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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cormick & Powlett

Details

AGLC: Cormick & Powlett [2021] FedCFamC1F 28
Case: [2021] FedCFamC1F 28
Decision Date

CaseChat Overview and Summary

The case before Hartnett J was a parenting and property dispute between Mr Cormick and Ms Powlett, the parents of two children, X and Y. The husband sought an order for equal shared parental responsibility of the children and sought equal time with the children. The wife sought sole parental responsibility of the children and that the children live with the wife. The wife also sought an apportionment to her of 65 per cent of the asset pool due to the impact of family violence on her capacity to earn. The husband sought an equal division of the asset pool. The court found in favour of the wife in relation to parenting and property. In relation to parenting, the court found that sole parental responsibility should lie with the wife, the children should live with the wife, and the husband should spend substantial and significant time with the children. The court found that the wife should have sole decision-making power in relation to the children's medical and allied treatment, education, religious training, presentation, and obtaining of passports. The court also found that the husband should be restrained from physically disciplining the children and from abusing, insulting, belittling, rebuking, or otherwise denigrating the wife within the hearing or presence of the children. The court found in favour of the wife in relation to property, with a 63/37 adjustment of the asset pool in her favour due to contributions and future needs. The court also found that the superannuation should be equalized between the parties.

Orders