Cormick & Powlett
[2021] FedCFamC1F 28
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cormick & Powlett [2021] FedCFamC1F 28
File number(s): MLC 6378 of 2019 Judgment of: HARTNETT J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – PARENTING – where the Applicant husband sought an order for equal shared parental responsibility of the children and sought equal time with the children – where the Respondent wife sought sole parental responsibility of the children and that the children live with the wife – family violence – parties have little ability to communicate effectively – dispute over education and medical treatment of daughter – sole parental responsibility for the children to the wife – the children live with the wife – the children spend substantial and significant time with the father – non-denigration – therapeutic counselling – best interests of the children – Orders.
FAMILY LAW – PROPERTY SETTLEMENT– Just and equitable – where the husband seeks equal division of asset pool– where the wife challenges an equal division and seeks an apportionment to her of 65 per cent – family violence by the husband impacted on wife’s capacity to earn – where the wife sought the return of a family heirloom – 63/37 adjustment of asset pool in favour of the wife due to contributions and future needs – where both parties agree that the superannuation be equalized – Orders.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75(2),79(1), 79(2), 79(4), 90SM, 60B, 60CA, 60CC, 61DA
Family Law Rules 2004 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93-622 at 79, 703
Bell & Nahos [2016] FamCAFC 244
Mulvany & Lane (2009) FLC 93-404
Stanford v Stanford (2012) 247 CLR 108
Suell & Suell (Re-Opening) [2009] FamCA 55
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 252 Date of hearing: 19 to 23 April 2021 Submissions of the husband: 21 May 2021 Submissions of the wife: 21 May 2021 Submissions of the ICL: 14 May 2021 Husband’s application to re-open the case: 18 August 2021 (Application in a Case)
15 September 2021 (Amended Application in a Case)Date of order as to re-opening the case:: 1 October 2021 Place: Melbourne Counsel for the husband: Ms Wiener Solicitor for the husband: MMH Lawyers Counsel for the wife: Ms Colla Solicitor for the wife: Lakey Family Law and Mediation Counsel for the ICL: Ms Renou Solicitor for the ICL: Autumn Legal ORDERS
MLC 6378 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CORMICK
Applicant
AND: MS POWLETT
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders are discharged.
2.The Respondent mother (“the mother”) have sole parental responsibility for the children, X born in 2012 and Y born in 2015 (“the children”).
3.The mother is to advise the Applicant father (‘the father”) in writing as soon as practicable about any major long-term issues relating to their care, welfare and development, and in particular, their education, health and medical treatment. The father is invited to provide any input into such decisions by email within 14 days, or in the case of an emergency within 7 days. The mother will make the decision taking this input into account and advise the father of the decision made.
4.For the avoidance of doubt, only the mother’s consent is required for any medical or allied treatment for the children, together with educational decisions.
5.The children live with the mother.
6.The father communicate with the mother prior to altering the children’s presentation and is restrained from doing so without the mother’s consent. Presentation includes haircuts and hair colouring/dyeing, tattoos, ear and body piercing and other presentation altering interventions that require an adult’s consent.
7.For the avoidance of doubt:
(a)the mother’s consent is only required for any decision relating to the children’s medical (or allied) treatment (save for emergencies), education, religious training, their presentation/grooming, and obtaining of passports; and
(b)when the children are spending time with either of the mother or father, during that time neither parent needs to consult the other with respect to day-to-day decision made in relation to the children (which do not pertain to their long term care, welfare or development).
8.Subject to order 3 herein, the mother and father do all such things to maintain the children’s enrolment, education and attendance at K School, Suburb TT.
9.The father be at liberty subject always to school policy and/or any extant order to contact the children’s school to obtain school reports, school photograph order forms and other information parents are ordinarily entitled to, at his own expense, if any, with such information being accessed by him directly via his own personal link with the school portal wherever practicable.
10.The father be at liberty to attend the children’s parent/teacher interviews by appointment and always in accordance with school policy and any extant order.
11.The father spend time with the children during school terms as follows:
(a)commencing 23 October 2021, each alternate weekend from the conclusion of school Friday (or 6pm if Friday is a non-school day) until before school Monday (or 6pm if Monday is a non-school day);
(b)commencing 1 November 2021, each alternate Monday from after school Monday (or 6pm if Monday is a non-school day) to before school Tuesday (extended to 6pm if the Tuesday is a non-school day);
(c)commencing from 1 July 2023, from each alternate Thursday from after school or 3pm until Tuesday before school or 9am; and
(d)as may be otherwise agreed in writing by the parties.
12.Time pursuant to order 11 herein shall be and is hereby suspended during all Term 1 to Term 4 inclusive school term holiday periods and shall recommence as though the term time had not been interrupted.
13.Unless otherwise agreed in writing by the parties, including short messaging service (“SMS”), 60 days prior to the first day of the given school term holiday, the father shall spend time with the children one half of each of the Term 1, Term 2 and Term 3 holidays in sync with the half in which the father’s usual weekend time set out in order 11(a) herein would usually occur (save for the suspension referred to in order 12 herein) and otherwise the children shall be in the care of the mother during school term holiday periods.
14.The father shall spend time with the children in the Term 4 2021 summer holiday period on a week about (7 day) rotation period as follows:
(a)in weeks 1, 2, 3 and 5 for Term 4 summer holiday periods in odd numbered years from 12 noon and otherwise the children shall be in the care of the mother;
(b)in weeks 2, 4 and 6 of the Term 4 summer holiday periods in even numbered years from 12 noon and otherwise the children shall be in the care of the mother;
provided always that the children shall be returned to the mother’s care three days prior to the first day of the new academic year.
15.Changeover shall occur at 6pm in school holiday periods for school holidays in Term 1, Term 2 and Term 3, unless agreed otherwise in writing by the parties including SMS.
16.The children spend time with the father over the Christmas Day period as follows:
(a)in odd numbered years from 6pm on Christmas Day until 6pm on Boxing Day (and the children shall be in the mother’s care from 6pm Christmas Eve until 6pm Christmas Day); and
(b)in even numbered years from 6pm Christmas Eve until 6pm Christmas Day (and the children shall be in the mother’s care from 6pm Christmas Day until 6pm Boxing Day).
17.The children spend time with the father for Easter as follows:
(a)in odd numbered years from 6pm Holy Thursday to 6pm Easter Monday (with the father’s time to be suspended from 6pm Holy Thursday, until 6pm Easter Monday in even numbered years where the children shall be in the care of the mother).
18.Notwithstanding any other orders to the contrary, the father spend time with the children on Father’s Day from 6pm the day prior until the commencement of school Monday with the children being in the mother’s care for Mother’s Day from 6pm the day prior until the commencement of school on Monday.
19.Notwithstanding any other orders to the contrary, the father spend time with the children on the father’s birthday as follows:
(a)should the birthday fall on a school day then from after school until the commencement of school the next day (or 9am should the next day be a non-school day); and
(b)should the birthday fall on a non-school day then from 9am on the birthday until 9am the next day.
20.The father’s time with the children be suspended should the children be due to be in his care on the mother’s birthday as follows:
(a)should the birthday fall on a school day from after school until the commencement of school the next day (or 9am should the next day be a non-school day); and
(b)should the birthday fall on a non-school day then from 9am on the birthday until 9am the next day.
21.The father be at liberty to spend extra time with the individual child on their birthday or with both children if the children are with the mother:
(a)should the birthday fall on a normal school day and is followed by a normal school day from after school until the commencement of school the next day; and
(b)should the birthday fall on a non-school day or is followed by a non-school day then the usual parenting arrangement continue.
22.If a child needs to be collected from school the responsibility shall fall on the parent whose care the children shall be in on that night. If a child is unable to attend school due to illness or unforeseen circumstances, then the care of the children is the responsibility of the parent whose care the children were in the preceding night. Changeover shall occur at the school at 3.30pm. If a non-school day changeover is to occur at 6pm outside Suburb N, Suburb N Plaza unless otherwise agreed in writing by the parties.
23.The father be at liberty to communicate with the children when they are not in his care on Tuesdays between 7.15pm to 7.45pm, and on Thursdays between 7.15pm to 7.45pm, with the father to make one call to the mother’s landline and if she is unable to answer or the children are not available the wife shall ensure that the children return the call as soon as practicable.
24.The mother be at liberty to telephone the children, when they are in the father’s care at all reasonable times.
25.The father ensure that the children attend their current (and future) extra-curricular activities as well as important social events and birthday events during any periods of time they are in his care.
26.Subject to the policies of any of the event organisers, either parent be at liberty to attend the children’s special school and/or extracurricular events which do not fall in their care periods pursuant to these orders, with the parent not due to be with the children providing the other with 24 hours’ written notice of their proposed attendance and the children shall be advised of the other parents’ attendance and their care arrangements during such events.
27.Unless agreed otherwise in writing by the mother and father, changeover shall occur:
(a)on a school day at the children’s school;
(b)on a non-school day at UU Eatery, Suburb N Plaza; and
(c)in the event that parties are unable to agree to a change in location for changeover, then the mother is at liberty to make the final decision.
28.The father continue to engage with psychological and/or psychiatric treatment and follow any recommendations by that psychologist or psychiatrist, and the ICL be at liberty to provide the Family Report dated 8 March 2021 authored by Ms L to the father’s psychologist and/or psychiatrist.
29.The mother shall forthwith attend upon WW Services or an independent psychologist for counselling to assist her with strategies to communicate with the father about the children and to deal with her anxieties about separation, family violence and/or for parenting supports.
30.The children to attend upon a psychologist for therapeutic counselling as recommended by their paediatrician.
31.The parties shall comply strictly with all reasonable recommendations of the children’s treating practitioners, including but not limited to; administering medication, attendance at appointments and open reporting to the other of the children’s state of health in their respective care.
32.Save for an emergency, the parties personally communicate with each other with respect to the children via the Our Family Wizard app, with that communication being child-focussed and brief, with the moderator tone applied and only during business hours (8.30am to 5.30pm where practicable).
33.The father be at liberty to contact the children’s school or schools and any treating practitioner and obtain information about their progress and treatment.
34.The mother and father (their servants and agents) be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent within the hearing or presence of the children, or permitting any other person to do so;
(b)discussing these or any related proceeding or the contents of any documents filed in or intended for use in this proceeding with or in the presence or hearing of the children, or any of them, and/or permitting any other person to do so; and
(c)allowing any other person to communicate with the other parent via the Our Family Wizard app.
35.The father his servants and agents be and is hereby restrained from physically disciplining the children or either of them or using physical force unless same is necessary for the child’s safety.
36.In the event the children are involved in an emergency the parent in whose care the children are shall advise the other parent of the emergency via SMS and each parent shall be at liberty to attend upon the children.
37.The mother alone be at liberty to make an application to secure Australian passports for the children at her own expense and the mother shall hold the children’s passports in her possession for safe keeping.
38.In the event the mother relinquishes the children’s passports to the father for travel purposes then the passport shall pass to him via the mother’s lawyers or as otherwise directed by the mother where it shall be made available to the father three business days prior to his proposed travel with the children (with the travel dates being proven by way of airline ticket) and the father shall return the children’s passports to the mother via her lawyers or as otherwise directed by the mother within three days of his and the children’s return to Australia.
39.As and from 2022, the mother and father be at liberty to take the children outside of the Commonwealth of Australia (for holiday or other agreed purposes) on one occasion each year upon the following conditions being met:
(a)such travel is during a school holiday period and during times the children would otherwise spend with the travelling parent pursuant to these Orders;
(b)the travelling parent gives the non-travelling parent at least forty-five (45) days’ written notice, via the Our Family Wizard app of their intention to travel;
(c)the travelling parent provides the non-travelling parent with a draft itinerary including the proposed dates and countries of travel at least twenty-one (21) days prior to travel;
(d)the travelling parent provides the non-travelling parent with a copy of any airline tickets to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least fourteen (14) days prior to the first day of travel;
(e)the travelling parent provides the non-travelling parent with a copy of comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least seven (7) days prior to the first day of travel;
(f)the travel period be of no longer than 14 days’ duration on each occasion unless otherwise agreed in writing between the parents;
(g)the travelling parent advises the other parent of any changes to the proposed itinerary and travel arrangements forthwith;
(h)the children are accompanied by a parent, guardian, teacher or coach for any international travel;
(i)the destination is not subject to a “Do not travel” advice from the Smart Traveller website and is a country which is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction; and
(j)the travelling parent ensures the children are up to date and have the recommended vaccinations and follows any other recommended medical treatment required for travel in the international country of destination.
40.During any periods of travel, the non-travelling parent may contact the children by audio FaceTime or telephone (as agreed) on at least two occasions per week. In the event the travelling parent is not available then the call is to be returned as soon as the possible by the travelling parent.
PROPERTY
41.Within 14 days of the date of these orders, the husband return to the Respondent wife (“the wife”) via her lawyers her father’s walking stick with the inner metal core.
42.The monies held in the parties joint ANZ bank account ending #62 be paid out to the husband and within 21 days hereof that account be closed by the parties.
43.From the monies held by the conveyancer in a controlled monies account and on trust on behalf of the parties (being monies from the sale of the real property situated at VV Street Suburb N in the State of Victoria) the sum of $1,104,165.13 be paid to the wife and the sum of $638,211.97 be paid to the Applicant husband (“the husband”). Any further remaining monies that may have accrued in this account be divided between the parties to 63 per cent to the wife and 37 per cent to the husband.
44.The base amount of $172,284 is allocated, as required by s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) to the husband Mr Cormick out of the interest held by the wife Ms Powlett in the C Super Fund.
45.Whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of the wife from her interest in the C Super Fund, the trustee shall pay to the husband the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), and make a corresponding reduction in the entitlement the wife would have had but for these orders.
46.Orders 44-45 have effect from the operative time.
47.The operative time is 4 business days after the date of service of the sealed orders on the trustee.
48.These orders bind the trustee of the C Super Fund.
49.The parties otherwise retain all assets and liabilities in their possession and/or ownership, subject to these orders.
50.The husband to pay to the wife any sums that may be owing pursuant to orders numbered 3 and 4 of the orders made 23 April 2021 contemporaneously with the payment out of the trust monies to each of the parties.
AND THE COURT NOTES THAT:
A.The C Super Fund has been provided procedural fairness in relation to the proposed 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Cormick & Powlett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
This proceeding commenced in the then Federal Circuit Court of Australia (the “FCC”) (now known as the Federal Circuit and Family Court of Australia (the “FCFCoA”)) on application by the Applicant husband (“the husband”) filed 12 June 2019. The husband was then legally represented. The husband sought both interim and final parenting and property orders. He sought, as final orders (and amongst other orders as sought by him), that he and the Respondent wife (“the wife”) have equal shared parental responsibility of the children of the marriage, namely X born in 2012 and Y born in 2015 (“the children”); that the children live equally, on a week about basis, between their parents; and that there be a sharing of special occasion days. The husband further sought that there be an alteration of the parties’ property interests to effect an equal division of the parties’ net assets as quantified by him.
The husband’s legal representation continued (save for a 5 month period wherein the husband was a litigant in person) until his second solicitor filed a Notice of Withdrawal on 6 August 2020. The husband thereafter conducted the litigation on his own behalf until shortly before trial, when he obtained legal representation as a consequence of the Court making an order, pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”), to preclude the husband from personally cross-examining the wife.
The wife filed a Response to an Application for Final Orders on 23 July 2019. She sought both Final and Interim Parenting and Property Orders. The wife sought, as Final Orders (and amongst other orders as sought by her), sole parental responsibility of the children; that the children live with her; and that the husband spend time with the children on alternate weekends, holidays and special occasion days. The wife sought also an alteration of the parties’ property interests to effect a division of their net assets as quantified by her as to 65 per cent to the wife and 35 per cent to the husband and an equalisation of the parties’ superannuation entitlements. She sought further, as an Interim Order, the appointment of an Independent Children’s Lawyer. On 31 July 2019, an order was made appointing an Independent Children’s Lawyer for the children.
At trial, the parties sought such orders as are annexed to these reasons for judgment.
The wife was, and remained throughout the litigation, privately legally represented. The final hearing of the matter continued over a five-day period. That, obviously, caused considerable legal costs to be incurred by the wife. The husband, in contrast, incurred no legal fees in respect of the trial proceeding.
At the commencement of the litigation, there were already existing orders as between the parties made in other Courts. A Protection Application in the Children's Court of Victoria (“the Children’s Court”), filed on 29 January 2018 resulted in an Interim Accommodation Order being made on 30 January 2018, and a further Order being made on 5 March 2018. Both of these Orders provided for the children to spend limited supervised time with their father. Otherwise , the March 2018 Order provided, in respect of each child, relevantly, as follows:
The Court orders that the child be placed on a family preservation order.
The Order remains in force for a period of 12 months from 12/07/2018 until 11/07/2019.
The child is to be placed in the day to day care of the child’s parent(s) Ms Powlett.
A family preservation order gives the Secretary responsibility for the supervision of the child but does not affect a person’s parental responsibility for the child.
The attached 13 conditions apply to this Family Preservation Order.
On 12 July 2018, a further Family Preservation Order was made in the Children’s Court. There was a finding of substantiation of harm for the children in the husband’s care. Referrals were made by the Department of Health and Human Services (“DHHS” now known as the Department of Families, Fairness and Housing) for the husband to attend WW Services, for the purpose of the children spending supervised time with their father, and for the husband to participate in the Parenting Program. The wife was given a referral to T Services for that organisation to provide support to her and the children.
On 18 July 2018, in the Magistrates Court at Melbourne, a final Intervention Order (“IVO”) of 12 months duration was made naming the husband as the Respondent. That IVO was obtained by Victoria Police for the protection of the wife and children who were named as “affected family members.” The husband was present at the hearing and did not consent to the making of the Order.
Upon the matter commencing in the FCC in 2019, a period of approximately 12 months had passed since the making of the Family Preservation Order in the Children’s Court. On 31 July 2019, the FCC made Interim Consent Orders, relevantly, providing for the children to live with the wife; and for the children to spend time with the husband:
…
3.subject to him forthwith enrolling in and thereafter commencing and continuing to attend a Men’s Behavioural Change program (with such course to be as approved by the Independent Children’s Lawyer, once appointed):-
(a)commencing on 2 August 2019, each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday;
(b)on 3 October 2019 from 8.00am until 6.00pm on 6 October 2019, where the Father is at liberty to travel with the children to Queensland for the purposes of a holiday, and such time to be in lieu of the weekend commencing 27 September 2019; and
(c)at such further and other times as may be agreed between the parties from time ot [to] time.[1]
…
[1] Order 3 of the Orders made on 31 July 2019.
Changeovers in relation to the children spending time with the husband in accordance with order 3 of the above paragraph was to occur either inside the Suburb N Police Station; inside the ZZ Town Police Station; or for Y from Crèche (at the front door with the husband to ring the bell) if not otherwise agreed. The parties were restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other and from discussing this proceeding or any proposed parenting arrangements that the parents wished for the children, within the presence and/or hearing of the children, and from permitting any other person to do so. The husband was to continue to engage with his counsellor, Dr J.
On 28 November 2019, the FCC made further Interim Orders, relevantly, as follows:
BY CONSENT:
1.Paragraph 3 of orders made 31 July 2019 be discharged.
2.The Father spend time with the children as follows:-
(a)for the remainder of the school year 2019, commencing 6 December 2019 and each alternative weekend thereafter, from 6.00pm Friday to 6.00pm Sunday;
(b)for the Summer school holidays 2019/2020:-
(i) 6.00pm 20 December to 6.00pm 22 December;
(ii) 6.00pm Boxing Day to 6.00pm 28 December;
(iii) 6.00pm 3 January to 6.00pm 5 January;
(iv) 6.00pm 8 January to 6.00pm 10 January;
(v) 6.00pm 17 January to 6.00pm 19 January;
(vi) 6.00pm 22 January to 6.00pm 24 January.
(c)for Term 1 2020:-
(i) commencing on Week 1 (31 January) and each alternative week thereafter, from after school on Friday until 6.00pm Sunday;
(ii) commencing on Week 2 (7 February) and each alternate week thereafter, on Fridays from after school until 7.00pm;
(d)for the Term 1 school holidays in 2020:-
(i) after school on 27 March until 6.00pm 29 March;
(ii) 6.00pm 1 April to 6.00pm 3 April;
(iii) 6.00pm 10 April to 6.00pm 12 April.
(e)for Term 2 2020:-
(i) commencing on Week 1 (17 April) and each alternate week thereafter, on Fridays from after school until 7.00pm;
(ii) commencing on Week 2 (24 April) and each alternate week thereafter, from after school on Friday until 6.00pm Sunday.
(f)such other and further times as agreed between the parties.
3.…
4.Within fourteen (14) days of these orders, the parties download and install the MyFamilyWizard app to use in relation to any communication with each other in relation to parenting matters and parenting arrangements for the children.
5.…
6.…
7.Pursuant to section 68Q of the Family Law Act 1975, to the extent that any parenting arrangement that are specified in these orders are inconsistent with the current terms of any existing Intervention Orders these orders take precedence over the existing Intervention Orders.
8.….
PROPERTY
9.Within seven (7) days, the parents do all things necessary and sign any such documents with the mortgage bank for the property situate at VV Street, Suburb N to enable a drawdown of the mortgage in the amount of eighty thousand dollars ($80,000.00), with each party to receive a distribution in the equal amount of forty thousand dollars ($40,000.00). This amount is to be characterised as an interim property settlement.
On 17 April 2020, the FCC made further Interim Orders, relevantly, as follows:
BY CONSENT:
Financial Disclosure
1.Within fourteen (14) days of the date of this order, the Respondent Wife, Ms Powlett (“the Wife”), provide copies of the following documents (if not already provided) to the Applicant Husband, Mr Cormick, (“the Husband”):-
(a)the following documents relation to the Estate of Mr R Powlett:-
(i) bank statements which identify the current balance of all the bank accounts operated by the Estate/ Mr P Powlett or in which it/ he has an interest;
(ii) bank statements (or other documents) of the Estate or Mr P Powlett which identify all distributions(s) of funds same to the Wife from the grant of probate to date;
(iii) bank statements (or other documents) of the Wife which identify all distributions received by her from the Estate/ Mr P Powlett from the grant of probate to date; and
(iv) an authority signed by the Wife permitting the Husband to make enquiries of, and request documents from, H Lawyers in relation to the Estate.
THE COURT FURTHER ORDERS THAT:
Valuation
2.The parties forthwith do all such acts and things, and sign all such documents as may be required, to obtain a joint sworn valuation of the real property situate at, and known as, YY Street, XX Town in the State of Victoria, being the real property more particularly described in Certificate of Title Volume … Folio … (“the property”) at the parties’ equal joint expense at first instance with the final allocation of the parties’ contribution to this cost to be determined by the trial judge.
…
On 1 September 2020, and following a transfer of the proceeding from the FCC to the Court by Order made in the FCC on 29 May 2020, the Court made Orders, relevantly, as follows:
(15)By consent and within seven days, the parties appoint V Real Estate to sell the real property situate at and known as VV Street, Suburb N in the State of Victoria (‘the VV Street property’) by public auction.
(16)By consent and upon the appointment of V Real Estate, the parties authorise the agent who shall have the conduct of the sale to prepare a report of maintenance or other works recommended by the selling agent to be completed prior to the sale of the VV Street property.
…
On 18 January 2021, the Court made Orders, relevantly, as follows:
…
4.Within 7 days the parties are to approach the Bank to seek that the mortgage be placed on hold pending settlement.
5.Within 24 hours the Husband is directed to contact V Real Estate to access the former matrimonial home and to query whether any tradesman will accept payment at settlement, including specifically for the sanding and styling of the property.
6.…
7.…
8.The Wife shall be provided with any quotes obtained by the Husband and she shall not unreasonably withhold her consent to payment.
On 23 April 2021, being the last day of the trial, the Court made the following Orders:
…
(2)Further to paragraph 20 of the Orders dated 1 September 2020, the parties by 4:00pm on 30 April 2021 pay the 24 receipted costs set out in ‘Schedule A’ herein to the husband and no further expenses from the ANZ redraw facility shall be paid to the husband. In the event the parties cannot access the redraw facility at the present time then such monies shall be paid out to the husband from the joint ANZ bank account of the parties.
(3)The husband and wife shall personally by 4:00pm on 26 April 2021 pay one half each of the costs to insure, until settlement of the sale of VV Street Suburb N, the ‘said property’.
(4)To facilitate compliance with Order 3 herein, the wife shall meet the payment at first instance by the due date and the husband shall reimburse the wife his one half of the costs to insure at settlement of the sale of VV Street Suburb N.
…
MATERIALS RELIED UPON
Each of the parties, and the ICL, provided case outline documents setting out the material each of them relied upon. I have had regard to that material and that tendered as exhibits in the proceeding. Each of the parties filed closing Written Submissions which I have also considered.
The following material was relied upon by the husband:
(a)Further Amended Initiating Application file on 18 March 2021;
(b)Financial Statement filed on 18 March 2021;
(c)Trial Affidavit of the husband filed on 18 March 2021;
(d)Reply Affidavit of the husband filed 13 April 2021;
(e)Affidavits of Ms W filed on 17 October 2019 and 18 May 2020;
(f)Affidavit of Dr J filed on 18 May 2020;
(g)Affidavit of Kieren Mihaly of Counsel filed on 18 May 2020 (the husband could not adduce evidence from this Affidavit or rely upon it as the husband did not comply with rule 15.51 of the Family Law Rules 2004 (Cth) (“the Rules”)) ; and
(h)Affidavit of Ms B Cormick filed on 18 May 2020.
The following material was relied upon by the wife:
(a)the wife’s Amended Response filed on 1 April 2021;
(b)the wife’s Financial Statement filed on 1 April 2021;
(c)Trial Affidavit of the wife filed on 6 April 2021;
(d)Affidavit of Ms Q Powlett filed on 1 April 2021 (not required for cross examination); and
(e)Affidavit of Mr P Powlett filed on 1 April 2021 (not required for cross examination).
The following material was relied upon by the ICL:
(a)Affidavit of Ms L, Psychologist and Family Consultant, filed 17 March 2021;
(b)Subpoena document #1: LEAP and Narrative Records of Ms Powlett;
(c)Subpoena document #2: letter from the Department of Health and Human Services (“DHHS”) dated 17 July 2019; and
(d)Subpoena document #5: letter from DHHS dated 13 August 2019.
Following the completion of the trial and closing of evidence, on 18 August 2021, the husband filed an Application in a Case wherein he sought to re-open the case and introduce further evidence. That evidence was 2017 police photographs of injuries caused by the wife to the husband. On 15 September 2021, the husband filed an Amended Application in a Case seeking to also rely upon further evidence in the form of a certified extract from the Magistrates Court of Victoria in Melbourne of the refusal of the final IVO extant application of the wife. The wife and the ICL opposed the application of the husband. The Court made orders on 1 October 2021 dismissing the husband’s application. The reasons for that dismissal are as stated below.
The Court accepts that the husband had a genuine inability to place this material before the Court at the time of trial. However, the admission into evidence of the police photographs of the husband’s injuries, would not affect in any substantial way, the ultimate finding that would have been available on the evidence at the hearing, nor the Court’s determination of this matter.[2] That the husband sustained injury, was admitted by the wife in the course of the trial. That is, during the relevant incident, the wife both scratched and bit the husband.
[2] Suell & Suell (Re-Opening) [2009] FamCA 55 per Murphy J at [27].
The 21 November 2017, physical assault upon the wife by the husband, was canvassed extensively in the evidence before the Court at the trial. It is referred to hereafter in these reasons. The husband’s version of the events was placed before the Court by him. That included that on the relevant night, the husband discovered that his wife was having an affair. This was an allegation made by him in the husband’s reply Affidavit of 13 April 2021 and under cross-examination[3] and is one which I find has no basis. It was suggested as being the reason for the husband’s need to do the following:
I grabbed her phone of the kitchen bench, punched in ‘…’, which is X’s birthday, and it didn’t work. I asked Ms Powlett had she changed the code, she said none of your business. She snapped the phone out of my hand, turned her back on me. I reached round to grab it, she bit me. I turned her around, she scratched me. That’s how it run.
[3] Transcript dated 20 April 2021, page 22 at lines 29-30.
DHHS notes put to the husband in cross-examination at trial recorded the wife reporting to DHHS that the husband had “pushed her down to the ground in a corner of the bathroom” and put “his hands around her throat.” Further, that the wife had “attempted to defend herself by scratching his face, and she bit his shoulder.” The husband denied that he had assaulted the wife, and claimed the wife assaulted him: “she bit my back , not the front of my shoulder . The police had photos and have lost it.” Further, the husband stated, “ I still have a scar on my face. Would you like to see the …”
The wife in her evidence agreed with the husband that she had bitten his back. The photographs add nothing material. The wife does not argue with the fact of her biting and scratching the husband during the course of this altercation. She did so in self-defence and not, as the husband described, as an assault upon the husband.
The admission into evidence of the second piece of evidence as sought by the husband, namely the certified extract documenting the dismissal of the IVO extension application, would also make no material difference to the Court’s determination in this matter. What existed at trial was an ongoing interim IVO subject to challenge which remained to be heard. The ultimate disposition of the IVO was not determinative of any matters required to be determined by me at trial.
The discretion to admit further evidence needs to be exercises with much care in parenting cases.[4] The best interests of the children do not require the re-opening sought by the husband. Rather it is in their best interests to finalise this proceeding and avoid the detrimental impact upon them of extended litigation and conflict between their parents.
[4] Suell & Suell (Re-Opening) [2009] FamCA 55 per Murphy J at [27].
CREDIT
The Court is reluctant to make adverse findings of credit in respect of the evidence of the husband and wife in parenting cases.[5] However, on the facts in this case, it is necessary to do so, in particular, in respect of the parties competing accounts of family violence. Where the parties accounts differ in respect of the allegations they each make of the other, and of their treatment of the children , I prefer the evidence of the wife and in particular, in respect of the accounts of family violence as perpetrated upon the wife and upon the children by the husband.
[5] Adamson & Adamson (2014) FLC 93-622 at 79, 703.
Statements of fact in these reasons are findings of fact on the balance of probabilities.[6] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[7]
[6] Section 140 of the Evidence Act 1995 (Cth).
[7] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
The wife was a thoughtful and truthful witness who did her best to listen to questions and answer them in an honest fashion. She is clearly exhausted by the husband’s ongoing pursuit of conflict. Nevertheless, she endeavoured to be reasonable in all her considerations.
When under cross examination at trial, the husband’s answers to questions asked of him were either irrelevant and/or non-responsive or, as submitted by Counsel for the wife, circled back to his interests, his perceptions and/or his priorities. He showed no insight into the impact of his behaviour on the wife, the children and the many professionals involved with this family.[8]
[8] Written submissions of the wife filed 21 May 2021 at paragraph 39.
Mr Cormick and Ms Powlett
The wife was born in 1964. She is aged 56 years. The husband was born in 1966. He is aged 55 years.
The parties met in December 1991. They commenced to reside together in September 1994. They married in 1998. In 2012, the parties’ daughter, X, was born. In 2015, the parties' son, Y, was born. On 21 November 2017, the parties separated. Their cohabitation period was approximately 23 years. X is now aged nine years. She is in grade three at K School. Y is now aged six years. He has commenced preparatory class at K School.
Following the birth of the children, the parties' relationship deteriorated. Significant conflict between them followed. In April 2013, when only a few months old, X developed apnoeic epilepsy, a condition which caused her to stop breathing when she experienced seizures. Her mother had the necessary qualifications and experience to deal with this illness. The father did not. X’s suffering of this condition caused anxiety and disagreement between the parties. Matters as to the disciplining of the children also were a source of conflict. On one occasion, the husband made X stay in her room for 4 hours because she had refused to eat the tomatoes he had placed on her toast. He described it as “I sent her to her room, and it took her four hours.” X was pre-school.
The parties’ conflict escalated over the years. They had many discussions about X’s commencement of her schooling years prior to 2017. Those discussions became heated arguments with the husband’s dominating approach and angry outbursts being a source of concern to the wife. One night, in the last three to four months of 2016, when the children were in bed asleep, the wife had a conversation with the husband saying words to the effect that: "obviously we are both never going to agree on this. It is not something that together we can decide upon. We need to agree to disagree and move on and let the courts make the decision for us." The husband immediately became angry and said to the wife: "if you take my kids off me, I will slit your throat." He left the house. The wife was shocked by the husband’s words. Around 10 minutes later, the husband returned to the home. He told the wife that he: “wouldn't slit her throat as that would be a too easy and quick way to die and that she needed to suffer.” He then said he would: “break her neck and paralyse her so she would have to spend the rest of her life in a nursing home and suffer if she ever took his kids off him.”
The wife was very concerned by the husband’s behaviour, and frightened by his threats. She told friends, what the husband has said to her. She rang the husband’s mother in New Zealand, and requested the husband’s sister, Ms BH, ring and talk to him. His mother offered to come to Australia. The wife went to the husband’s General Practitioner, Dr Z, and disclosed the threats to him, requesting he provide the husband with mental health support.
In 2016, the wife sought the husband’s consent for X to commence a second year of kindergarten on the basis she was not then developmentally ready for school as assessed by the kindergarten. It was also noted that X was relatively younger than her peers. The husband disagreed with that assessment, and insisted that X commence school in preparatory class in the following year, namely 2017. The wife subsequently requested and obtained, an independent Suburb BD Council field officer assessment, which confirmed that X was not “school ready.” The wife repeatedly tried to discuss accepting the two assessments obtained with the husband, but to no avail. The husband threatened to go to the kindergarten to abuse the teacher, Ms BJ (whom he disliked) and made derogatory comments about “Ms BK ”, X’s crèche room leader who had concurred with the view expressed by the kindergarten. The parties then attended a meeting at the school on the day before X started school. The wife told Mr AA, the principal, and Ms BB, X’s allocated classroom teacher, why she did not want X starting school in 2017. She discussed X’s school readiness with them. The husband indicated his desire for X to attend school. X was present during this discussion, sitting on her father’s lap. The husband then asked X what she wanted to do. As X was answering, “I want to go to school ” the Principal said “Hey that’s not very fair Mr Cormick.” The husband replied, “There see, she wants to go to school.”
The wife felt powerless in the face of the husband’s strident opposition to any delay in X’s commencement at school. The wife considered it a poor parental decision, one that X was not going to benefit from. Nevertheless, in order to avoid ongoing conflict, and the escalation of that conflict, the wife agreed to the course set upon by the husband. X commenced her schooling in 2017. The wife proceeded to meet regularly with Ms BB, to discuss strategies to assist X. X however struggled to keep up. The husband commenced to blame the school for not “doing their job.” He also blamed the wife, and argued that she was “vindictive" and "didn't put in the work ... didn't do the readers with her." On the few occasions the husband himself attended to X’s word charts, things did not progress beneficially for X. Her father swore at her and asked her, "are you a fucking idiot?” X commenced to cry. The wife told the husband to leave the room and did not encourage any participation from him again.
On 28 September 2017, when X was obviously struggling with the demands placed upon her by her school attendance, T Services received a referral from police after the husband left X outside in the cold, in only her underwear, on a dark night, as a form of punishment. X was crying out that she was cold. The wife left X in that state for a few minutes (for fear of escalating the husband’s mood) then took X’s clothes out to her and helped her get dressed. Subsequently, as a result of a complaint made by an unidentified person, the police attended at the property. The wife’s evidence as to this episode was:
I told her to come inside and say sorry to her dad. When she came inside, he asked her what she had to say for herself and she grunted so he took her outside again. Later when I was at the door talking to the police, Mr Cormick came up from behind me and told the police that X has some spectrum disorder and falsely said that she had caused a lot of damage to the house. Then he woke her up telling her the police were here because of the entire racket she had been making. She was 3 years of age at the time.[9]
[9] Affidavit of the wife affirmed 1 April 2021 at paragraph 49.
The wife engaged with T Services to assist in managing the children’s behaviours, which both parties were finding difficult. She sought the husband’s engagement with her. He declined, despite his acknowledgement to his GP of the parties difficulties in dealing with the children around that time. Part of X’s behaviours were escalated by the habit of the husband filming her when she was emotionally dysregulated and crying. The husband in his evidence claimed that he did so to provide evidence that X was possibly autistic, or “on the spectrums.” The wife’s evidence, which I accept, is that he also did so to threaten to embarrass her. He filmed her when she was locked out of the house by him; when her hair was being treated for head lice; and when she was having her seatbelt put on amongst other occasions. He showed such videos to her preparatory class teacher to show her how X behaved when not at school.
The parties attended a second school meeting in November 2017. This time the subject was concerning X’s progress at school and the need for her parents to consider X repeating preparatory class. The husband made a comment that “everyone knows who to blame” and then motioned both his hands as shot guns and made a shooting noise as he moved both hands and pretended to shoot at the wife. During the course of this meeting, Mr AA, the Principal, gave the husband an ultimatum to take his child to another school, if the husband would not let the school do their job and educate their students appropriately.
In 2018, as X was not at a level that would allow her to satisfactorily proceed into grade one, X repeated her preparatory class year. The husband and wife had already separated.
On 21 November 2017, the husband assaulted the wife by pushing her to the ground in the corner of the bathroom, grabbing her and placing his two hands around her throat. In the course of this assault, the wife was prevented access to her phone as she was attempting to call “000.” The wife’s hand was injured by the husband. The husband then took the wife’s phone from her, and from the home, upon his subsequent departure from it. This significant and violent assault of the wife, perpetrated upon her by the husband, occurred in front of the child Y causing him to vomit, a fact ultimately conceded by the husband in cross-examination. It signalled the parties' separation. The physical altercation between the parties and assault of the wife was reported by her to the Suburb N Police Station on 21 November 2017. The husband reported the incident to the Suburb BC Police Station immediately after the incident occurred where he claimed the wife had attacked him and he acted in “self-defence.” No charges were laid nor any IVO applications made in relation to the husband’s claims to the police. As the children were present during this assault and as were both under 18 years of age, Victoria Police made a referral to DHHS. On 21 November 2017, the DHHS conducted a Section 38 Consultation with the family regarding the family violence incident. The husband informed both the Police and DHHS workers that he had grabbed the wife by the throat in “self-defence.” At trial, he stated as follows:
I grabbed her throat after to hold her against the wall after she bit me and scratched the hell out of my face. I have a scar on my face.[10]
[10] Transcript dated 20 April 2021, page 21 at lines 14-15.
I find the husband was not truthful as to this episode of family violence. This family violence as perpetrated upon the wife was extremely frightening to her. It continues to adversely impact her, in particular in her dealings with the husband.
On 22 November 2017, X commenced counselling with clinical psychologist, Ms CC, of E Medical Centre. This attendance by X had been agreed to by the parties prior to their separation. That counselling continued until 2020, when X ceased attendance upon Ms CC, as a result of the husband making a formal and unsubstantiated complaint about Ms CC to the Australian Health Practitioner Regulation Agency (“AHPRA”). The husband did not consult with the wife about the course of action he intended to take prior to taking it. Nor put any alternate proposal to her as to a substitute counsellor. The wife was upset by the husband’s actions and did not consider them to benefit X.
On 1 September, 2020, the Court made orders, relevantly that:
…
(11)The children attend upon any psychologist/s (‘the psychologist/s’) as nominated by the children’s paediatrician, with the mother to advise the father of the name/s of the psychologist/s and with the father to have full authority to discuss and attend individually upon the psychologist/s at his cost.
(12)The parties authorise for the patient file held by Ms CC with E Medical Centre for X to be provided to the psychologist/s upon whom X shall attend pursuant to order 11 herein.
…
At trial, despite the wife having nominated qualified persons to the husband, there had been no agreement between the parties as to the appointment of a counsellor for X. The husband had proposed no one. The husband described this cessation of X’s time with Ms CC, occurring directly as a consequence of his actions, as being because Ms CC “basically didn’t want to work for my daughter anymore.”[11]
[11] Transcript dated 19 April 2021, page 47 at line 34.
On 29 January 2018, DHHS undertook their first home visit to the family, who were then present, albeit the husband and wife had separated, at the home. The husband was uncooperative and aggressive toward Child Protection workers. He was also personally derogatory toward the workers, commenting along the lines of, "I want to see someone older with some life experiences." .The husband told the DHHS workers to “fuck off.” The children were present as the husband verbally abused the DHHS workers, their presence well known to the husband .A Protection Application was filed for the protection of the children.
The husband subsequently refused to accept service of the Protection Application by Emergency Care, and was again derogatory toward the staff members of DHHS, advising them that “no order could stop him seeing his children.” The DHHS staff members returned to the former matrimonial home, accompanied by the police, in order to effect service of the Protection Application.
The Interim Accommodation Order made on 30 January 2018, at the Suburb BF Children's Court, provided for the children to spend supervised time with the husband. The husband had not seen the children for two weeks before commencing to see them for one hour a week on a supervised basis. The further Protection Order made on 5 March 2018, increased the children’s supervised time with their father to three times each week. The husband contested the making of such orders and all orders subsequently made in that proceeding. The husband blamed the wife for his needing to see the children on a supervised basis. At trial in 2021, he maintained his disdain for the wife in respect of the occurrence of the Protection Order proceedings. He blamed her for the intervention of the police and DHHS.
Protective concerns in respect of the children in 2017 and 2018 included the husband’s inappropriate use of discipline of the children including the significant smacking of them. The husband was ordered to undertake a course in anger management. He has never done so. He has, however, had considerable psychological treatment, a matter to which I shall return.
On 26 February 2018, X approached her mother, crying, and said that her father had held her around her neck, by demonstrating that action on herself. The wife reported the incident to DHHS. The husband denied the allegation.
On 5 March 2018, Victoria Police sought an Intervention Order against the husband for the protection of the wife and children.
On 27 March 2018, the husband made a formal complaint about a Child Protection senior practitioner, Ms DD, of DHHS emergency care/short-term care team. At that time, the family had already transferred to the long-term DHHS care team and were, by virtue of that transfer, no longer dealing with senior practitioner, Ms DD. The husband’s evidence at trial, that his complaints, including that Ms DD was “biased ”, resulted in the family's cessation of contact with Ms DD, was not accurate. His complaint resulted in no action against Ms DD nor substantiation of his allegations.
On 16 April 2018, an Interim IVO was made with the wife and children named as aggrieved family members. This IVO was extended on 1 May 2018. On 27 June 2018, the husband was charged with a breach of the IVO. On 18 July 2018, a final IVO was made against the husband for the protection of the wife and children for 12 months. On 22 November 2018, a diversion plan was signed in relation to the husband’s breach of the IVO.
On 12 July 2018, a 12 month Family Preservation Order was made in the Suburb BF Children's Court providing for the children to live with the wife, and spend unsupervised time with the husband each Saturday during the day until overnight time could commence in November 2018. That overnight time was then extended to alternate weekend time from June 2019, subject to no reports of inappropriate parenting by the husband and/or the children being at risk in their father's care.
On 12 June 2019, this proceeding was commenced by the husband in the FCC. Around that same time, the wife sought an extension of the Interim IVO due to expire on 18 July 2019. That IVO was extended although opposed by the husband. That extension continued at the time of trial and resulted in the husband being assisted by Victoria Legal Aid in the form of legal representation throughout the trial.
In January 2020, the husband obtained a Support for Specific Learning Disabilities (“SPELD”) report in respect of X. This provided a diagnosis of X as having dyslexia. The husband is a dyslexic. The husband had agitated for a diagnosis for X in March 2018, in the midst of a very chaotic and difficult time for the children as set out above. The wife had not thought that appropriate nor necessary at that time. The husband determined, in early 2020, to not consult with the wife, but rather proceed to have X assessed on a week-end when the children were with him. Accordingly, he arranged for an assessment, paid the $1600 fee, and accompanied by the children and Ms W, attended the assessment with X. The wife was not informed of, nor invited to, the assessment. The wife had considered that X may be dyslexic in the period preceding this, discussing that prospect with a teacher at the school. The obtaining of the diagnosis, provided confirmation for the parties of that which they suspected, and assisted X, in the arranging (by the school) of further school resources being made available to her. But such assessment was unable to be obtained by the parties acting in concert.
The husband has used this diagnosis to rail against the wife’s parenting; against the school; against Ms CC; and in any other way he considers useful to himself. He constantly referred to it in non-responsive answers under cross-examination. He is opposed to X continuing to attend her present school, because of what he described as the school having “failed ” his daughter. His evidence was further that “the school have failed to act.”[12] That failure as described by him, is in the school’s failure, as he alleged, to have X diagnosed. He does not “trust ” the school, because of the school’s failure to perform an act that was outside the authority of the school. Likewise, the husband was critical of Ms CC, whom he also described as “very biased”[13] (against him), for what he perceived as her failure to make such diagnosis. Again, that was not within Ms CC’s remit. Her function was to assist X by enhancing her emotional well-being, as agreed upon by the parents before their separation. Under cross examination, the husband agreed with this sentiment in part.[14] It is clear there was a need for the involvement of Ms CC in X’s life. In 2019, Ms CC stated that X “consistently presented in her sessions as controlling, hyperaroused and challenging of limits and boundaries.”[15]
[12] Transcript dated 19 April 2021, page 27 at line 40.
[13] Transcript dated 19 April 2021, page 50 line 10.
[14] Transcript dated 19 April 2021, page 51 at lines 18-20.
[15] Affidavit of wife filed 14 August 2021, annexure “A” Ms CC’s report dated 8 February 2019.
Whilst the husband admitted in cross-examination that the school has since provided X with a reading program that involved one-on-one time with a teacher, additional to her class-room teacher[16] and has made X a participant in the Multisensory Structured Language (“MSL”) program as operated by the school, he nevertheless continued to be highly and inappropriately critical of the school’s response.
[16] Transcript dated 19 April 2021, page 27 at lines 20-21.
The husband is adamant that the children should move from K School to a public school. He is opposed to paying the fees, and additional to his complaint that the school has failed his daughter, made complaint that the school had “lied” to Ms L by saying that X was only 6 to 12 months behind her peers academically. In his non-expert view, X was 2 years behind. At other times in his evidence, the husband declared X to be 3 years behind her peers.
The school have assessed X as progressing well, and being now only 6 to 12 months behind her peers with ongoing improvement occurring. She is a valued member of the school community.
Ms EE is a Speech Pathologist whom X has been attending weekly following her diagnosis of dyslexia in early 2020. That referral was as arranged by the wife through Violet’s General Practitioner (“GP”) and forms part of a subsidised care plan. The wife was also able to organise funding for these attendances to continue through the National Disability Insurance Scheme (“NDIS”). Ms EE is a professional whom both parties regard highly, and both are happy that X is able to benefit from her expert input. In April 2021, Ms EE wrote to the wife and said of X, relevantly: “….if she continues to progress at the same rate, she may be able to catch up with her class peers on thematic awareness and decoding/encoding this year…” [17]
[17] Transcript dated 20 April 2021, page 10 and Exhibit “MA-04”.
The fact that Ms EE and the school’s views align as to the advances being made by X in her academic life is ignored by the husband.
Each of the husband and wife do the children’s homework with them, in particular X’s readers. The husband was critical of the wife’s effort and ability in this regard, saying that the wife “cannot get X to do stuff.”[18]The husband used the process of home reading to inform the school of his views. The process had provision for a parent/teacher note. X can read such notes. Regardless, one note written by the husband and Ms W to the teacher was, relevantly:
Ms W is my partner. Ms W has a degree in education (teaching). X is far more behind…in reading...than 6 to 12 months…..that Ms GG has suggested…She is more like grade 1. [19](I note that Ms GG was the classroom teacher of X).
[18] Transcript dated 19 April 2021, page 41 at line 1.
[19] Transcript dated 19 April 2021, page 43.
The wife considered the husband’s use of the school processes to voice his complaints in a context where X could see her father’s views, was undermining of X’s confidence. She denied that she did not put in the effort with X, and denied that she had no ability to progress X’s learning outside the school environment. The wife’s evidence was that she would regularly meet with X’s teacher to discuss strategies to assist X to attend school. The wife claimed she found it difficult to do X’s word chart and school readers, however she would always seek feedback and work out strategies for X’s reading with the school and continues to do so.[20]
[20] Ibid.
The wife was challenged under cross examination about certain failures in her communication with the husband. She conceded these. Her evidence was that she found communicating with the husband to be anxiety-provoking.[21] That is not surprising given the history of family violence and the husband’s ongoing behaviours. The wife failed to advise the husband of the NDIS plan in place for X, as she was concerned that he might undermine these services as he did many others.[22] She accepted that she would need to address this issue and stated that she would access support from WW Services as well as counselling upon the recommendation of Ms L.
[21] The wife’s oral evidence on 22 April 2021.
[22] The wife’s oral evidence on 23 April 2021.
Despite the husband’s complaints about the poor communication of the wife, the husband conceded it took him many months to download the Our Family Wizard app after orders were made on 28 November 2019, with the husband’s partner, Ms W estimating it occurred the following April.[23] Even with the use of the Our Family Wizard app, communication is difficult with the following text message sent by the father through this app demonstrating the unconstructive nature of the communication by the husband:
So you forgot yet again, that excuse won’t wash in the family court, I can’t wait until the 19 of April. If you want to save yourself time, money and embarrassment have someone close to you call me. I will tell them the term Im [sic] offering and they can relay them to you. Your lawyer Annette Lakey after the final hearing will be have [sic] to answer to an ombudsman because of her unethical and dishonest practices. How in earth did you, Ms CC and the school fail so badly with violet’s [sic] education. I have always[s] known was dyslexic, I knew this when she was at kindergarten, seams Im [sic] the only one that is really child focused. In march 2018 you and the judge prevented me from having violet assess [sic] and now look where she is, 3 years behind her age group. The department of education told me that K School have failed violet but as it is a private school they have no jurisdiction over them. Ms GG said in family court report that violet was 6-12 months behind but Ms EE said she is doing work at grade one level. So because violet did prop twice she is 3 years behind her age group. So how can you, the school and Ms CC who dump our daughter after Aphra was notified by me, justify your actions. Y is acting out because of frustration and violet is different to most girl [sic] you know it and I always have. When kids in my watch I don’t have the problems you seam [sic] to have…[24]
[23] Oral evidence of Ms W on 21 April 2021 and Written submissions of the ICL dated 14 May 2021 at paragraph 9.
[24] Trial Affidavit of the wife dated 1 April 2021 at Annexure “C”, message from Mr Cormick dated 29 March 2021; and exhibit “MFI-6” tendered on 21 April 2021.
Despite the above, the wife can, and does, communicate electronically with the husband. She is willing to continue that means of communication including in circumstances where it affords the husband a further opportunity to berate her. One such example was when Y became sunburnt in his father’s care, the children having done so before on more than one occasion. The wife sent a text to the husband in essence saying to be careful and referring to the husband’s own concerns as to skin cancer. The husband considered that such text was “belittling.”
Throughout this litigation, the husband has complained about many of the professionals involved with the children and the family, with no benefit being derived by the children. The husband took umbrage at the manner in which he perceived himself to be treated by these professionals. The husband has made unsubstantiated complaints to the following, amongst others:
(a)the REIV, regarding the selling agent of the parties’ investment property situate at M Street, Suburb N (the “M Street property”). The husband described this action at trial as not a complaint being made, rather a phone call to the REIV. The HH Real Estate selling agent obtained an IVO against the husband in circumstances were the husband engaged in aggressive behaviours toward him due to the husband’s belief that the agent had undersold the M Street property;
(b)the Department of Education regarding X’s primary school. When the husband was advised that K School was outside the remit of the Department, the husband contacted the “Catholic School Ombudsman” as referred to by the husband or Catholic Education Commission of Victoria, whom he described as “fobbing me off ”[25];
(c)the Ombudsman regarding DHHS workers, in particular Ms DD;
(d)APHRA regarding X’s psychologist, Ms CC;
(e)APHRA regarding the family report writer, Ms L;
(f)the Legal Services Board regarding the ICL and the solicitor for the wife; and
(g)The Parenting Program.
[25] Transcript dated 19 April 2021, page 39 at line 34.
It was the wife’s evidence that the husband made such complaints as a means to continue to exact influence over decision making, without due consideration to the children’s needs.[26] The father, under cross examination, was unable to show insight into any detrimental impact of these complaints, nor demonstrate how such complaints advanced his position, or were for the benefit of the children.[27] The husband’s complaints continue to impact adversely the children and the wife.
[26] Family Report of Ms L dated 17 March 2021 at paragraph 97.
[27] Written submissions of the ICL dated 14 May 2021 at paragraph 6.
The husband demonstrated to his professional supports an “unshakeably negative view of the mother, despite his prolonged engagement.”[28] The husband attended 16 of 17 sessions (for two hours each) of the Parenting Program program. The final report of the program noted that the husband “often spoke in highly critical and blaming way toward the children’s mother.”[29]
[28] Written submissions of the ICL dated 14 May 2021 at paragraph 10.
[29] Trial Affidavit of the wife filed 1 April 2021 at Annexure “B”, Caring Dad’s final report dated 2 July 2018.
The husband’s attitude toward the wife continues to be that which is preclusive of any shared parental responsibility order. His evidence at trial was that he did not “trust ” the wife, albeit he did so trust her “with the safety of my kids”[30] He did not “respect ” her. He felt “sorry ” for her. It was his view that the wife “hated ” him although he did not “hate” her. He stated “we have no relationship”; “She wants me out of the children’s life.”[31] Contrary to this last stated view of the husband, the wife seeks for the children to spend time with their father on a substantial and significant basis. But that is not what he wants. Both parties agree that the children love the other parent, and that the other parent loves the children. Both can see some positives in the involvement of the other parent in the lives of the children. But they seek different orders. The husband’s evidence was that the wife’s opposition to his proposals was an “attack” on him.[32] The wife has great difficulty in communicating with the husband because of the history of their exchanges, and the lack of agreement as to almost anything at all. The husband is confrontational. The wife cannot cope, and she is now worn out. The children’s challenging behaviours, the wife views, as often attributable to the husband’s behaviours toward them and toward her, both current and historic. Additionally, there is the lack of any agreed approach although in respect of Y’s more recent threatening of his mother with a knife, the husband agreed that Y should attend upon a counsellor.
[30] Transcript dated 19 April 2021, page 14 at line 17.
[31] Ibid page 68, at line 38.
[32] Ibid page 69, at line 38.
On 14 January 2021, upon Y returning from the husband’s care into the wife’s care pursuant to Court orders and pre-existing arrangements between the parties, Y was unhappy. He climbed a side fence requiring the wife to retrieve him. When she did so, Y said to his mother, “take your shitty hands off me…I’ll cut your filthy neck off.”[33] The wife replied to the effect “I’m not touching your neck” and Y replied, “I don’t care I’ll chop your neck off.”[34]
[33] Trial affidavit of the wife filed 1 April 2021, page 59 at paragraph 17(qq).
[34] Ibid.
The husband did not take issue with this conduct and suggested that Y’s behaviour was reflective of him wanting to spend more time with his father. Y had already spent summer holiday time with his father for an extended period. Ms W agreed with the husband as to the motive for Y’s behaviour.
I find, as submitted by the ICL, that Y’s behaviour on 14 January 2021, was alarming, and demonstrated a total lack of basic preparation by the father, as supported by his partner, of Y, for his transition into the mother’s care at a predetermined time. It was also a failure to acknowledge accountability for the child’s behaviour upon return to his mother. The wife had to deal with this disturbing behaviour in the presence of X.
The above is an example of the influence exacted knowingly or unknowingly by the husband upon the child. The language used by the child is commensurate with the language used by the husband according to the child.[35]
[35] Exhibit “-19” Kinder Report dated 9 April 2020 where it is noted that Ms W has children, BN & BP aged about 13 and 10 years.
The husband opposed the wife’s wish for the children to continue in their schooling at K School, and will not pay the fees associated with same. The wife wished for the children to retain stability in their school attendance, and remain at the school which she considered served the children’s needs very well. The husband has undermined the wife in his discussions with the children as to their schooling and rather than presenting a united parental front, have caused the children to challenge their mother. Both children have said to their mother that they wish to change schools and go to a non-Catholic school, which is what their father desires. The children are also aware of their parent’s respective financial positions, as presented by the husband to them. They have taken $70 from their mother, without her knowledge, and given it to their father because, as was the husband’s evidence, “…they compare Mum’s lifestyle to mine.”
The husband has also undermined the mother in his taking of X to have her ears pierced, and his cutting Y’s hair in a Mohawk, with both activities undertaken unilaterally and in the knowledge that the mother would have objected.
Even during the running of the trial, there was no ability for the parties to make arrangements to best promote their children’s interests, and again because of the husband’s behaviours. The children needed collection from school on 19 April 2021. The school contacted the mother during the morning of the trial to ascertain the arrangements for the children that evening, being a night that the children would be picked up by their father. The husband had not approached the wife to have the children placed in after care until his arrival, or Ms W’s (who was also in the Court building) arrival, to collect them from after-care. He had made no other arrangements. The mother had an account with the school for after-care costs to be debited to her and the husband was aware the mother had such account. It was a simple matter of making a request of the wife. Instead, the school principal had the care of the children in his office. “He offered to take the kids” said the husband.
The wife needs an ability to put into effect long term decision making for the children as to their health and education. Additionally, I shall make the orders sought by the wife as to her obtaining of passports for the children. The husband and ICL were afforded procedural fairness in respect of this order and the ancillary orders sought which made provision for both parents to travel with the children. No party took issue in their evidence or otherwise with the orders as proposed by the wife and accordingly they shall be made, in particular in an effort to avoid ongoing litigation between the parties.
The children now live with the wife in rental premises in Suburb BL. The children spend time with the husband during school terms each alternate weekend from Friday to Monday, and each alternate Monday from after school until 7 pm. Additionally, they spend some special occasions and holiday time with their father as provided for in accordance with Orders made by the Court on 28 September 2020.
Ms L
Ms L is a psychologist and family consultant. She prepared two reports tendered in evidence in the proceeding, the first being dated 26 November 2019 and the second the 8 March 2021. Despite both reports being headed Private and Confidential and noted as “For the information of the parties and their legal representative only”, the husband made each of the reports available for reading by his current partner, Ms W, with whom he does not live. Indeed, Ms W had been provided by the husband with the totality of the Affidavit material before the Court and with other materials from Subpoenaed documents, so that she could assist the husband in the preparation of his case, and assist him in the ongoing running of his case. Both the husband and Ms W showed a complete disregard of the requirement that Ms W not read the Family Reports, and ignored the fact that Ms W was importantly a witness in the proceeding for the husband. Her evidence was compromised, and the weight the Court was able to give to her evidence was lessened because of the impact of this knowledge which reduced her independence as a witness.
Ms L was not cross-examined by the parties to the proceeding and it was accepted that her evidence was tendered and the contents of her two family reports were unchallenged.
Ms L’s first family report of 26 November 2019
Ms L noted that the parties’ children, X and Y, were much wanted children, but that following X’s birth, the parties’ relationship began to deteriorate in part because there were stressors associated with X’s medical condition, and thereafter, in part, because the parties, having previously spent significant time apart, then commenced to spend more time together, the wife at home on maternity leave and the husband spending increased periods of time at home, unable to work due to an injury.
It became apparent to the parties that they had different parenting practices and views, and that those differences caused conflict to occur between them. Both the parents acknowledged to Ms L that verbal altercations occurred in front of the children. Ms L noted the wife initiated the separation, after ongoing verbal abuse by the husband directed toward her and her concerns about the husband’s inappropriate use of discipline toward the children.
Ms L noted as part of the history that a police report, made by the mother in respect of the physical assault which I find was perpetrated upon her by the husband, triggered a notification to the DHHS and subsequent intervention by them.
Ms L noted in paragraph 8 of her report that:
…it was during the DHHS investigation that the father’s inappropriate discipline of the children came to their attention. Initially, limited supervised time with the children was ordered. Mr Cormick was to attend an anger management program, which has not occurred as Mr Cormick has been advised the information is covered by his psychologist whose counselling and intervention model includes anger management modules. He has attended Caring Dads program who have provided a report of his participation 2 July 2018.
Ms L set out the limited time the children first spent with their father, which gradually increased to include overnight time which was occurring prior to the husband initiating proceedings in the FCC on 12 June 2019.
In her observations of the husband, Ms L noted him to present as:
…a straightforward, uncomplicated and candid man who speaks his mind. He presents as unpretentious and honest. In interview, he tended to digress at times and strayed to different issues seemingly unrelated but which ultimately had relevance to his narrative of a loving father and good person attested to by the positive character reference of others he presented to the writer. His partner, Ms W, attests to his good character and his love and care of his children.
Ms L noted the father to describe himself as: “a nice guy, but don’t cross me.”[36] She observed that the husband’s candour could be: “unrefined and unfiltered; for example, he readily accedes his partner’s children “hate my guts”; similarly, that X is: “my favourite” child, although he says he loves both children equally.[37] Ms L also that noted that the husband perceived himself as a “fun father” and claimed the children wished to spend more time with him.[38] He “strongly denied any physical abuse of the wife and claimed to have been shocked by the allegation that he had tried to strangle his daughter.”[39]
[36] Ms L’s family report dated 26 November 2019 at paragraph 20.
[37] Ibid at paragraph 21.
[38] Ibid at paragraph 22.
[39] Ibid at paragraph 23.
5. In the event the Court orders that the children live with the Mother, then the children spend time and communicate with the Father during school term:
a.commencing 23 April 2021 and each alternate week thereafter, from after school, or 6pm if it is a non-school day, on Friday until the commencement of school on Monday, or if Monday falls on a public holiday, until 3.30pm on Tuesday; and,
b.commencing 3 May 2021 and each alternate week thereafter on Monday after school until the commencement of school on Tuesday.
6. The children spend time and communicate with the Father during school term, commencing Term 4 , 2021:
a.Each alternate week from after school, or 6pm if it is a non-school day, on Thursday until the commencement of school on Monday, or if Monday falls on a public holiday, until 3.30pm on Tuesday; and,
b.In the other week on Thursday after school, or 6pm if it is a non-school day, until the commencement of school on Friday.
c. As otherwise agreed between the parties in writing.
7. The weekend time as specified in paragraphs 6(a) and 7(a) herein is suspended during term and summer holidays and recommences in the first week of each new school term, and the time specified in paragraphs 6(b) and 7(b) herein is to recommence in the second week of each new school term.
8. The Father spend time with the children in the term holidays on a week about basis as agreed and in default the first week commencing from after school on the last day of term with the father until 6pm on the middle Saturday of the holiday period.
9. The Father spend time with the children in the long summer school holidays for the first half, and the mother the second half., with a provision for the parties to take the children for two weeks for the purpose of holiday ( national or international) by way of provision of 28 days notice of such intention , no more than once per year by each parent, with the children returning to the Mother’s care 3 days before the commencement of school, and in default of agreement, the first week commencing from after school on the last day of term with the father until 6pm on the following Saturday, and each alternate week thereafter.
Christmas
10. In 2021 and each alternate year thereafter the children live with each parent as follows:-
(a)With the Mother from 3 pm Christmas eve until 3 pm Christmas Day in 2021 and each alternate year thereafter or as agreed by the parties
(b)With the Father from 3 pm Christmas Day until 3 pm Boxing Day in 2021 with the Father and in each alternate year thereafter or as agreed by the parties
(c)In 2022 and in each alternate year thereafter from 3 pm Christmas eve until 3 pm Christmas Day with the Father and with the Mother from 3 pm Christmas Day until 3 pm Boxing Day, Or as agreed by the parties
Other special days
11. The children spend time with each parent over Easter as per normal arrangements with no special allowances or arrangements:
12. For Mother’s and Father’s Days, if not a weekend the children would normally spend with such parent, then they shall spend time with that parent from 6 pm on the Saturday prior until 6 pm on Father’s or Mother’s day, as the case shall be.
13. For each of the children’s birthdays as per normal arrangements, with no special allowances or arrangements :
14. On each of the Father’s and Mother’s birthdays as per normal arrangements with no special allowances or arrangements
15. The father communicate with the children on the Mother’s home telephone twice per week on weekday evenings and for up to 30 minutes, on such days and times as agreed between the parties and in default of agreement Tuesday and Thursdays nights, and if she is unable to answer or the children are not available she shall ensure that the children return the call as soon as possible.
16. Changeover is to occur at school if a school day, and if a non-school day in front of Coles inside Suburb N Plaza, or as agreed in writing.
Programs and assessments
17. The children to attend upon a psychologist as recommended by their paediatrician.
Communication and Restraints
18. That the parents communicate with each other with respect to the children via either SMS or the Our Family Wizard app, with that communication being child-focussed and brief, (apart from emergencies when a phone call can be made at any time). The Mother is to respond in a timely manner within 48 hours.
19. The Father be at liberty to contact the children’s school or schools and any treating practitioner and obtain information about their progress and treatment.
20. That each parent be restrained from:
(a)exposing the children to family violence or physical discipline or perpetrating family violence against either of the children;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent within the hearing or presence of the children, or permitting any other person to do so; and,
(c)discussing these or any related proceedings with or in the presence of the children, or permitting any other person to do so.
21. That each parent:
(a)inform the other parent as soon as practicable of any serious illness or injury suffered by either child, particulars of any treatment required or received by the child together with the contact details of the treatment provider and/or location at which the child is a patient and any medical or other health practitioner involved with the child or children and authorise such practitioner to discuss the treatment with the other party at their own cost;
(b)authorise any educational institution, sporting or other club attended by the children to discuss their progress with the other party and to obtain copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents, at each parent’s own expense;
(c)be entitled to attend all school functions and events to which parents are normally invited including but not limited to sports carnivals, concerts, parent- teacher interviews and any other similar occasions;
(d)keep the other updated, of their email address, contact telephone number and address and notify any changes forthwith upon any change occurring.
(e)ensure that the children continue their regular extra curricular activities such as sport, scouts, birthday events and other occasions during any periods of time they are with each parent, and provide contact details of such if requested
22. The parents and their solicitors be at liberty to provide a copy of these Orders to any educational institution, sporting or other club attended by the children.
23. The children are to attend Doctors of F Medical Centre for their ongoing medical care where possible and practicable.
24. The parties ensure that the children attend upon Dr FF in Suburb SS for their dental appointments.
25. The Mother to advise the Father of all specialist medical, dental and allied health appointments in relation to the children or either of them within 24 hours of such appointments being made and shall provide contact details of same to him and he be at liberty to speak to any such practitioner and to attend upon them at a time separate from the Mother.
26. Usual s65 DA(2) and 62B orders to apply.
27. The appointment of the ICL be discharged.
B PROPERTY ORDERS
28. That the proceeds of sale of the real property situated at VV Street Suburb N be divided between the parties on a 50 -50 basis.
29. That there be a superannuation split so that these orders are binding upon the Trustees of First State super (“the first fund”) and the Trustees of QQ Bank retirement Fund( ‘the second Fund”) and C Super Fund(“the third Fund”)
30. Pursuant to section 90XT(1)(a) of the FLA 1975 (Cwth) whenever a splitable payment becomes payable in respect of the Mother’s interest in the first and second and third Funds, the Trustees of each Fund shall pay to the father the amount calculated in accordance with Part 6 of the Family law (superannuation) regulations 2001, using a base amount such sum to achieve an equal division of the parties’ combined superannuation entitlement and there should be a corresponding reduction to the entitlement the wife would have had in the Funds but for this Order noting that the base amount is currently $162,291
31. The operative time for paragraph 35 hereof is four (4) business days after service of a certified, sealed copy of this Order in the Trustees of the Funds.
32. Within 14 days of the making of these Orders the Mother will make available to the father the dining table and 6 chair set, to be collected at the Father’s expense.
33. That the parties’ joint bank account with the ANZ to be divided equally between the parties and closed within 14 days.
34. That any other joint bank accounts (with nominal funds) be closed within 14 days.
35. Each party otherwise retain all other chattels in their possession and each party be responsible for any debt in their name.
36. Such other or further order as this Honourable Court deems appropriate.
37. All applications otherwise dismissed.
Annexure B – Orders sought by the wife
PARENTING ORDERS
Sole parental responsibility
1.The mother have sole parental responsibility for the children of the marriage.
X born in 2012 and
Y born in 2015 ("the children").
2.In respect of the mother's sole parental responsibility for the children, the mother wherever practicable advise the father in writing of any decision which the mother needs to make, calling for the father's input and that input if any, shall be provided to the mother in writing within 14 days of a call and the mother shall within 15 days of her call upon the father consider the father's input, if any, and make the decision advising the father of the decision in writing within 14 days of it being made by her.
3.The father communicate with the mother prior to altering the children's presentation and is restrained from doing so without the mothers consent. Presentation includes haircuts and hair colouring/dyeing, tattoos, ear and body piercing and other presentation altering interventions that require an adults consent.
4.For the avoidance of doubt:-
(a) the Mother's consent only is required for any decision relating to the child_r en's medical (or allied) treatment (save for emergencies), education, religious training, their presentation/grooming, and obtaining of passports;
(b) when the children are spending time with either of the mother or father, during that time neither parent needs to consult the other with respect to day-day decisions made in relation to the children (which do not pertain to their long term care welfare or development).
Education
5.That subject to Order 2 herein, the Mother and Father do all such things to maintain the children’s enrolment, education and orderly attendance at K School, Suburb TT.
6.The Father be at liberty subject always to school policy and /or any extant order to contact the children's school only to obtain school reports, school photograph order forms and other information parents are ordinarily entitled to, at his own expense, if any, with such information being accessed by him directly via his own personal link with the school portal wherever practicable.
7.In the event the father communicates with the children's school he shall do so in a professional and courteous manner at all times.
8.That the Father be at liberty to attend the children's parent/teacher interviews by appointment and always in accordance with school policy and any extant order.
With Whom the Children Shall Live
9.That the children live with the Mother.
The Children's Time with the Father
10.That the father spend time with the children as follows:-
School Term Time
(a) Commencing 23 April, 2021, each alternate weekend from the conclusion of school Friday (or 6 pm if Friday is a non-school-day) until before school Monday (or 6 pm Monday if a non-school day);
(b) Commencing 3 May 2021, each alternate Monday from after school Monday (or 6pm if Monday is a non school day) to before school Tuesday (extended to 6pm if the Tuesday is a non-school day);
(c) As may be otherwise agreed in writing by the parties.
School Term holidays - Term 1 Term 2 and Term 3 Holidays
11.That time pursuant to order 10 herein shall be and is hereby suspended during all Term 1 - Term 4 school term holidays periods and shall recommence as though the term time had not been interrupted.
12.That unless agreed otherwise in writing by the parties 60 days prior to the first day of the given school term holiday, then the father shall spend time with the children one one half of each of the Term 1 Term 2 and Term 3 holidays in sync with the half in which the father's usual weekend time set out in order 10a herein would usually occur (save for the suspension referred to in order 11 herein) and otherwise the children shall be in the care of the mother during school term holiday periods.
Long Summer Holidays
13.That the father shall spend time with the children in the Term 4 2021 Summer holiday period on a week about (seven day) rotation period as follows:-
(a) In weeks 1, 3 and 5 for Term 4 Summer holiday periods in odd numbered years from 12 noon and otherwise the children shall be in the care of the Mother;
(b) In weeks 2, 4 and 6 of the Term 4 Summer holiday periods in even numbered years from 12 noon and otherwise the children shall be in the care of the Mother;
provided always that the children shall be returned to the mother's care three days prior to the first day of the new academic year.
14.That as and from 2022 either parent be at liberty to take the children for two weeks' holiday during the long summer vacation (national or international) upon the provision of 28 days' notice of such intention, no more than once per year by each parent and with the destination of such travel being a Hague Convention Country and not having an extant DFAT no travel warning.
Changeover time for Holiday Periods
15.That change over shall occur at 6pm in school holiday periods for school holidays in Term 1, Term 2 and Term 3, unless agreed otherwise in writing by the parties including SMS.
Christmas Days being - 6pm Christmas Eve - 6pm Boxing Day
16.That the children spend time with the Father for the Christmas Days as follows:-
(a) in odd numbered years from 6pm on Christmas Day until 6pm on Boxing Day (and the children shall be in the Mother's care from 6pm Christmas Eve until 6pm Christmas Day);
(b) in even numbered years from 6pm Christmas Eve until 6pm Christmas Day (and the children shall be in the Mother's care from 6pm Christmas Day until 6pm Boxing Day).
Easter
17.That the children spend time with the father for Easter as follows:-
(a) In odd numbered years from 6pm Holy Thursday to 6pm Easter Monday (with the Father's time to be suspended from 6pm Holy Thursday , until 6pm Easter Monday in even numbered years where the children shall be in the care of the Mother).
Mother's Day and Father's Day
18.That the father spend time with the children on Father's Day (being the first Sunday in September) from 6pm the day prior until the commencement of school l Monday (with the children being in the Mother's care for Mother's Day (being the second Sunday in May) from 6pm the day prior until the commencement of school Monday.
Birthdays
19.That the father spend time with the children on the father's birthday as follows:-
(a) should the birthday fall on a school day then from after school until the commencement of school the next day (or 9 am should the next day be a non-school day);
(b) should the birthday fall on a non-school day then from 9am on the birthday until 9am the next day.
20.The father's time with the children be suspended should the children due to be in his care on the Mother's birthday as follows.
(a) should the birthday fall on a school day from after school until the commencement of school the next day (or 9 am should the next day be a non-school day);
(b) should the birthday fall on a non-school day then from 9 am on the birthday until 9 am the next day.
21.The father be at liberty to spend extra time with the individual child on their birthday or with both children if the children are with the mother
(a) should the birthday fall on a normal school day and is followed by a normal school day from after school until commencement of school next day
(b) should the birthday fall on a non-school day or is followed by a non-school day then the usual parenting arrangements continue.
Change in change over in unforeseen circumstances
22.If a child needs to be collected from school the responsibility falls on the parent whose care the children would be on that night. If a child is unable to attend school due to illness or unforeseen circumstances, then the care of the children is the responsibility of the parent whose care the children were in the preceding night. Changeover would occur at the school at 3.30 pm if the other child was attending school. If a non-school day changeover to occur at 6 pm outside Suburb N, Suburb N Plaza unless agreed poll otherwise.
Telephone Time
23.That the father be at liberty to communicate with the children on Tuesdays between 7.15pm - 7.45 pm, with the Father to make one call to the Mother's landline and if she is unable to answer or the children are not available the Wife shall ensure that the children return the call as soon as practicable.
Extra Curricular Activity Attendance
24.That the father ensure that the children attend their current (and future) extra-curricular activities as well as important social events and birthday events during any periods of time they are in his care.
25.That subject to the policies if any of the event organiser, either parent be at liberty to attend the children's special or extra ordinary school and/or extracurricular events which do not fall in their care periods pursuant to these orders, with the parent not due to be with the children providing the other with 24 hours' written notice of their proposed attendance and the children shall be advised of the other parents' attendance and their care arrangements during such events.
Changeover Location
26.Unless agreed otherwise in writing by the mother and father, change over shall occur:-
(a) on a school day at the children's school; and
(b) on a non-school day at UU EaterySuburb N;
(c) in the event that parties are unable to agree to a change in location for changeover then the mother is at liberty to make the final decision
Physical Discipline Injunction
27.That the Father his servants and agents be and is hereby restrained from physically disciplining the children or either of them or using physical force unless same is necessary for a child's safety.
Communication
28.That save for an emergency, the mother and father personally communicate brief, factual and important messages in respect of the children via the Our Family Wizard App only with the moderator tone applied and such messages be sent between 8.30am - 5.30pm where practicable.
29.·That in the event the children are involved in an emergency the parent in whose care the children are shall advise the other parent of the emergency via SMS and each parent shall be at liberty to attend upon the children as directed by the Mother.
Non-Denigration Order
30.That the mother and father (their servants and agents) be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and;
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and permitting any other person to do so;
(c) Allowing any other person to communicate with the other parent via the Our Family Wizard app.
International Travel
31.That the Mother alone be at liberty to make an application to secure Australian passports for the children at her own expense and the Mother shall hold the children's passports in her possession for safe keeping.
32.That in the event the mother relinquishes the children's passports to the Father for travel purposes then the passport shall pass to him via the Mother's lawyers where it shall be made available to the father three business days prior to his proposed travel with the children (with travel dates being proven by way of airline ticket) and the Father shall return the children's passports to the Mother (via her lawyers) in good order strictly within three days of his and the children's return to Australia .
33.Unless otherwise agreed between the parties in writing, the mother and father be at liberty to take the children outside of the Commonwealth of Australia (for holiday or other agreed purposes) upon the following conditions being met:
(a) such travel is during a school holiday period and during time the children would otherwise spend with the travelling parent pursuant to these Orders;
(b) the travelling parent gives the non-travelling parent at least twenty-eight (28) days' written notice, via the Our Family Wizard App of their intention to travel;
(c) the travelling parent provides the non-travelling parent with a draft itinerary including the proposed dates and countries of travel at least twenty-one (21) days prior to travel;
(d) the travelling parent provides the non-travelling parent with a copy of any airline tickets to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least fourteen (14) days prior to the first day of travel;
(e) the travelling parent provides the non-travelling parent with a comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least seven (7) days prior to the first day of travel;
(f) the travel period be of no longer than 14 days ' duration on each occasion unless otherwise agreed (as per Order 14 herein);
(g) the travelling parent advises the other parent of any changes to the proposed itinerary and travel arrangements forthwith;
(h) the children are accompanied by a parent, guardian, teacher or coach for any international travel;
(i) The destination is not subject to a 'Do not travel' advice from the Smart Traveller website and is a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
(j) The travelling parent ensures the children are up to date and have the recommended vaccinations and follows any other recommended medical treatment required for travel in the international country of destination.
35.In the event that either party seeks to take the children overseas for up to 14 days during the long summer vacation (same not to occur until at least 2022 pursuant to Order 14), they shall provide notice of such intention to do so to the other not less than 60 days prior to the travel, with consent not to be unreasonably withheld and make up time shall be provided before or after the children's travel as determined by the mother in writing (with timely input by the father in writing as to the father's preferences as to dates).
36.That during any periods of travel, the non-travelling parent may contact the children by audio FaceTime or telephone (as agreed) on at least two occasions per week. In the event the travelling parent is not available then the call is to be returned as soon as the travelling parent.
Medical
37. That subject to order 2 herein, the mother and father shall ensure that the children receive their medical care and attention from their current GP medical clinic Doctors of F Medical Centre, Suburb G whenever practicable.
38.That further to order 37 herein in the event the children attend another GP medical clinic, then the attending parent shall ensure that the medical clinic communicates medical records arising, to the F Medical Centre as soon as practicable after the children's attendance, as· to ensure the children's medical records are at all times up to date at Doctors of F Medical Centre, Suburb G.
39.Subject to order 2 herein, the mother and father shall ensure that the children attend any and all dental appointments with their current dentist (Dr FF) at RR Clinic, Suburb SS.
40.The parents are to comply with all reasonable recommendations of the children's treating practitioners, including the administration of all prescription medication and attendance of all medical/ allied health appointments.
41.That the mother and father ensure always that the children are provided with and have applied to them appropriate sun protection at all times.
42.That each parent provide creams, ointments or prescription medication to the other at changeover and advise the other about the usage of same.
Counselling
43.By 5 pm on 15th July 2021, the father engage in counselling as recommended by Ms L, with the Father to choose one practitioner nominated by Ms L, for a period of at least 12 months, excluding referral, intake and assessment and attend as on at least a monthly basis, with the mother being at liberty to attend individually the same counsellor.
44.That each party shall pay the costs of their own attendances upon the counsellor referred to in order 43 herein.
Complaints
45.That the father, or his agents be hereby restrained from issuing any complaint against any professional person involved with the children for at least 24 months from the time that treatment commences and to notify the mother firstly with the concerns of which the complaint will be based.
Copy court orders
46. That the mother be at liberty to provide a copy of these parenting orders to:
(a) to the children's school;
(b) the children's medical and allied health professionals
(c) any professional dealing with the children who would benefit from provision of the orders
Copy Family Reports
47.That the mother be at liberty to provide these orders, the two family reports by Ms L and Reasons for Orders to:-
(a) The counsellor referred to in order 43 herein;
(b)Any counsellor the mother may engage with on an individual basis where such attendances pertain to parenting matters; ;
(c)Any counsellor the father may engage with on an individual basis where such attendances pertain to parenting matters
(d) The father's counsellor Dr J
48.That the Independent Children's Lawyer is hereby discharged.
AND THE COURT NOTES
A.The father appreciates that, when he makes request for information, the schools and/or health professionals may elect to not comply with his requests.
B.That on or before the commencement of the school year the mother shall provide to the father a Year at a Glance Contact Calendar setting out the time the children are due to spend with the father pursuant to these orders.
C.That within seven days of sending the Year at a Glance Calendar referred to above, the father shall advise the mother if he believes the calendar does not accord with these orders (and why).
D.That within 14 days of the date the mother send the Year at a Glance Calendar referred to in notation B herein the Mother shall make any corrections she agrees to, to the Year at a Glace Calendar and forward to the Father the final Year at a Glance Calendar.
E.That in the event the Father does not reply to the Year at a Glance Calendar referred to in notation B herein within seven days, the Mother may assume the Year at a Glace Calendar is agreed by the parties.
Orders sought by Wife - Property
1.That from the sale of the real property, situated at VV Street, Suburb N, the net proceeds of same be divided 65% to the Wife and 35% to the Husband.
2.That the base amount of $162,291 is allocated, as required bys. 90XT (1)(a) of the Family law Act 1975 ("the Act") to the Husband Mr Cormick out of the interest held by Ms Powlett in C Super fund.
3.That whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of Ms Powlett from her interest in C Super fund, the Trustee shall pay Mr Cormick the entitlement calculated in accordance with Part 6 of the Family law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement Ms Powlett would have had but for these orders.
4.That Orders 2-3 have effect from the operative time.
5.That the operative time is four business days after the date of service of the sealed orders on the trustee.
6.That these Orders bind the trustee of the C Super Fund.
7.That the parties' joint bank account with ANZ be divided equally between the parties and closed.
8.That within 14 days of the date of these Orders, the Husband return to the Wife her father's walking stick with the inner metal core.
9.That the parties otherwise retain the assets and liabilities in their possession or ownership, subject to these Orders.
10.Such other orders as deemed appropriate by this Honourable Court.
The Fund has been provided procedural fairness in relation to the proposed orders.
Annexure C – Orders sought by the ICL
Parental Responsibility
1.The Mother have sole parental responsibility for the children X, born in 2012 and Y born in 2015 (“the children”).
2.The Mother is to advise the father in writing as soon as practicable about any major long-term issues relating to their care, welfare and development, and in particular their education, health and medical treatment. The Father is invited to provide any input into such decisions by email within 14 days, or in the case of an emergency within 7 days. The mother will make the decision taking this input into account and advise the Father of the decision made.
3.For the avoidance of doubt, only the Mother’s consent is required for any medical or allied treatment for the children, together with educational decisions.
4.The parents shall comply with all reasonable recommendations of the children’s school or schools and treating practitioners about the children’s development and health.
Living Arrangements
5.The children live with the Mother.
6.The children spend time and communicate with the Father during school term:
a.Commencing 19 April 2021 and each alternate week thereafter from after school, or 6pm if it is a non-school day, on Friday until the commencement of school on Monday, or if Monday falls on a public holiday, until 3.30pm on Tuesday; and,
b. commencing 26 April 2021 and each alternate week thereafter on Monday after school until the commencement of school on Tuesday.
7.The children spend time and communicate with the Father during school term, commencing Term 1, 2022:
a.In week 1 and each alternate week thereafter, from after school, or 6pm if it is a non-school day, on Thursday until the commencement of school on Monday, or if Monday falls on a public holiday, until 3.30pm on Tuesday; and,
b.In week 2 and each alternate week thereafter, on Thursday after school, or 6pm if it is a non-school day, until the commencement of school on Friday.
8.The time as specified in paragraphs 6(a) and 7(a) herein are to commence in the first week of each new school term, and the time specified in paragraphs 6(b) and 7(b) herein are to commence in the second week of each new school term.
9.In the term holidays on a week about basis as agreed and in default the first week commencing from after school on the last day of term with the father until 6pm on the middle Saturday of the holiday period.
10.In the long school holidays on a week about basis as agreed, with the children returning to the Mother’s care 3 days before the commencement of school, and in default, the first week commencing from after school on the last day of term with the father until 6pm on the following Saturday, and each alternate week thereafter.
11.By telephone the father can contact the children on the Mother’s home telephone twice per week on weekday evenings for up to 30 minutes, as agreed between the parties.
12.Changeover is to occur at school if a school day, or alternatively at UU Eatery, Suburb N Plaza, or as agreed in writing.
Programs and assessments
13.The Father to continue to engage with psychological and/or psychiatric treatment and follow any recommendations by that psychologist or psychiatrist, and the ICL be at liberty to provide the Family Report dated 8 March 2021 authored by Ms L to the
Father’s psychologist and/or psychiatrist.
14.The Mother shall forthwith attend upon WW Services or an independent psychologist for counselling to assist her with strategies to communicate with the Father about the children and to deal with her anxieties about separation, family violence and/or for parenting supports.
15.The children to attend upon a psychologist as recommended by their paediatrician.
16.The parents shall comply strictly with all reasonable recommendations of the children’s treating practitioners, including but not limited to administering medication, attendance at appointments and open reporting of the children’s state of health in their respective care.
Communication and Restraints
17.That the parents communicate with each other with respect to the children via the Our Family Wizard app, with that communication being child-focussed, brief, and only during business hours.
18.The Father be at liberty to contact the children’s school or schools and any treating practitioner and obtain information about their progress and treatment.
19.That each parent be restrained from:
(a) exposing the children to family violence or physical discipline or perpetrating
family violence against either of the children;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent within the hearing or presence of the children, or permitting any other person to do so; and,
(c)discussing these or any related proceedings with or in the presence of the children, or permitting any other person to do so.
20.That each parent:
(a)inform the other parent as soon as practicable of any serious illness or injury suffered by either child, particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient and any medical or other health practitioner involved with the child or children and authorise such practitioner to discuss the treatment with the other party at their own cost;
(b)authorise any educational institution, sporting or other club attended by the children to discuss their progress with the other party and to obtain copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents, at each parent’s own expense;
(c) be entitled to attend all school functions and events to which parents are normally invited including but not limited to sports carnivals, concerts, parent teacher interviews and any other similar occasions;
(d) keep the other updated, as soon as practicable, email address and contact telephone number and notify any change to their email address and contact telephone number forthwith upon any change occurring.
21.The parents and their solicitors be at liberty to provide a copy of these Orders to any educational institution, sporting or other club attended by the children.
Such other orders as deemed appropriate by this Honourable Court.
AND THE COURT NOTES
A.The father understands that, when he makes request for information, the schools and health professionals may elect to not comply with his requests.
If sole parental responsibility is not ordered to the mother, the ICL seeks an order “That each parent do all things required of them to maintain the children’s enrolment at K School, or other school but only by written agreement between the parents.”
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