered

Family Law Act 1975 (Cth) ss 60CC, 75(2), 79(4)

APPLICANT:

Mr Jarrott

RESPONDENT:

Ms Jarrott

FILE NUMBER:

(P)SYC

1134

2009

DATE DELIVERED:

12 August 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATES:

4, 5, 6 & 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Lloyd SC

SOLICITOR FOR THE APPLICANT:

McDonnell Milne Toltz

COUNSEL FOR THE RESPONDENT:

Mr G Gersbach

SOLICITOR FOR THE RESPONDENT:

Tonkin Drysdale Partners

Orders

Children

That the parties have equal shared parental responsibility for S JARROTT born … March 2004 and U JARROTT born … February 2007 (the children).
That the children live with the mother.
That until the conclusion of the 2011 school year both parties are restrained from enrolling S and U at any other school or pre-school than the one each child respectively presently attends.
Until the commencement of the 2012 school year, the children shall spend time with the father as follows:
4.1 During school terms in a two-week cycle as follows:
4.1.1in week one, from the conclusion of school on Friday to 4.30 pm the following Sunday; and
4.1.2in week two, from the conclusion of school on Wednesday to the commencement of school on Friday, with the father to collect the children at the commencement of each period either from the mother or school as the case may be and return them to the mother or the school at the conclusion of each period.
4.2From 4:30 pm on the eve of Father’s Day until 4:30 pm on Father’s Day.
4.3For one-half of each of the NSW terms 1, 2 and 3 school holiday periods as agreed between the parties and failing agreement, the first half.
4.4From 12.00 noon on 25 December 2011 to 3.00 pm on 30 December 2011 with the mother to deliver the children to the home of the father at the commencement of the period and the father to deliver the children to the home of the mother at the…

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 JARROTT & JARROTT

Details

AGLC: JARROTT & JARROTT [2011] FamCA 819
Case: [2011] FamCA 819
Decision Date: 12 August 2011

CaseChat Overview and Summary

In the matter of JARROTT & JARROTT, Cleary J of the Family Court of Australia determined issues concerning the living arrangements and time spent with the parties' two children, S JARROTT and U JARROTT, as well as property settlement and spousal maintenance. The dispute arose in the context of high conflict between the parents, including friction between the mother and the father's new wife, and a lack of communication between the parents. The children were aware of the adult conflict.

The court was required to determine with whom the children should live, considering the mother's role as primary carer since birth and the children's need to maintain meaningful relationships with both parents. Additionally, the court had to consider the children's developing relationship with their stepmother and their need to be included in the father's new family, including the impending birth of a half-sibling. The court also addressed the division of property and the provision of spousal maintenance.

Cleary J ordered that the parties have equal shared parental responsibility for the children and that the children live with the mother. The court outlined a detailed schedule for the children to spend substantial and significant time with the father, which varied depending on the children's residence and the school year. The orders also included provisions for the sale of the former family home, with the proceeds to be disbursed in a specific priority, and for the husband to pay a sum of money to the mother. The husband was also ordered to pay spousal maintenance to the mother until the settlement of the sale of the former family home.

Orders

Orders of the court

Children

That the parties have equal shared parental responsibility for S JARROTT born … March 2004 and U JARROTT born … February 2007 (the children).

That the children live with the mother.

That until the conclusion of the 2011 school year both parties are restrained from enrolling S and U at any other school or pre-school than the one each child respectively presently attends.

Until the commencement of the 2012 school year, the children shall spend time with the father as follows:

4.1 During school terms in a two-week cycle as follows:

4.1.1 in week one, from the conclusion of school on Friday to 4.30 pm the following Sunday; and

4.1.2 in week two, from the conclusion of school on Wednesday to the commencement of school on Friday, with the father to collect the children at the commencement of each period either from the mother or school as the case may be and return them to the mother or the school at the conclusion of each period.

4.2 From 4:30 pm on the eve of Father’s Day until 4:30 pm on Father’s Day.

4.3 For one-half of each of the NSW terms 1, 2 and 3 school holiday periods as agreed between the parties and failing agreement, the first half.

4.4 From 12.00 noon on 25 December 2011 to 3.00 pm on 30 December 2011 with the mother to deliver the children to the home of the father at the commencement of the period and the father to deliver the children to the home of the mother at the conclusion of the period.

4.5 For one-half of the period from 31 December 2011 to the end of the Christmas school holiday period, with such time to be spent in blocks of no more than 10 days at a time.

4.6 Unless otherwise stated in any particular order, the father shall collect the children at the commencement of each period, either from the mother or school as the case may be and return them to her, or the school, at the conclusion of each period.

At any time commencing January 2012 the mother may establish a residence for the children in the … region of Newcastle (“Southern Newcastle area”).

In the event that the mother moves with the children to Southern Newcastle area, she may enrol the children in a school local to her residence.

From the commencement of the 2012 school year, the children shall spend time with the father as follows:

7.1 Whilst ever both parties remain living in the Central Coast area, during school term in a two-week cycle as follows:

7.1.1 in week one, from the conclusion of school on Friday to 4.30 pm the following Sunday; and

7.1.2 in week two, from the conclusion of school on Wednesday to the commencement of school on Friday, with the father to collect the children at the commencement of each period either from the mother or school as the case may be and return them to the mother or the school at the conclusion of each period.

7.2 In the event the children are living in Southern Newcastle during school term in a two-week cycle as follows:

7.2.1 In week one, from the conclusion of school on Friday until the commencement of school the following Monday (extending to Tuesday if Monday is a public holiday) with the father or his nominee to collect the children from and deliver the children back to school;

7.2.2 In week two, from the conclusion of school on Thursday to the commencement of school on Friday, with the mother or her nominee to collect the children from school on Thursday and deliver them to the home of the father and to collect the children from the home of the father on Friday morning and deliver them to school.

7.3 On the weekend of Father’s Day from 4.30 pm on the eve of Father’s Day until 6.00 pm on Father’s Day, with the mother to deliver the children to the home of the father at the commencement of the period and the father to deliver the children to the home of the mother at the conclusion.

7.4 For one-half of each school holiday term period as agreed between the parties and failing agreement, the first half in odd numbered years and the second half in even numbered years.

7.5 For one-half of the Christmas school holiday period as agreed between the parties and failing agreement, the first half of each holiday commencing in an odd numbered year (“the first half”) and the second half in each holiday period commencing in an even numbered year (“the second half”).

7.6 When the children are with the father in the second half, from 9.00 am on 23 December to 12.00 noon on 25 December.

7.7 When the children are with the father in the first half, time with him shall be suspended from 9.00 am on 23 December to 12.00 noon on 25 December, during which time the children shall live with their mother.

7.8 Time with the father shall be suspended on the weekend of Mother’s Day from 4.30 pm on Mother’s Day eve for the balance of that period.

That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are involved or which relate to the activities of the children, although they might not be involved (such as parent/teacher interviews) and each party shall be at liberty to attend such function or event.

That each parent makes every effort to ensure that the children or either of them attend all sporting and/or other extra-curricular activities in which they are enrolled with the consent of both parents.

10.

Other than in the event of an emergency, each parent will make every effort to ensure that the children receive medical, dental and other health related treatment from the same treating professional and each parent may contact any such treating professional for information and advice about the health and progress of the children.

11.

Each party shall keep the other advised as to their present address and contact telephone numbers.

12.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

13.

The parties shall do all things necessary and execute all documents to cause the property at U (“the former family home”) to be sold at a price agreed between the parties, and failing agreement as determined by the President of the Real Estate Institute of New South Wales or his nominee, and the proceeds of sale shall be disbursed in the following manner and priority:

(a) payment of agent’s commission and legal expenses of the sale;

(b) discharge of any mortgage secured over the former family home;

14.

The mother shall have the exclusive occupation of the property at U (“the former family home”) until the settlement of the sale.

15.

That the husband shall pay to the mother the sum of $765,000 within 42 days of the date of settlement of sale.

16.

Until the settlement of sale of the former family home the husband shall be responsible for mortgage payments and outgoings on the property.

17.

Until the husband has complied with Order 15 hereof, the husband shall continue to pay $200 each week to the mother by way of spousal maintenance and for this purpose the mother shall provide to the husband details of a bank account into which such payments shall be made.

18.

The application of the husband for departure order filed 1 September 2010 is dismissed.

19.

Unless otherwise provided in these orders, each party is entitled to sole legal and beneficial ownership of all property, including but not limited to bank accounts and superannuation interests, in their respective name, control or possession as at the date of these orders.

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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