FAMILY COURT OF AUSTRALIA
| PETROVIC & PETROVIC | [2019] FamCA 109 |
| FAMILY LAW – CHILDREN – Final parenting proceedings – Best interests of the children – Where father perpetrated significant family violence – Where father has family violence related criminal history – Where children have had no contact with father for some years – Where consideration of impact on mother and the children of order for children to have time with the father – Where consideration of primary protective concerns – Where mother to have sole parental responsibility – Where children to live with mother – Where the children to have no time with the father. FAMILY LAW – PROPERTY – Property adjustment – Where consideration of applicable principles – Where husband remained in occupation of home for years since separation – Where assessment of contributions favours the wife – Where further adjustment to wife to reflect relevant section 75(2) factors – Where wife appointed to sell the matrimonial home – Where wife to undertake repairs to matrimonial home as reasonably advised by the listing agent – Where proceeds of sale to be divided as to 60 per cent to the wife and the balance to the husband. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 75, 79 |
| Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 Bevan & Bevan [2014] FamCAFC 19 Blinko [2015] FamCAFC 146 Chapman & Chapman [2014] FamCAFC 91 Dickons & Dickons [2012] FamCAFC 154 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Pandelis & Pandelis [2018] FamCAFC 66 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms Petrovic |
| RESPONDENT: | Mr Petrovic |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Carroll |
| FILE NUMBER: | PAC | 1425 | of | 2015 |
| DATE DELIVERED: | 1 March 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 and 24 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harris |
| SOLICITOR FOR THE APPLICANT: | Mahony Family Lawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | Mr Petrovic in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Crawford Ryan Lawyers Pty Ltd |
Orders
Parenting
That the mother Ms Petrovic have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010.
That the children live with the mother.
That the children spend no time with the father.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching, contacting or communicating with the children or coming within 200 metres of the children’s home, school or extracurricular activity and from harassing, molesting, stalking or physically harming or threatening to harm any of the children and it is noted that this order is an order made for the personal protection of the children to…
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- AGLC
- PETROVIC & PETROVIC [2019] FamCA 109
- Case
- [2019] FamCA 109
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders, specifically whether the children should have any time with the father, considering the primary protective concerns for the children and the mother. In relation to property, the court needed to assess the applicable principles for property adjustment, including the parties' contributions and relevant section 75(2) factors, and to make orders for the sale of the matrimonial home and the division of the proceeds.
In its parenting orders, the court found that it was in the best interests of the children for the mother to have sole parental responsibility, for the children to live with the mother, and for the children to spend no time with the father. This decision was informed by the father's history of family violence and criminal conduct, and the need to protect the children and the mother. The court made orders restraining the father from approaching, contacting, or communicating with the children or the mother, and from coming within 200 metres of their homes or schools, with provisions for arrest without warrant upon reasonable belief of breach. In the property proceedings, the court assessed the parties' contributions as favouring the wife and ordered a further adjustment to reflect section 75(2) factors. The wife was appointed as Trustee for Sale of the matrimonial home, with directions to undertake necessary repairs as advised by the listing agent. The proceeds of sale were to be divided 60 per cent to the wife and the balance to the husband, after payment of sale expenses, liabilities, and contributions to the Independent Children's Lawyer's costs. The husband was ordered to maintain the property pending sale and to vacate it prior to settlement.
Orders
Orders of the court
Parenting
1.
That the mother Ms Petrovic have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010.
2.
That the children live with the mother.
3.
That the children spend no time with the father.
4.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching, contacting or communicating with the children or coming within 200 metres of the children’s home, school or extracurricular activity and from harassing, molesting, stalking or physically harming or threatening to harm any of the children and it is noted that this order is an order made for the personal protection of the children to which section 68C of the Family Law Act 1975 (Cth) applies and any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm any of the children, may arrest the father without warrant.
5.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching, contacting or communicating with the mother or coming within 200 metres of the mother’s home or place of employment and from harassing, molesting, stalking or physically harming or threatening to harm the mother and it is noted that this order is an order made for the personal protection of the mother to which section 68C of the Family Law Act 1975 (Cth) applies and any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father by either harassing, molesting, stalking or physically harming or threatening to harm the mother may arrest the father without warrant.
6.
By Consent: That the mother provide to the father within 14 days after receipt by her copies of the children’s end semester school report and school photos and, otherwise, advise the father promptly of any serious injury or illness suffered by the children or any of them together with details of any treating medical practitioner or hospital.
7.
By Consent: That there be paid from the proceeds of sale of the parties’ property at Suburb P before any distribution to the parties the sum of $5,949.00 by each party from their respective share of the proceeds of sale to Legal Aid New South Wales and for the purposes of securing this payment Legal Aid New South Wales is at liberty to register a caveat or appropriate notice of this order as against the title to the said property.
Property
8.
That the wife Ms Petrovic be and is hereby appointed Trustee for Sale of the property situate at and known as E Street, Suburb P in the State of New South Wales being the whole of the land comprised in Folio Identifier … for sale by private treaty or auction at the best price reasonably obtainable and for this purpose the said property shall vest in the trustee and the said Ms Petrovic shall do all things necessary and sign all necessary documents to sell the said property and to apply the proceeds of sale in the following manner and priority:
(a) in payment of agent’s commission, advertising and other expenses of the sale;
(b) in payment of reasonable legal costs and disbursements of and incidental to the sale;
(c) in discharge of the mortgage encumbrance secured over the said property, in adjustment of rates and taxes as provided for in the contract for sale;
(d) in payment of the wife’s outstanding credit card and other liabilities more particularly set out in these reasons for judgment at [121];
(e) in payment of 60 per cent of the balance then remaining, less the sum of $5,949.00 being the wife’s contribution to the Independent Children’s Lawyer’s costs as provided for below, to Ms Petrovic; and
(f) in payment of the balance then remaining, less the sum of $5,949.00 being the wife’s contribution to the Independent Children’s Lawyer’s costs as provided for below, to the husband Mr Petrovic.
9.
That pending sale of the property at Suburb P the husband Mr Petrovic shall:
(a) keep the property in good order and repair having regard to the condition of the property as at the date of these orders, cooperate in all reasonable ways with requests by the selling agent appointed by the wife and/or prospective purchasers including but not limited to providing keys for access and doing all things necessary to facilitate access to the property at all reasonable times for inspection without interference;
(b) be restrained from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the property being effected;
(c) pay as they fall due and payable all mortgage payments, council rates, water rates, utilities and insurances in relation to the said property incurred prior to the date of sale and indemnify the wife from any liability for arrears of such payments with any payment pursuant to this provision payable to the wife by way of indemnity to be deducted from the husband’s share of the proceeds of sale;
(d) vacate the property not less than 21 days prior to the settlement date of the sale of the property with the wife to provide to the husband not less than 28 days’ notice in writing of such settlement date with such writing to be by way of ordinary prepaid post addressed to the husband at the said property; and
(e) that subsequent to vacating the property the husband shall thereafter remain away from the property and not enter upon the said property without the written consent of the wife.
10.
That in the event that either party fails to execute any deed or instrument necessary to give effect to these orders the Registrar of the Family Court of Australia at Parramatta is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such of these instruments in the name of the defaulting party and do all acts and things as may be necessary to give validity to the operation of any deed or instrument necessary to implement these orders.
11.
Liberty to apply as to enforcement or implementation of these orders by application to the Court in chambers in appropriate circumstances.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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