FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jelavic & Jelavic [2024] FedCFamC2F 658
File number(s): CAC 509 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PROCEDURAL – Where the respondent mother and wife did not file any trial material and did not appear at final hearing – Where proceedings continued in her absence but not on an undefended basis.
FAMILY LAW - PARENTING – Parental responsibility and living arrangements in issue for 12 and 14 year old boys – Turbulent period post-separation including child absconding, school refusing, sleeping rough, antisocial behaviour involving police, being taken into protective custody for being intoxicated, fighting and hospitalisation and refusal of support services – Where behaviour improved markedly in the care of the father.
FAMILY LAW - PROPERTY – Division of property to provide for unequal post separation contributions and provision for commitments necessary to enable the father’s support of the children – Where husband appointed trustee for sale of investment properties and mechanism for capital gains tax liabilities to be taken into account.
Legislation: Family Law Act 1975 (Cth) Pt VII, VIII,
ss 60B, 60CA, 60CC, 61DA, 65AA, 65D(1), 75(2), 79, 79(4), 81, 117, 117(2A)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1
Cases cited: Kioa v West (1985) 159 CLR 550 at 582
Morgan & Valverde [2022] FedCFamC1A 133
Rosati v Rosati (1998) FLC 92-804
Saso & Saso [2023] FedCFamC1A 65
Stanford v Stanford (2012) 47 Fam LR 481
Tibb v Sheean (2018) 58 Fam LR 351
Townsend v Townsend [1994] FamCA 144
Weir and Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 107 Date of last submission/s: 26 March 2024 Date of hearing: 25 – 26 March 2024 Place: Canberra Counsel for the Applicant: Mr J Eley Solicitor for the Applicant: Alliance Family Law Respondent: No appearance Independent Children’s Lawyer Legal Aid ACT ORDERS
CAC 509 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JELAVIC
Applicant
AND: MS JELAVIC
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
FINAL PARENTING ORDERS
Parental responsibility
1.The Father has sole parental responsibility for the children, X, born in 2009 (“X”) and Y, born in 2012 (“Y”).
2.The Father is to inform the Mother in writing of any major long-term decision which he makes for X and/or Y within 48 hours of the decision being made.
3.The parents will each do all things necessary to support and encourage the children living with and spending time with the other parent in accordance with these Orders and:
(a)In the event Y or X is not in the care of the parent in whose care they are meant to be pursuant to these orders, the other parent will actively encourage them to return to the ordered or agreed living/spend time arrangements;
(b)Further to Order 3(a) above, each parent will…
Continue reading Jelavic & Jelavic
Sign in free to access the full text
- AGLC
- Jelavic & Jelavic [2024] FedCFamC2F 658
- Case
- [2024] FedCFamC2F 658
- Decision Date
CaseChat Overview and Summary
The court determined that Mr Jelavic should have sole parental responsibility for the children, with specific obligations to inform Ms Jelavic of major decisions and to facilitate their participation in a post-separation counselling program. The children were to live primarily with their father, with limited visitation rights for the mother, subject to her compliance with certain conditions, including mental health treatment and parenting courses. The court also outlined detailed arrangements for the division of the parties' properties, including the sale of investment properties, the allocation of capital gains tax liabilities, and the transfer of ownership of certain residential and business properties.
In its reasoning, the court emphasised the significant behavioural challenges faced by the children post-separation, which had markedly improved under the care of the father. This improvement was a key factor in granting sole parental responsibility to the father. The court also considered the unequal financial contributions of the parties and the necessity of certain assets for the father's ability to support the children. The detailed orders regarding property division were designed to ensure that these considerations were adequately reflected.
The final orders granted Mr Jelavic sole parental responsibility and primary residence of the children, with specific visitation rights for Ms Jelavic contingent on her meeting certain conditions. The property division orders detailed the sale of specified properties, the allocation of proceeds, and the transfer of other assets, all aimed at achieving an equitable outcome that considered the unique circumstances of the case.
Orders
Orders of the court
CAC 509 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR JELAVIC
Applicant
AND:
MS JELAVIC
Respondent
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
FINAL PARENTING ORDERS
Parental responsibility
1. The Father has sole parental responsibility for the children, X, born in 2009 (“X”) and Y, born in 2012 (“Y”).
2. The Father is to inform the Mother in writing of any major long-term decision which he makes for X and/or Y within 48 hours of the decision being made.
3. The parents will each do all things necessary to support and encourage the children living with and spending time with the other parent in accordance with these Orders and:
(a) In the event Y or X is not in the care of the parent in whose care they are meant to be pursuant to these orders, the other parent will actively encourage them to return to the ordered or agreed living/spend time arrangements;
(b) Further to Order 3(a) above, each parent will then provide an update by text message to the other parent no less than once every 24 hours until Y and/or X return to the ordered or agreed living/spend arrangements and/or is returned to school.
Living arrangements & supports
4. Y and X will live with the Father.
5. Y and X will spend time with the Mother as follows:
(a) On no more than two occasions each fortnight and for periods of no more than four hours on dates and times nominated by the Mother in writing no less than 21 days in advance (and the Mother shall not nominate two consecutive four hour times on the same day);
(b) The Mother’s nominated time with the children as per Order 5(a) above is to occur between 5.30pm and 8pm on Fridays, between 9.30am and 8pm on Saturdays and between 9.30am and 5.30pm on Sundays.
(c) On the children’s birthdays, the Mother’s birthday, Christmas, Easter Sunday and Mother’s Day between the hours of 5.30pm and 8pm when the event falls on a school day and 2pm to 8pm when the event falls on a date the children are not required to attend school.
A. AND IT IS NOTED Upon the Mother complying with Orders 23, 24, and 25 herein, the Father intends to agree to the children spending time with Mother as per the below, at all times taking into account the children’s ages and their views:
(a) On dates and times nominated by the Mother in writing no less than 21 days in advance;
(b) The Mother’s nominated time with the children as per Item (a) above is to occur between 5.30pm on Friday until 5.30pm on Sunday and in respect of such time:
(i) The time shall occur not more frequently than each alternate weekend;
(ii) The time can include, but shall not be in addition to the times specified in Item (iii) below;
(iii) For the first 5 occasions the children shall spend no more than a consecutive 24-hour period with the Mother; and
(iv) After the first 5 occasions, the children may spend up to a consecutive 48-hour period with the Mother.
(c) On the children’s birthdays, the Mother’s birthday, Christmas, Easter Sunday and Mother’s Day between the hours of 5.30pm and 8pm when the event falls on a school day and 2pm to 8pm when the event falls on a date the children are not required to attend school.
6. The Mother shall not nominate to spend time with the children on dates that the children are scheduled to attend major family events and the Father shall give the Mother not less than 35 days prior written notice of any major events and family events that the children are to attend.
7. The Father may not schedule a major family event at the times specified in Order 5(c).
8. All changeovers shall take place at the “C Store” in Suburb B, ACT.
9. The parents will do all things necessary to comply with any recommendation made by Child & Youth Protective Services (“CYPS”).
10. The Father will do all acts and things necessary to facilitate the children’s completion of D Service Program/Post-Separation counselling for children program.
Travel
11. Each parent will give the other parent one days notice in writing if they intend to travel with Y and/or X outside of the ACT/City E area for a period of over 24 hours and the travelling parent shall provide the other parent with an alternative contact telephone number, address and basic itinerary.
Other parenting orders
12. The parents are restrained by injunction from using physical discipline on Y or X.
13. Except in the event of an emergency, the parents shall solely communicate with each other regarding the children by way of the parenting application AppClose, and for the purposes of this Order the parents are to do all acts and things to be registered and remain registered with the AppClose parenting application.
14. The Mother and Father will keep each other informed in writing of their contact telephone number, email address and residential address and will advise each other within 24 hours of any changes to those details.
15. Each parent will forthwith advise the other in writing in the event of the following occurring:
(a) Y or X being seriously injured or falling seriously ill;
(b) Y or X requiring urgent medical treatment by a doctor and/or ambulance crew; and/or
(c) Y or X being admitted to hospital or attending the emergency department.
16. During the time the children are with each parent, that parent shall:
(a) Speak of the other parent, their partner and family members respectfully.
(b) Not denigrate or insult the other parent, their partner or other family members in the presence or hearing of the children and use their best endeavours to ensure that others do not do so either.
17. The Father will advise the Mother of the names and addresses of any new medical practitioner or other professional persons dealing with the children within 48 hours of the children’s engagement with them.
18. This Order shall be sufficient authority for all schools, medical practitioners and any other professional persons dealing with Y or X to provide to the Mother any and all information in relation to the children, including but not limited to school reports, letters to parents, invitations to events, notices of parent teacher interviews, medical information, medication information, diagnoses, and treatment recommendations.
19. Further to the above Order, the Father shall provide in writing any authorisation that is required to ensure that the Mother can access information from the relevant services.
20. Each parent be at liberty to attend any school event to which parents are ordinarily invited.
21. Each parent be at liberty to attend any extra-curricular activities in which Y or X are involved.
22. The Father is authorised to provide a copy of these Orders to any school, medical, allied health or extra-curricular provider attended upon by the children.
23. The Mother will do all things necessary to engage in treatment with a clinical psychologist and provide the Father with a letter from her psychologist confirming:
(a) The psychologist has been provided with a copy of these Orders and the Family Reports of Mr F in accordance with Order 24; and
(b) the Mother has attended upon the psychologist for no less than six sessions; and
(c) The psychologist’s view as to whether the current state of the Mother’s mental health is such that she is able to safely care for the children overnight and their opinion as to anything else that may be relevant to the Father’s decision regarding whether the children spend further time with the Mother.
24. The Mother is to provide copies of these Orders and the Family Reports of Mr F in these proceedings to her treating medical professionals, including her clinical psychologist for the purposes of Order 23 above.
25. The Mother shall forthwith complete the Keeping Kids in Mind (KKIM) and Talking With Your Kids (TWYK) parenting courses and shall provide a certificate confirming her completion to the Father.
26. That within 28 days of the date of these Orders, the ICL is to meet with the children in order to explain the effect of the Orders and notations made by the court in relation to parenting matters and having met with the children pursuant to this Order, the appointment of the ICL is discharged.
FINAL PROPERTY ORDERS
G Street Property
27. The Wife retain the property known as and situated at G Street, Suburb H, ACT (G Street Property), being further particularised as G Street, Suburb H in the Australian Capital Territory.
28. The Wife shall indemnify and forever keep indemnified the Husband in respect of all liabilities of whatsoever nature and kind, of and associated with the G Street Property, including but not limited to any loan payable to Mr J.
K Street Property
29. The Husband is hereby appointed the Trustee for Sale of the property situated at and known as K Street, Suburb L, NSW being the whole of the land more particularly described as Lot …, in Strata Plan … at Suburb L in the state of New South Wales (K Street Property) and will do all acts and things to cause the sale of the K Street Property for the best price reasonably achievable at market.
30. Upon the settlement of the sale of the K Street Property, the proceeds of sale be paid in the following manner and priority:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Second, to pay the usual adjustments for rates between the Husband and the Wife as sellers and the purchaser pursuant to the Contract for Sale;
(c) Third, in payment of such sums as are required to discharge the loans secured by mortgage against the property, including:
(i) M Bank loan account #...10; and
(ii) M Bank loan account #...21;
(d) Fourth, in payment of one-half (50%) of the total amount owing to the M Bank loan account #...83 (or such sum of the balance owing for that loan if the N Street property sells before the K Street Property);
(e) Fifth, in payment of the sum of $60,000 to the Husband to be held on trust for the parties for the payment of capital gains tax pursuant to Order 44;
(f) Sixth, of the balance then remaining:
(i) 60 per cent to the Husband; and
(ii) 40 per cent to the Wife.
31. Pending the sale of the K Street Property:
(a) The Husband and Wife are hereby restrained from further encumbering the K Street Property; and
(b) The Husband has the sole right to occupy the K Street Property to the exclusion of the Wife for the purposes of preparing the property for sale.
N Street Property
32. The Husband is hereby appointed the Trustee for Sale of the property situated at and known as N Street, Suburb L NSW being the whole of the land more particularly described as Lot …, in Deposited Plan … at Suburb L in the state of New South Wales (N Street Property) and will do all acts and things to cause the sale of the N Street Property for the best price reasonably achievable at market.
33. Upon the settlement of the sale of the N Street Property, the proceeds of sale be paid in the following manner and priority
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Second, to pay the usual adjustments for rates between the Husband and the Wife as sellers and the purchaser pursuant to the Contract for Sale;
(c) Third, in payment of such sum as is required to discharge the loan secured by mortgage against the property, namely M Bank loan account #...91;
(d) Fourth, in payment of one-half (50%) of the total amount owing to M Bank loan account #...83 (or such sum of the balance owing for that loan if the K Street property sells before the N Street Property)
(e) Fifth, in payment of the sum of $71,000 to the Husband to be held on trust for the parties for the payment of capital gains tax pursuant to Order 44;
(f) Sixth, of the balance then remaining:
(i) 60 per cent to the Husband; and
(ii) 40 per cent to the Wife.
34. Pending the sale of the N Street Property:
(a) The Husband and Wife are hereby restrained from further encumbering the N Street Property; and
(b) The Husband has the sole right to occupy the N Street Property to the exclusion of the Wife for the purposes of preparing the property for sale.
O Street Property
35. Within 90 days of the settlement of the sale of the latter of the N Street and K Street properties, the parties shall do all acts and things and sign all documents necessary to transfer to the Husband, at the expense of the Husband, all of the Wife’s right, title and interest, in the property known as and situated at O Street, Suburb P in the State of Queensland, being the whole of the land and further particularised as Lot …, on Survey Plan … on Title Reference … (O Street property).
36. Contemporaneously with the transfer of the O Street property to the Husband, the Husband shall do all acts and things and sign all documents necessary to refinance the loan secured by mortgage against the O Street property so to release the Wife from all liability in respect of the O Street property.
37. Pending the transfer of the O Street property to the Husband:
(a) The Husband shall have the sole use and occupation of the O Street property;
(b) Both parties are restrained from further encumbering the O Street property; and
(c) The Husband shall meet the payment of all liabilities of and associated with the O Street property.
Q Street Property
38. Within 90 days of the settlement of the sale of the latter of the N Street and K Street properties, the parties do all things necessary to transfer to the Husband at the expense of the Husband, all of the Wife’s right, title and interest, for the property known as and situated at Q Street, Suburb L in the state of New South Wales, being the whole of land and further particularised as Lot …, in Deposited Plan …, Certificate Title Folio … (Q Street Property).
39. Contemporaneously with the transfer of the Q Street property to the Husband, the Husband shall do all acts and things and sign all documents necessary to refinance the loan secured by mortgage against the Q Street property so to release the Wife from all liability in respect of the Q Street property.
40. Pending the transfer of the Q Street property to the Husband:
(a) The Husband shall have the sole use and occupation of the Q Street property;
(b) Both parties are restrained from further encumbering the Q Street property; and
(c) The Husband shall meet the payment of all liabilities of and associated with the Q Street property.
Payment to the Wife
41. Contemporaneously with the transfer of the Q Street property to the Husband, the Husband shall pay to the Wife $380,000, with the following amounts to be deducted from the payment to the Wife:
(a) $5,000 for payment of the cost order made in favour of the Husband on 1 March 2023;
(b) $8,613 for payment of the Wife’s half share of the expert reports paid by the Husband in these proceedings; and
(c) $10,406.82 for payment of the Husband’s costs with respect to proceedings on and related to 6 November 2023.
Capital Gains Tax
42. The parties shall do all acts and things and sign all documents necessary to lodge their personal income tax returns for all financial years up to and including the financial year ended 30 June 2023 by no later than 30 June 2024.
43. To crystallise the capital gains tax liabilities payable by the parties, the parties shall do all acts and things and sign all documents necessary to lodge their personal income tax returns as follows:
(a) For the financial year ended 30 June 2024, by no later than 1 September 2024; and
(b) For the financial year ended 30 June 2025, by no later than 1 September 2025.
44. Upon a party receiving a Notice of Assessment from the Australian Taxation Office following the lodgment of the personal income tax returns pursuant to Order 43 evidencing the capital gains tax payable by them for the sale of the K Street and N Street properties:
(a) The Husband is authorised to pay his capital gains tax liability from the funds held by him pursuant to Orders 30(e) and 33(e);
(b) Within 7 days of the Wife providing the Husband with evidence of her capital gains tax liability, the Husband shall pay to the Wife such sum as is equivalent to the Wife’s capital gains tax liability from the funds held by him pursuant to Orders 30(e) and 33(e);
(c) If there is a shortfall in the funds held by the Husband to make the payment to the Wife pursuant to Order 44(b), then the Husband shall pay to the Wife such sum as is equivalent to 60 per cent of the shortfall; and
(d) If there are any surplus funds held by the Husband from the funds held by him pursuant to Orders 30(e) and 33(e) after the payment of all capital gains tax liabilities arising from the sale of the K Street and N Street properties, then the surplus funds shall be paid in the proportion of 60 per cent to the Husband and 40 per cent to the Wife.
R Pty Ltd
45. Within 14 days of the date of these Orders, the Wife shall do all acts and things and sign all documents necessary to:
(a) Resign as a director of R Pty Ltd; and
(b) Transfer all of her shareholding in R Pty Ltd to the Husband.
46. Following the Wife resigning as a director and transferring her shareholding in R Pty Ltd to the Husband pursuant to Order 45, the Husband shall indemnify and forever keep indemnified the Wife in respect of all liabilities of and associated with R Pty Ltd.
Property to be Retained the Husband
47. The Husband shall retain for his sole use and benefit to the exclusion of the Wife, the following:
(a) All bank accounts held in his personal name;
(b) The S Company shares;
(c) Motor Vehicle 1 ;
(d) All of the assets and goodwill of the business trading as R Pty Ltd ACT;
(e) All chattels, furniture and household goods in the Q Street, K Street, N Street and O Street properties; and
(f) His superannuation entitlements.
Property to be Retained the Wife
48. The Wife shall retain for her sole use and benefit to the exclusion of the Husband, the following:
(a) All bank accounts held in her personal name;
(b) Motor Vehicle 2;
(c) Motor Vehicle 3;
(d) All chattels, furniture and household goods in the G Street property; and
(e) Her superannuation entitlements.
Home Contents
49. That within 14 days of Final Orders being made, the Wife shall deliver up to the Husband, the items listed in Annexure “A” to these Orders.
Catchall
50. Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:
(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these Orders;
(b) All insurance policies to become the sole property of the owner named therein;
(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Section 106A order
51. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect within 14 days of being requested to do, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of this Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
Annexure A – Home Contents
Home Contents to be returned to the Husband within 14 days:
(a) His Passport
(b) Two sets of keys for his Motor Vehicle 1.
(c) His collection contained on one of the two audio systems together with the set of speakers.
(d) His and family pre-digital photos.
(e) Copies of family video tapes and portable hard drives with digital family photos and videos.
(f) His hobby photographic equipment, bags, accessories etc.
(g) His mobile phone containing a lot of digital photos.
(h) Envelope containing $3,158.40 of T Group monies that were in the Husband’s possession as treasury of the association and in the office drawer of Q Street.
(i) Nail gun.
(j) Tile cutter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.