Pitrec and Pitrec - [2010] FamCA 1231

FAMILY COURT OF AUSTRALIA

PITREC & PITREC

[2010] FamCA 1231

FAMILY LAW – CHILDREN – Interim
FAMILY LAW – PROPERTY – Interim – Exclusive occupation

APPLICANT:

Mr Pitrec

RESPONDENT:

Ms Pitrec

FILE NUMBER:

SYC

5873

2010

DATE DELIVERED:

16 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

5 October 2010,
3 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Constantine G Pavlis & Co

COUNSEL FOR THE RESPONDENT:

Mr Harper, Ms Christie

SOLICITOR FOR THE RESPONDENT:

Byrnes & Cox Lawyers

Orders

That all existing orders in relation to the children:
J born … February 2005
A born … February 2009
R born … February 2009
(‘the children’) are discharged.

Pending further order:

That the children live with the mother at all times other than the periods specified in order 3, during which they will live with the father.
That the children live with the father during the following periods:
3.1from 5:00pm on Friday until 9:00am on Monday each alternate weekend, commencing on 19 November 2010 with the exception of 25 and 26 December 2010
3.2from 5:00pm on Wednesday until 9:00am on Thursday in each week
3.3from 1:00pm on 25 December until 9:00am on 26 December 2010 and each Christmas period thereafter
3.4for three (3) hours on each child’s birthday, being from 9:00am until 12:00noon unless J is at school, in which case the hours will be 4:00pm until 7:00pm unless the parties otherwise agree in relation to the children’s time with the father on their birthdays
4.1 That the father collect the children from the mother at the front of … M Street at the commencement of all periods of residence with him.
4.2That the father return J to school at the commencement of all periods of residence prescribed by orders 3.1 and 3.2 and then return A and R to the mother at the front of … M Street.
4.3That the parties otherwise effect changeovers at the front of … M Street.
That the mother have exclusive occupation of the former matrimonial home at M Street in the State of New South Wales (‘the home’).
That the father make the following payments:
6.1mortgage instalments, rates and insurance in respect of the home
6.2loan instalments in respect of the motor vehicle used by the mother
6.3a sum of $800 net per week to the mother
That these proceedings are transferred to the Federal Magistrates Court at Newcastle, to be listed before FM Coakes in Port Macquarie on Thursday 25 November 2010 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Pitrec & Pitrec is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5873 of 2010

MR PITREC

Applicant

And

MS PITREC

Respondent

REASONS FOR JUDGMENT

the proceedings

These proceedings concern interim parenting orders, competing applications for exclusive occupation of the former matrimonial home, interim financial relief and change of venue from…

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 Pitrec and Pitrec

Details

AGLC: Pitrec and Pitrec [2010] FamCA 1231
Case: [2010] FamCA 1231
Decision Date: 16 November 2010

CaseChat Overview and Summary

In *Pitrec and Pitrec*, Stevenson J considered orders relating to the children J, A, and R, and the former matrimonial home. The dispute concerned the living arrangements for the children and the occupation of the home following the parties' separation.

The court was required to determine the parenting arrangements for the three children, including their residence with each parent and the specific times and conditions for changeovers. Additionally, the court had to make orders regarding the exclusive occupation of the former matrimonial home and financial arrangements, including mortgage payments, insurance, loan instalments, and weekly spousal maintenance.

Stevenson J discharged all existing orders concerning the children and made new orders for their residence with the mother, save for specified periods with the father, which included alternate weekends, mid-week overnight stays, Christmas periods, and time on each child's birthday. The court also ordered the mother to have exclusive occupation of the former matrimonial home and directed the father to meet certain financial obligations, including mortgage instalments, rates, insurance, and a weekly payment to the mother. Finally, the proceedings were transferred to the Federal Magistrates Court.

Orders

Orders of the court

That all existing orders in relation to the children:

J born … February 2005

A born … February 2009

R born … February 2009

(‘the children’) are discharged.

Pending further order:

That the children live with the mother at all times other than the periods specified in order 3, during which they will live with the father.

That the children live with the father during the following periods:

3.1 from 5:00pm on Friday until 9:00am on Monday each alternate weekend, commencing on 19 November 2010 with the exception of 25 and 26 December 2010

3.2 from 5:00pm on Wednesday until 9:00am on Thursday in each week

3.3 from 1:00pm on 25 December until 9:00am on 26 December 2010 and each Christmas period thereafter

3.4 for three (3) hours on each child’s birthday, being from 9:00am until 12:00noon unless J is at school, in which case the hours will be 4:00pm until 7:00pm unless the parties otherwise agree in relation to the children’s time with the father on their birthdays

4.1 That the father collect the children from the mother at the front of … M Street at the commencement of all periods of residence with him.

4.2 That the father return J to school at the commencement of all periods of residence prescribed by orders 3.1 and 3.2 and then return A and R to the mother at the front of … M Street.

4.3 That the parties otherwise effect changeovers at the front of … M Street.

That the mother have exclusive occupation of the former matrimonial home at M Street in the State of New South Wales (‘the home’).

That the father make the following payments:

6.1 mortgage instalments, rates and insurance in respect of the home

6.2 loan instalments in respect of the motor vehicle used by the mother

6.3 a sum of $800 net per week to the mother

That these proceedings are transferred to the Federal Magistrates Court at Newcastle, to be listed before FM Coakes in Port Macquarie on Thursday 25 November 2010 at 9.30am.

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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