FAMILY COURT OF AUSTRALIA
| PAVEL & PAVEL | [2011] FamCA 1066 |
| FAMILY LAW – CHILDREN –Family violence – Where the children have been subjected to psychological harm arising from the parental conflict and are at risk of future psychological harm – Where the parents have demonstrated little capacity to facilitate and encourage a relationship between the children and the other parent – Where the mother’s proposal would require a change in current schooling and counselling for the children – Where the children have expressed a clear preference to live mainly with the mother – Where access to the children’s Aboriginal culture and heritage would enrich their lives – Where the conflict between the parties is such that it is agreed that the parent with whom the children live for the preponderance of time will have sole parental responsibility. FAMILY LAW – EVIDENCE – Where a witness was initially retained as an adversarial witness and subsequently became the treating practitioner of the mother – Whether excluding evidence would be potentially unfair to the mother – Evidence admitted as that of a treating practitioner – Weight to be attached to such evidence. FAMILY LAW – PROPERTY SETTLEMENT –Assets and Liabilities – Where the parties have spent a large and disproportionate amount of their wealth on legal fees – Contributions – Where both parties made significant contribution – Adjustments – Where it is agreed between the parties that an adjustment of 10% should be made in favour of the party with whom the children primarily live – Just and equitable. |
| Family Law Act 1975 (Cth) Part VII and Part VIII ss 60CA, 60CC, 61B, 61C, 61DA, 65DA, 65DAA, 65DAC, 75(2), 79. Evidence Act 1995 (Cth) s 140. |
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Donnell and Dovey (2010) FLC 93-428; (2010) 42 Fam LR 559; 237 FLR 53
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Rhoden v Wingate [2002] NSWCA 165
ASIC v Rich [2005] NSWCA 152
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Li v The Queen [2003] NSWCCA 290
Hort & Verran (2009) FLC 93-418
Browne v Dunn (1983) 6 R 67
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Champness & Hanson (2009) FLC 93-407
Leighton & Carey [2010] FamCAFC 94
B and B (1988) FLC 91-957
M v M (1988) 166 CLR 69
TWN & PAQ (2005) FLC 93-230; (2005) 34 Fam LR 190
Kennon &…
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- AGLC
- PAVEL & PAVEL [2011] FamCA 1066
- Case
- [2011] FamCA 1066
- Decision Date
CaseChat Overview and Summary
The court was required to determine the living arrangements for the children, including the allocation of parental responsibility and the time the children would spend with each parent. Additionally, the court needed to resolve the division of property, specifically concerning a property located at M Crescent, Suburb R, and the distribution of its sale proceeds. The court also addressed various ancillary matters relating to the children's welfare, communication between parents, and the conduct of the parties.
Loughnan J made orders discharging previous parenting orders and establishing new arrangements. The children were ordered to live with the father, conditional on his compliance with specific counselling and therapeutic requirements. The father was granted sole parental responsibility, with the mother retaining sole responsibility for decisions concerning the children's Aboriginal heritage, provided these did not create obligations on the father without his consent. Detailed provisions were made for the children's time with the mother, including specific arrangements for weekends, school holidays, and communication. The court also imposed restraints on both parents regarding discussions about the proceedings with the children and negative comments about each other. In relation to property, the mother was ordered to sell the M Crescent property, with the proceeds to be applied first to sale costs, then to discharge a mortgage, followed by a 59% share to the father, discharge of any other secured debt, and the balance to the mother. Provisions were also made for the sale process, including the nomination of professionals if the parties could not agree, and the mother was to pay the mortgage instalments and outgoings pending the sale.
The court also ordered the father to undergo individual counselling and to ensure the children continued attending counselling. Both parents were restrained from discussing the proceedings with the children or making derogatory comments about the other parent. Specific orders were made regarding the exchange of personal property and the execution of necessary documents, with the Registrar empowered to act on behalf of a defaulting party. Leave was granted for either party to apply to restore the proceedings within 21 days for agreed amendments or wording adjustments to the orders.
Orders
Orders of the court
Parenting
1.
All previous parenting orders in relation to the children, P PAVEL, born … May 2001, and N PAVEL, born … September 2002 ("the children") are discharged.
2.
The children shall live with father conditional upon the father’s compliance with Orders 18 and 19 below.
3.
The father shall have sole parental responsibility for the children subject to Orders 4 and 5 below.
4.
That prior to making any decision in relation to a major long term issue concerning either of the children, the father shall:
(a) Notify the mother in writing of his proposal;
(b) Invite the mother’s input within a reasonable timeframe, and
(c) Take into account any response from the mother (provided such response is received within the nominated timeframe).
5.
The mother shall have sole parental responsibility for decisions in relation to the development of the children's understanding of and connection to their Aboriginal heritage provided that such decisions do not create obligations on the father without his prior consent.
6.
The children shall spend time with mother as follows:
(a) During school terms – on each alternate weekend from after school on Friday until before school on Monday (or Tuesday if it is a long weekend) commencing on the first weekend of each school term.
(b) During school holidays:
(i) For the first half of the Term 1, 2 and 3 school holidays in each year.
(ii) For the first half of the Term 4 school holidays in odd numbered years and the second half in even numbered years.
(c) From 9 am on Mother’s Day until the commencement of school the following day in the event that Mother's Day does not fall on a weekend that the children are otherwise with the mother.
(d) At other times as agreed between the parents.
7.
For the purposes of Order 6(b):
(a) The first day of the school holiday period is the last day of the school term.
(b) The last day of the school holiday period is the day before the first day that the children are required to return to school.
(c) If the total number of days in the school holiday period is an even number then changeover will occur at 5.00 pm on the last day of the first half.
(d) If the total number of days in the school holiday period is an odd number then changeover will occur at 12 noon on the middle day.
8.
Notwithstanding any other Order, in the event that Father's Day falls on a weekend when the children are with the mother, then the mother shall return the children to the father at 9 am on Father's Day.
9.
Changeover shall occur at school on school days and otherwise at X Contact Service, and if X Contact Service is not available, then at … Mc Donald’s Restaurant, unless otherwise agreed in writing between the parents.
10.
For the purposes of collecting or dropping the children, or H, at R Public School, the father (and/or his agent, including Ms B) shall utilise the school entrance on the western side of the school near the tennis court and Community Centre only, and the mother (and/or her agent, including Mr F) shall utilise the main entrance gate in front of the School Office only.
11.
Each party shall facilitate telephone communication between the children and the mother each Wednesday between the hours of 5 pm and 6 pm as follows:
(a) The mother shall provide the children with a mobile telephone to be used for the purposes of this Order.
(b) The mother shall pay any costs associated with the mobile telephone.
(c) The mother shall call the children on the mobile telephone.
(d) The father shall ensure that the mobile telephone is fully charged, switched on and available to the children at the relevant time.
(e) The father shall ensure that the mobile telephone is not used by the children (or any other person) for any purpose other than this Order without the mother's prior consent.
12.
The father shall forthwith do all acts and things necessary to authorise R Public School (and any other school which either of the children attend in the future) to provide directly to the mother:
(a) A copy of the children's school reports;
(b) A copy of school notices, newsletters and other general information provided to parents; and
(c) A copy of school photograph order forms.
13.
The mother be and hereby is restrained from attending at R Public School (or any other school which the children attend in the future) except for the purposes of collecting and delivering the children in accordance with Order 9 above, SAVE THAT the mother is permitted to attend at the school:
(a) For the purposes of meeting with the Principal or class teacher to discuss the children's academic progress, such meetings to occur by prior arrangement with the Principal or class teacher and only at the times nominated by the Principal or class teacher, and
(b) For the purposes of attending school functions, performances and events involving either of the children with the father's prior consent.
14.
In relation to weekend sporting activities:
(a) The father is permitted to enrol the children in one weekend sporting activity during each school term.
(b) The father shall provide the mother with all relevant details in relation to the children's weekend sporting activities, including venue, dates and times. In the event that such information is publically available on the internet, then the father shall provide the mother with the details necessary to enable her to access that information.
(c) The mother shall facilitate the children's attendance at their weekend sporting activities during their weekends with her.
(d) In the event that the mother is unable to facilitate the children's attendance, then she is to notify the father and the children's time with her shall commence at the conclusion of the sporting activity.
15.
Each parent shall notify the other as soon as practicable of any serious illness or injury or hospitalisation involving either of the children while in that parent's care.
16.
The father shall promptly provide the mother with a copy of any specialist medical reports in relation to either of the children and details of any medication prescribed for the children to be taken during periods of time with the mother together with a sufficient quantity of the medication itself or a prescription so as to allow the mother to obtain that medication for those periods.
17.
Each parent shall keep the other informed of their residential address and contact telephone number(s) and notify the other of any change within 48 hours.
18.
The father shall sign all documents and do all things necessary to undergo individual counselling to assist him in relation to his parenting of the children, and in particular, to develop insight into his personality structure and how it impacts on others (in particular, the children). For this purpose:
(a) The father is to make and attend an appointment with a child and family psychologist nominated by Independent Children's Lawyer in consultation with Dr Q within 2 months.
(b) The father is to attend ongoing sessions at such frequency as recommended by the psychologist.
(c) The father is to comply with the psychologist’s recommendations in relation to treatment.
(d) The Independent Children's Lawyer has leave to provide the psychologist with a copy of Dr Q’s report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for judgment.
19.
The father is to ensure that the children continue to attend upon Ms E for counselling at such frequency and for so long as recommended by Ms E.
20.
The Independent Children's Lawyer has leave to provide Ms E with a copy of Dr Q’s report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for judgment.
21.
Each parent is hereby restrained from:
(a) Discussing these proceedings or any of the issues raised in these proceedings with the children or within their hearing;
(b) Making negative, critical or derogatory comments about the other parent or the members of the family of the other parent to the children or within their hearing;
(c) Questioning the children about their views and wishes in relation to their living arrangements and the time they spend with the other parent;
(d) Questioning the children about their attendance upon Ms E or the school counsellor;
(e) Contacting Ms E or a school counsellor except for the purposes of making an appointment for either of the children or at the request of Ms E or the school counsellor;
AND each parent shall use their best endeavours to ensure that no other person does any of the above.
Property
22.
The mother shall to all acts and things necessary to cause the property known as M Crescent, Suburb R, being the whole of the land in Folio Identifier …, to be sold and to cause the proceeds of sale be applied as follows:-
a) to the costs of sale including agent commission, advertising expenses and legal costs;
b) to discharge the mortgage to the … Credit Union;
c) to the father 59% of the balance;
d) to discharge any other secured debt;
e) as to the balance, to the mother.
23.
If the parties are unable to agree as to the identity of the Solicitor or Agent to act on the sale of the property then either party may request:
a) The President for the time being of the Law Society of New South Wales to nominate a Solicitor to act on behalf of the mother; and or
b) The President for the time being of the Real Estate Institute to nominate a Real Estate Agent to act as the Agent on the sale.
24.
The parties shall bear equally the cost of any such nomination and any moneys payable by any party pursuant to any such nomination shall be deducted from that party’s share of the proceeds of sale referred to in Order 22 hereof.
25.
The parties shall agree in respect of all terms and conditions of sale. If they are unable to agree in respect of any such, either party may refer such disagreement to the nominee of the President for the time being of the Parramatta and District Law Society and the cost of any such nomination or determination shall be borne equally by the parties.
26.
Unless the parties otherwise agree in writing, the property shall be offered for sale by auction within eight (8) weeks of the date hereof. The mother shall accept any bid or offer which is within 5% of the reserve price. If the property is not sold it is to be relisted for sale within a further eight (8) weeks and the reserve price shall be reduced by a further 5%. If again not sold the property shall continue to be offered for sale at eight (8) week intervals with a cascading reserve price of -5% at each auction.
27.
Pending the payment to the father in accordance with Order 22 above, the mother shall pay all instalments on the … Credit Union loan secured on the property and all other outgoings on the property as and when they fall due.
28.
By consent the father shall cause to be delivered up to the mother within 7 days of these Orders by arrangement through their solicitors the following items of personalty:
(a) … cream lounge.
(b) … coffee table.
(c) Cream lemon and blue stripped lounges (two and three seater).
(d) Mundial knife block set.
(e) Evinrude gas heater.
29.
Subject to these Orders and the rights of any third party, each party shall otherwise retain to the exclusion of the other any real or personal property standing within the power, possession or control of such party.
30.
In the event that either party fails or neglects to execute any necessary document or to give any necessary authority or consent or any other act or thing necessary to give effect to any of the Orders herein with 14 days of being requested so to do in writing, then, the Registrar, or Deputy Registrar, of the Court shall be appointed pursuant to s.106A Family Law Act 1975 to execute any such document, authority or give such consent, direction or do any other thing necessary so as to give effect to the Orders herein for and on behalf of such defaulting party.
31.
Leave is granted to either party to apply within 21 days, on notice to the other party and if relevant, to the ICL, to restore the proceedings before Loughnan J in relation to any agreed amendment to these orders or in relation to the wording of these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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