FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yarrow & Yarrow [2021] FedCFamC2F 651
| File number(s): | HBC 188 of 2020 |
| Judgment of: | JUDGE TAGLIERI |
| Date of judgment: | 24 December 2021 |
| Catchwords: | FAMILY LAW – Parenting – where the presumption of equal shared parental responsibility does not apply due to family violence – sole parental responsibility for educational matters – otherwise equal shared parental responsibility is in the children’s best interests. FAMILY LAW – Parenting – with whom children live – where mother seeks to relocate to the Country D with the children – where father opposes relocation and seeks that children live in Australia – where parties previously resided in the Country D and the children were born in there – conflicting positions by mother about relocating to the Country D if children not permitted to do so – finding that relocation is in not the children’s best interests – relocation not permitted –children to live with the father and spend time with the mother in the event that the mother relocates to the Country D. FAMILY LAW – Property – 13 year relationship – one pool approach – where parties hold real property and superannuation and non-superannuation interests in Australia and the Country D – orders made adjusting the parties’ assets – a just and equitable adjustment requires distribution of 54% in favour of father and 46% in favour of mother if mother relocates or 57% in favour of the mother and 43% in favour of the father, if the mother does not relocate – orders accordingly. |
| Legislation: | Child Support (Assessment) Act 1989 (Cth), s 29A Evidence Act 1995 (Cth), s 140 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.04 Family Law Act 1975 (Cth), ss 60B(1), 60CA 60CC, 65DAA 65DAC Superannuation Industry (Supervision) Act1993 (Cth), s 19 |
| Cases cited: | A & A: Relocation Approach (2000) FLC 93-035 Bevan and Bevan (2013) FLC 93-545 Dieter & Dieter [2011] FamCAFC 82 |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 219 |
| Date of hearing: | 7-9 September 2021, 15 September 2021, 15 October 2021, and 2 November 2021 |
| Place: | City E |
| Counsel for the Applicant: | Mr P Theobald |
| Solicitor for the Applicant: | R Lawyers |
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- Yarrow & Yarrow [2021] FedCFamC2F 651
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- [2021] FedCFamC2F 651
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CaseChat Overview and Summary
The court found that the presumption of equal shared parental responsibility did not apply due to the presence of family violence, but it was in the children's best interests to have equal shared parental responsibility otherwise. The court ruled that the mother's relocation to City C was not in the children's best interests and consequently, the relocation was not permitted. The children were to live with the father and spend time with the mother if she relocated. Regarding property division, the court ordered the sale of two properties, one in Australia and one in Country D, and made specific orders for the distribution of the proceeds to achieve a just and equitable outcome.
The court ordered that all prior parenting orders be discharged and established a detailed schedule for the children's living arrangements and time spent with each parent. The father was granted sole responsibility for decisions relating to the children's primary school education, while both parents had shared responsibility for other parenting matters. The court also issued specific instructions for communication between the parties, travel arrangements for the children, and the management of the children's medical and educational information. Finally, the court ordered the payment of a sum of money into a joint account for the children's benefit and detailed the sale and distribution of the parties' properties.
Orders
Orders of the court
HBC 188 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR YARROW
Applicant
AND:
MS YARROW
Respondent
AND
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
24 DECEMBER 2021
THE COURT ORDERS THAT:
1.
That all prior parenting orders in relation to the children W (born in 2013) and X (born in 2016) be and are hereby discharged.
2.
That subject to order 3, Mr Yarrow (“the Father”) and Ms Yarrow (“the mother”) have equal shared parental responsibility for the children W (born in 2013) and X (born in 2016) (“the Children”).
3.
That the father have sole parental responsibility for decisions relating to the children’s primary school education, attendance at B Primary School and extra-curriculum activities undertaken in connection with the school.
4.
That the Father shall inform Ms Yarrow (“the Mother”) of all major long-term decisions and significant issues relating to the children’s primary schooling and extra-curriculum activities undertaken in connection with the school and provide the Mother with advance notice of any changes, as soon as practicable and no later than within 3 days of the change occurring.
5.
THAT the Parents are not required to consult the other when making decisions while the Children are in their care under Order 6 and 7 about issues that are not major long-term issues.
6.
THAT until the mother relocates to City C or if she does not relocate, the children are to live with and spend time with each parent as follows:
(a) During school terms on a rotation of 8 nights in the mother’s care and 6 nights in the father’s care, commencing from and including 26 December 2021.
(b) Half of each term school holiday, the precise arrangements for which are to be agreed between the parties in writing and in default, the mother will have the children for the first week of the holidays and the father for the second week;
BUT subject to the orders below about special occasions;
(c) Half the gazetted Christmas/end of year school holiday, the precise arrangements for which are to be agreed between the parties in writing and in default, the mother will have the children for the second half of the holidays and the father for the first half; BUT subject to the orders below about special occasions.
(d) At Christmas in odd numbered years, on December 24th with the father and on December 25th from 8.30am to 8.30pm with the mother;
(e) At Christmas in even numbered years, on December 24th with the mother and on December 25th from 8.30am to 8.30pm with the father;
(f) At Easter in even numbered years from Thursday before Good Friday at 5:00pm until the Tuesday following Easter at 5:00pm with the Father;
(g) At Easter in odd numbered years from Thursday before Good Friday at 5:00pm until the Tuesday following Easter at 5:00pm with the Mother;
(h) Such other or alternate times as agreed between the parties in writing.
(i) Changeover for the children to be at 5.00pm, except in the case of subparagraph (d) and (e);
(i) with the mother collecting the children at the father’s home at the commencement of her time with the children; and
(ii) the father collecting the children from the mother’s home at the conclusion of her time with them.
7.
That if and after the mother relocates to City C, the children are to live with the father and spend time in person with the mother as follows:
(a) In City E or if agreed in writing, another part of Australia during the Tasmanian Easter school holidays in 2022;
(b) In City E or if agreed in writing, another part of Australia during the Tasmanian July term school holidays in 2022;
(c) In City E or if agreed in writing, another part of Australia commencing mid-December 2022 for 5 weeks;
(d) After February 2023:
(i) Either in City E, City C or if agreed in writing, another part of Australia during the Tasmanian Easter school holidays;
(ii) Either in City E, City C or if agreed in writing, another part of Australia for 4 weeks in the Tasmanian Summer school holidays and then 5 weeks in alternate years thereafter during the Tasmanian summer school holidays;
Transport and travel arrangements when and if the mother relocates to City C
8.
That for the purpose of facilitating the mother’s time with the children pursuant to order 7, the children are permitted to travel overseas to City C provided:
(i) that the children are accompanied by one of their parents or a responsible adult agreed to by prior written agreement of the parties;
(ii) that the father is not required to facilitate the mother’s time with the children pursuant to order 7 or make them available to travel outside of Tasmania to a “hot spot” as declared by the Department of Health of the Commonwealth of Australia or the Tasmanian Government,
9.
That for the purpose of facilitating the mother’s time with the children pursuant to order 7, the children’s passports (Australian, Country D and Nationality K) are to at all times be held by the father and the Registry Manager is authorised to release to the father the passports currently held pursuant to the interim order 5 of the Orders made on 24 April 2020.
10.
That the mother will ensure that the children’s passports return with them to City E, following any period spent in City C with the mother pursuant to order 7.
11.
That the costs of travel, including airfares and any Covid-19 related expenses are paid equally by the parties and for the purpose of paying such expenses the parties may agree to use part or all of the monies referred to in order 29.
Facilitating children’s arrangements
12.
Each party is to advise the other party of any change or residence telephone number or contact email address within 24 hours of such change.
13.
The parties will communicate with each other for all urgent matters regarding the children by way of text message and for this purpose, each party will ensure that at all times they will have reasonable access to a functioning mobile telephone, capable of both giving and receiving calls.
14.
The parties will communicate with each other for all non-urgent matters regarding the children by way of email and for this purpose, each party will ensure that at all times they will have reasonable access to a functioning email account.
15.
When the children are not spending time with the mother as provided in order 6 or 7, the children are to communicate with the mother by telephone or video call between 6:30pm and 7:30pm (Australian Eastern Standard Time ) on any 3 nights of the 7 night week; and
(a) The parties are to agree in writing which nights of the week the telephone or video call is to be made and the device or mobile number on which the children are to be contacted;
(b) the mother is to initiate the communication/telephone call; and
(c) the father is to ensure, except in the case of emergency or real and genuine difficulty, that the telephone or electronic device agreed to be used is fully charged, operational and that the initiated communication/telephone call is answered.
16.
Further and in addition to the time referred to in 15, the children may communicate and spend time with the mother by telephone or video call at any reasonable time as requested and on such request, except in the case of emergency or real and genuine difficulty, the father will ensure that the children communicate with the mother.
17.
Each party will be permitted to remove the children from the State of Tasmania for the purpose of a trip within Australia, providing:
(a) The duration of the absence does not interfere with the live with and spend time arrangements for the children provided for in order 6; and
(b) A written itinerary is provided to the other party at least 14 days prior to departure, identifying the dates of travel, transport to be used and the location the children will be mostly staying during the trip;
(c) For the purpose of this order, neither parent is required to facilitate the children’s travel outside of Tasmania to a “hot spot” as declared by the Department of Health of the Commonwealth of Australia or the Tasmanian Government.
18.
That the parents will each inform the other as soon as practicable of any significant injury, illness or threat to the welfare of the Children and if taken to hospital, then which hospital the child is being seen at.
19.
That each of the parents ensure both parents contact details are provided to and listed with the Children’s school(s), medical and allied health providers.
20.
That both parties are to ensure that they keep the other informed by email or text about treatment recommended by a medical or health professionals relating to any condition affecting the children and follow reasonable recommendations provided by the professionals, including as to:
(a) W’s Medical condition 1; and
(b) X’s Medical condition 2; and
(c) Medical condition 3.
21.
That subject to the school(s) agreement and in accordance with any direction provided by the Children’s school(s) or Education Department, each parent is permitted to request from the Children’s school(s) the Children’s school reports, copies of notices, invitations, school reports, newsletters, photograph order forms and all other documents ordinarily provided to parents, and this Order acts as an authority for same.
22.
That subject to the school(s) agreement and in accordance with any direction provided by the Children’s school(s) or Education Department each parent is hereby authorised to attend the Children’s school activities to which parents are invited, including but not limited to sporting events, concerts and assemblies.
Restraints & Responsibilities
23.
That the parents advise the other parent of any change in contact details, including residential address, email address and telephone number within 24 hours of such change occurring.
24.
That the parents will use civil and respectful language when communicating with any service provider connected to the Children, including, but not limited to the children’s school, doctors and dentists.
25.
That pursuant to s68B of the Family Law Act 1975 for the personal protection of the parties and the children each party is restrained by injunction from making any denigrating critical, abusive, insulting, belittling, or negative comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of either Child or via written correspondence or on social media which may be viewed or accessed by the Children.
26.
The father shall not consume alcohol to the extent that he is unable to care for the children (must not exceed 0.05), or consume illicit substances whilst the children are in his care.
27.
Both parties are to enrol in and complete a co-parenting separately course within 6 months of the date of these orders, which course is to include a component directed towards achieving and improving appropriate and effective communications with the other party.
28.
The mother is to engage in regular psychological treatment with a suitably qualified clinical psychologist for a period of no less than 6 months and follow the psychologist’s treatment and recommendations to address:
(a) traits, behaviours or personality style likely to hamper effective communication and resolution of differences of opinion with others;
(b) rigid thinking or disproportional concerns of perceived risk of harm to the children’s physical needs or well-being.
Property orders
29.
That within 28 days the parties do all things necessary to cause the sum of $10,000 to be paid from the father’s Bank E Account to a joint account with the Commonwealth Bank of Australia in City E with both parties as signatories, which sum is to be held in trust for the benefit of the children.
30.
THAT the property known as and situate at F Street, City E in Tasmania, being all that property comprised in Certificate of Title Volume xxxx Folio xx (“the City E Property”), is to be sold forthwith and for that purpose the parties are to each do all which is necessary to effect the sale of the property including:
(a) THAT within 21 days from the date of this Order the Parties shall jointly appoint by agreement a real estate agent (“the Australian Agent”) as the sole agent to act on behalf of the Parties for the sale and in default of agreement between the Parties about the Australian Agent to be appointed, either party may request the President of the Real Estate Institute of Tasmania, or their nominee, to determine and appoint a real estate agent and the cost of the President’s determination must be shared equally between the Parties.
(b) THAT the following provisions shall apply in relation to the sale of the F Street, City E Property:
(i) The Parties shall forthwith sign all documents as requested by the Australian Agent in relation to the sale of the City E Property.
(ii) The Parties will accept all reasonable recommendations of the Australian Agent with respect to the sale of the City E Property, including the marketing.
(iii) All details of the sale of the City E Property, including but not limited to marketing price, method of sale, method of advertising and sale price, shall be as agreed between the Parties in writing and in default of agreement, as determined by the Australian Agent.
(iv) The reserve price of the City E Property shall be as recommended by the Agent, or as otherwise agreed between the Parties in writing, and failing agreement, the parties shall arrange a joint valuation with a valuer nominated by the President of the Real Estate Institute of Tasmania at the joint cost of the parties.
(c) The Parties shall co-operate in every way with the Australian Agent during the sale of the City E Property, including (without limiting generally the foregoing):
(i) making the key/s available to the Australian Agent;
(ii) allowing the inspection of the City E Property at all reasonable times as requested by the Australian Agent by private appointment;
(iii) ensuring the City E Property, is in a neat and clean condition at the time of inspection by the Australian Agent and prospective purchasers;
(d) as the mother currently resides in the City E Property, she must permanently vacate it by no later than 28 February 2022 and the date of completion for the sale of the property will not be any sooner than this date.
(e) The mother will vacate the City E Property during scheduled viewings/inspections of the City E Property and will not be present during viewings/inspections of the City E Property.
(f) The Parties must appoint R Lawyers to act in the conveyancing for sale of the City E Property, and if the mother refused to do so, this order is to be taken as authority for them to act.
31.
Upon completion of the sale of the City E Property pursuant to these Orders, the proceeds of sale are to be applied and paid by R Lawyers as follows:
(a) First, to discharge the mortgage in favour of the Commonwealth Bank of Australia presently secured over the Title to the City E Property, being mortgage number xxxx;
(b) Second, in payment of the Australian Agent’s costs of the sale, including commission and advertising expenses;
(c) Third, in payment of all reasonable legal costs and disbursements incurred in relation to the sale;
(d) Fourth, in payment of any outgoings payable, including arrears for the same, during the course of the conveyance, including but not limited to council rates, land tax, and water and sewerage rates; and
(e) Fifth, the balance sale proceeds are to be paid and distributed to achieve a distribution of 54% to the father and 46% to the mother.
32.
THAT from the date of these Orders until completion of the sale and transfer of the City E Property the mother shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, with respect to the City E Property, including but not limited to mortgage loan repayments, council rates, land tax and insurance premiums.
33.
THAT the property known as and situate at G Road, City C in the Country D (“the City C Property”) is to be sold forthwith and for that purpose the parties are to each do all which is necessary to effect the sale of the property including:
(a) THAT the father and the mother (hereafter referred to as “the Parties”) do all such acts and sign all such documents as may be required to ensure that the property known as and situate at G Road, City C in the Country D (“the City C Property”) is listed for sale within 21 days from the date of these Orders.
(b) THAT within 21 days from the date of this Order, and unless a Real Estate Agent has been agreed between the Parties’ in writing, the Parties appoint H Estate Agents (“the Agent”), as the sole agent to act on behalf of the Parties for the sale of the City C Property and the following shall apply in relation to the sale of the City C Property:
(c) a. The Parties shall forthwith sign all such reasonable documents as requested by the Agent in relation to the sale of the City C Property;
(d) The Parties will accept all reasonable recommendations of the Agent with respect to the sale of the City C Property, including the marketing.
(e) All details of the sale of the City C Property, including but not limited to marketing price, method of sale, method of advertising and sale price, shall be as agreed between the Parties in writing and in default of agreement, as recommended by the Agent;
(f) The Parties will agree on a sale price of the City C Property as may be nominated by the Agent or as otherwise agreed between the Parties in writing, and failing agreement, the value shall be determined by a valuer/surveyor as may be nominated by the T Surveyors at the joint cost of the parties;
(g) The Parties shall co-operate in every way with the Agent, including (without limiting generally the foregoing):
(i) making the key/s available to the Agent;
(ii) allowing the inspection of the City C Property at all reasonable times as requested by the Agent by private appointment;
(iii) ensuring the City C Property, including the grounds are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers.
34.
That the mother is not to occupy the City C Property in the event that she relocates to City C before it is sold.
35.
Upon completion of the sale of the City C Property pursuant to order 33, the proceeds of sale will be paid and distributed in the following manner and priority:
(a) First, to discharge the mortgage in favour of Bank E presently secured over the Title to the City C Property;
(b) Second, in payment of real estate agent’s costs of the sale, including commission and advertising expenses;
(c) Third, in payment of all reasonable legal costs and disbursements incurred in relation to the sale;
(d) Fourth, in payment of any outgoings payable, including arrears for the same, during the course of the conveyance, including but not limited to council tax, land tax, and water and sewerage rates;
(e) Fifth, such estimated sum which is owing, or becomes owing, for Capital Gains Tax liability in relation to the sale of the City C Property, which is to be transferred to R Lawyers, as solicitors for the father, to be held in trust, pending determination of the Capital Gains Tax Liability Amount; and
(f) Sixth, the balance sale proceeds is to be transferred and held in the trust account of R Lawyers, to be distributed in accordance with the terms of these orders and to achieve an overall and final adjustment of the net pool of assets as identified in the schedule marked “A” and the judgment;
(g) Despite subparagraph f of this order, if the parties notify R Lawyers and agree in writing that a partial distribution can be made of the balance sale proceeds before the final distribution, Wallace, Wilkinson and Webster are to make a partial distribution accordingly but are not required to make the partial distribution if the parties have not agreed all terms of such partial distribution, including the amount.
36.
That if by 4pm 31 January 2022, the mother files with the court and serves on the father’s solicitors, a written undertaking that she will not relocate to City C earlier than 31 December 2025, a final distribution of the balance proceeds of sale of the City C property according to Order 35 is to be made so to achieve a final adjustment of the parties total net assets as identified in the schedule marked “A” which amounts to 57% to the mother and 43% to the father.
Note: if the mother files the undertaking referred to in this order after 4pm on 31 January 2022 or in terms inconsistent with this order, the final distribution of the balance proceeds of sale of the City C property are to be made in accordance with order 37.
37.
That in the event that the mother does not comply with order 36, the final distribution of the balance proceeds of sale of the City C property is to be made so to achieve a final adjustment of the parties total net assets as identified in the schedule marked “A” which amounts to 54% to the father and 46% to the mother.
38.
The parties are to each do all that which is necessary, including signing all documents, giving authorisations or taking any other actions to give effect to these orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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