Skerrett & Kryvenko
[2022] FedCFamC1F 400
Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Skerrett & Kryvenko [2022] FedCFamC1F 400
File number(s): BRC 4906 of 2019 Judgment of: CAREW J Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – PARENTING – Where an order is made by consent of the parents – Where the independent children’s lawyer neither consented nor opposed parts of the Order
FAMILY LAW – PROPERTY – Where an order is made by consent of the partiesLegislation: Family Law Act 1975 (Cth) Number of paragraphs: 10 Date of hearing: 30 – 31 May 2022 Place: Brisbane Counsel for the Applicant: Mr Thomas Solicitor for the Applicant: VM Family Law Counsel for the Respondent: Mr Arnold Solicitor for the Respondent: The Rockhampton Law Practice Counsel for the Independent Children’s Lawyer: Dr Sayers Solicitor as the Independent Children’s Lawyer: Madden Solicitors ORDER
BRC 4906 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SKERRETT
ApplicantAND: MS KRYVENKO
RespondentINDEPENDENT CHILDREN’S LAWYER
order made by:
CAREW J
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS BY CONSENT THAT:
Parenting
1.That all previous Orders and Parenting Plans be discharged.
Parental Responsibility
2.The applicant (hereinafter referred to as “the father” or “the husband”) have sole parental responsibility in respect of major long term decisions for the child, X born 2011 (“the child” or “X”) save that the father shall, prior to making any decision, consult with the respondent (hereinafter referred to as “the mother” or “the wife”), with such consultation to include but not be limited to:
(a)advising the mother in writing not less than 14 days prior to any decision intended to be made, save in the event of an emergency;
(b)seeking the mother’s written response in relation thereto and the mother to provide the father with the response within 7 days of receipt of the advice referred to in paragraph 2(a) hereof;
(c)considering by reference to the best interests of the child any such response prior to making any such decision; and
(d)advising the mother in writing as soon as practicable of his ultimate decision.
Live with
3.That the child live with the father and for this purpose:
(a)The father shall be permitted to relocate the child to the Brisbane region immediately and to remain there until 4 October 2022, by which time the father is to relocate to the City B region with X.
(b)The mother shall deliver the child to the office of Ms C at City D at 12.30pm on Thursday 2 June 2022 and the father shall collect the child forthwith thereafter (as directed by Ms C).
(c)Pursuant to s65L of the Family Law Act 1975 (Cth), Ms C will supervise the changeover pursuant to this clause, with the costs of Ms C’s services to be met by Legal Aid Queensland (if funding is made available) or otherwise by the father at first instance, but with those costs to be reimbursed to him from the proceeds of sale of the former matrimonial home, before those proceeds are otherwise disbursed between the parties pursuant to any other Order.
(d)When the child is living with the father in the Brisbane area he will attend E School and when the child is living with the father in the City B area he will attend F School.
THE COURT FURTHER ORDERS BY CONSENT OF THE PARTIES BUT NOT OPPOSED BY THE INDEPENDENT CHILDREN’S LAWYER THAT:
Time with
4.For a period of 1 month from the date the child transitions into the care of the father, the child spend no time and not communicate with the mother.
5.The child will communicate with the mother by Skype (or other such application) on two occasions between 1 July 2022 and 4 October 2022 and failing agreement as to when that occurs, it shall occur on 5 July 2022 and 26 August 2022.
Time in October 2022
6.After 4 October 2022, the child shall spend time with the mother as can be agreed between the parties but failing agreement each fortnight for a period of up to two hours on two occasions with such time to be supervised by an independent supervisor, in City B or City G, in October 2022.
7.For the purposes of paragraph 6, the parties shall agree upon an independent supervisor, within 4 weeks of the date of this Order and failing agreement:
(a)After 4 weeks following the date of this Order and no longer than 5 weeks following the date of this Order, the mother will nominate a Contact Centre in City B or City G;
(b)Within 48 hours of the mother providing the father with details of the Contact Centre, both parties are to contact the Contact Centre and make arrangements to attend for an Intake Interview, at the first available opportunity;
(c)The child’s time with the mother will be supervised by the Contact Centre nominated in paragraph 7(a) and at such times as can be facilitated by the Contact Centre; and;
(d)The costs of the Contact Centre are to be paid by the mother and the mother will give the father no less than 2 weeks’ notice of when it is to occur.
Time in November 2022
8.Provided the mother has had 2 supervised visits, the child will commence spending time with the mother as agreed between the parties but failing agreement each Sunday from 9.00am until 11.00am.
9.For the purposes of paragraph 8, changeover of the child will be at a location nominated by the father, with such nomination to be provided to the mother no less than 48 hours prior to the time the child is to spend with the mother.
Time in December 2022 / January 2023 / February 2023 and thereafter
10.Following the child spending time with the mother in accordance with paragraph 8, the child will spend time with the mother as can be agreed between the parties but failing agreement on a gradually increasing basis as follows:
(a)For a period of one month (December 2022), each Sunday from 9.00am until 5.00pm;
(b)In January 2023:
(i)On the weekend of 7 January 2023 from 9.00am Saturday until 5.00pm Sunday; and
(ii)On the weekend of 21 January 2023 from 9.00am Saturday until 5.00pm Sunday.
(c)From 5.00pm Friday 3 February 2023 until 9.00am Monday 6 February 2023;
(d)From 17 February 2023, every second week with changeover on Friday at 3.00pm at the child’s school or otherwise at McDonald’s restaurant at City B.
THE COURT FURTHER ORDERS BY CONSENT THAT:
Special Days
11.Regardless of paragraphs 5 to 10, and unless any of the following periods fall within the period referred to in paragraph 4:
(a)The child shall spend time with the mother on Mother’s Day from 9.00am until 5.00pm and if this weekend falls on a day that the child would otherwise be living with the father, the mother shall collect the child from and return the child to the father.
(b)That the child shall spend time with the father on Father’s Day from 9.00am until 5.00pm and if this weekend falls on a day that the child would otherwise be living with the mother, the father shall collect the child from and return the child to the mother.
(c)On the birthday of the child, he will spend time with the parent he is not living with on the day:
(i)If a school day, from after school until 7.00pm;
(ii)If a non-school day, from 12.00pm until 5.00pm; and
(iii)With that parent to collect and return the child.
(d)On the birthday of each parent, he will spend time with that parent:
(i)If a school day, from after school until 7.00pm;
(ii)If a non-school day, from 12.00pm until 5.00pm;
(iii)With that parent to collect and return the child; and
(iv)Each party will facilitate the children speaking to the other parent on the telephone at all reasonable times they may request.
12.That any changeover not otherwise provided for in this Order or at the child’s school will be at a place agreed between the parties and failing agreement as nominated by the father and advised to the mother, in writing, no less than 24 hours prior to the changeover.
13.Neither parent shall discuss these proceedings with the child.
14.That each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited, and both parents shall provide such written authorisation as is necessary to give effect to this, and have leave to provide the school with a copy of this Order.
15.That each party is hereby authorised to obtain from the child’s medical and other allied health service providers any information that the said providers are otherwise lawfully permitted to provide, and both parents shall provide such written authorisation as is necessary to give effect to this, and have leave to provide the providers with a copy of this Order.
16.That the parties advise the other party of any change of telephone number or residential address within 24 hours of such change occurring.
17.That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
18.That the child is to attend counselling and for this purpose:
(a)The father is to consult with the mother as to an appropriate counsellor;
(b)If no agreement is reached, the father is to appoint a counsellor and advise the mother of the name and contact details of the Counsellor; and
(c)The father has leave to provide the counsellor with the Family Reports dated 17 December 2019 and 11 May 2022 and a copy of this Order.
19.The mother, her servants and/or agents be restrained and are hereby restrained by injunction from removing or attempting to remove the child, X born 2011 from the Commonwealth of Australia.
20.Neither parent will contact the other, or the other’s partner other than in relation to matters pertaining to X and when such contact is necessary it shall occur by email or text message or via AppClose Application which will be obtained by each parent within 24 hours of the date of this Order and used where possible.
21.X shall be at liberty to contact either parent by phone when he wishes (except during the period referred to in paragraph 4).
22.Either parent may contact X by phone (including video-phone link) each Wednesday between 6.30pm and 7.00pm (except during the period referred to in paragraph 4) and the other parent will ensure that X is available to take the call. The mother shall ensure that discussions with the child during phone (including video-phone link) time are in English and the father is at liberty to intervene in the event that the said discussions are in another language.
23.The mother will attend upon her General Medical Practitioner (GP) to obtain a referral for a Mental Health Plan including counselling (which the mother will attend) directed to understanding the impact of involving the child in adult issues and to improve co-parenting skills and will provide a copy of the Family Report dated 18 May 2022 and a copy of this Order to both her GP and any counsellor to whom she is referred.
24.Once the father has moved to City B with X, the father will obtain details as to the usual general medical practitioner’s clinic attended by X, and where possible engage that same clinic for X when required.
25.Any communication between the mother and the child at the Contact Centre shall be in English, and:
(a)The contact centre is to be provided a copy of this Order; and
(b)The contact centre is at liberty to intervene in the event that the mother communicates with the child in another language and is at liberty to advise the father of any such circumstances arising due to X’s time with the mother at the contact centre.
THE COURT FURTHER ORDERS BY CONSENT OF THE PARTIES THAT:
Property
26.An Order by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 27 to 38 of this document.
27.That the property at H Street, Suburb J in the State of Queensland (“Suburb J Property”) be listed and remain listed for sale with M Real Estate, City K (“the Agent”).
28.The Suburb J Property shall be sold by private treaty, within 2 months from the date of this Order or such other time as can be agreed between the parties in writing and the Suburb J Property shall be listed at a price as agreed between the parties and failing agreement as stipulated by the Agent.
29.In the event the Suburb J Property is not sold within 2 months from the date of this Order or such other time as agreed between the parties, then the parties shall do all acts and things necessary, including signing all documents so as to list the Suburb J Property for sale by private auction.
30.In the event a private auction occurs, the parties shall agree upon the appointment of an Auctioneer (“the Auctioneer”) and failing agreement, the Auctioneer shall be nominated by the Agent and the reserve price shall be agreed by the parties and failing agreement as set by Auctioneer or Agent.
31.In the event the Suburb J Property is not sold by auction, then unless otherwise agreed in writing by the parties, the Suburb J Property be submitted to a second auction within 3 months from the date of the first auction and thereafter every 3 months from the date of the last auction until the Suburb J Property is sold. The auction is to be conducted by the sale auctioneer as previously nominated subject to mutual agreement to the contrary by the parties and the reserve price shall be agreed by the parties and failing agreement as set out by the Auctioneer or Agent.
32.For the purpose of the sale of the Suburb J Property, the parties shall sign all documents, including any Contract for Sale and Mortgage Discharge documents within 48 hours of a request to do so by the other party, the other party’s solicitor or the Agent or Auctioneer.
33.That the sale proceeds from the sale of the Suburb J Property be divided in the following manner and priority:
(a)To pay all necessary selling costs associated with the property, including commission fees, legal costs and other necessary selling costs;
(b)In discharge of the NAB home loan and release of the Registered Mortgage secured over the Suburb J Property in favour of NAB;
(c)By payment to the wife the sum of $8,550;
(d)By payment to the husband any amount he is due to be reimbursed for Ms C’s costs incurred in accordance with paragraph 3;
(e)That any remaining sale proceeds be split on the following basis:
(i)50% to the wife; and
(ii)50% to the husband.
34.That the husband retain and the wife relinquish and/or transfer to the husband all of her right, title and interest in and to the following:
(a)The household furniture and effects in the husband’s possession;
(b)Any monies to the credit of the husband in any bank account;
(c)The husband’s Motor Vehicle 1, registration number …; and
(d)The husband’s Superannuation.
35.That the wife retain and the husband relinquish and/or transfer to the wife all of her right, title and interest in and to the following:
(a)The household furniture and effects in the wife’s possession;
(b)Any monies to the credit of the wife in any bank account;
(c)The wife’s Motor Vehicle 2, registration number … including all keys in the husband’s possession.
36.That immediately upon this Order being made by the Court, the parties shall do all acts necessary and sign all necessary documents to close any and all joint bank accounts, including the N Bank account, after allowing for any unrepresented cheques, with any credit funds held in any joint account to be distributed to the husband.
37.That save for the assets specifically mentioned herein, the parties each retain for his/her sole use and benefit absolutely all other assets in their respective possession, or of which he/she is the legal owner.
38.That the husband and wife each be responsible for liabilities incurred in their name including all borrowings, personal loans and credit card facilities and shall indemnify and keep indemnified the other against any liability that may occur in respect thereof.
39.That the husband and wife each do all acts and things necessary including signing all necessary documents so as to give full force and effect to the provisions of this Order and in the event that either party refuses or neglects to comply with any provision of this Order within 14 days of a written request to do so by the other party, then a Registrar of the Court be appointed, pursuant to Section 106A of the Family Law Act 1975 (Cth), to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this Order.
40.That the parties comply promptly with all requisitions issued by the Office of State Revenue, Land Titles, Main Roads Department and any other Government Department in relation to any document executed or transacted pursuant to or put into effect the terms and conditions of this Order.
41.That each party pay their own legal costs in the preparation of this Order and putting settlement into effect.
42.That both parties have liberty to apply to the Court on the giving of 7 days’ notice in writing for the interpretation and/or enforcement of the terms and conditions hereof and for consequential Orders.
43.That all outstanding applications are otherwise dismissed.
NOTATIONS:
A.In the event that the mother wishes to apply for a variation of paragraph 2, after a period of 12 months from the date of this Order, then the father agrees not to raise the principle in Rice v Asplund as a bar to any such application.
B.That in the event that the mother fails to communicate with X at all between now and 4 October 2022, then the father shall be at liberty to apply for a variation of the paragraphs requiring his relocation to City B within the timeframe provided by the Order.
C.No adverse inference against the mother will be drawn by any delays in arranging to spend time with X in accordance with paragraphs 6 and 7, occasioned by the availability of the Contact Centre.
D.The parties will, in the event of a dispute in relation to the operation of the paragraphs relating to X (the parenting Orders), first attempt to resolve that dispute by mediation.
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 pseudonym Skerrett & Kryvenko has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
This matter was listed before me for the hearing of contested parenting and property applications. It was listed for three days. On day one, the parties indicated that they required some time to discuss possible settlement. They did reach an agreement, but by the time the matter came before me late on the first day, there were a number of handwritten amendments to the proposed Minute of Order. Out of an abundance of caution, all parties agreed that in circumstances where the mother required the assistance of a Country L interpreter (provided by the Court), the matter was adjourned overnight so that a typed version of the agreed Minute of Order could be prepared. That would give the mother, in particular, an opportunity to review her agreement to the proposed Order and the parties could then affix their initials to each page of the proposed Order.
It’s now nearly lunchtime on the second day and both the mother and father urge upon me the making of final parenting Order. The independent children’s lawyer (“ICL”) certainly supports some of the Order, including a change for the child of the relationship, X, who is nearly 11 years of age, from living primarily with his mother to living with his father, but considers the proposed transition to equal time to be too rapid.
The parents were in a relationship for about ten years. They have been separated for about the last three or so years. For some time, the father continued to see X on a fairly regular basis. There was a breakdown in the time that he spent with the child, in or about October of last year. It then became apparent that the mother had involved X in the dispute between the parents. She had videoed the child talking about the financial matters concerning the father and the mother, making some fairly vague allegations of being inappropriately touched by the father and expressing a dislike and rejection of the father.
As a consequence, the father has had virtually no contact with X since October last year. There may have been a few telephone calls. The parents have agreed for X to leave his mother on Thursday of this week, with the assistance of the family report writer, to go and live with the father full time and for him not to see or communicate with his mother for a month and then between July and October, for him only to communicate via Skype on two occasions before commencing, initially, two supervised visits and then moving to unsupervised visits in the day-time, gradually increasing so that, by February next year, he will be living in a week-about arrangement in City B. An important premise of the agreement reached between the parents is that the father is going to uproot himself, his new partner and their (by then) new baby to live in City B.
Understandably, the ICL has some reservations about what is proposed in terms of the transition and the reintroduction of the mother given the history. However, both parents urge the entirety of the Order upon me on the basis that the father’s commitment to move to City B demonstrates, to the mother, a commitment and focus on X’s best interests. The mother is committing to this change in living arrangements for X in this period between now and February next year as a demonstration, to the father, of her commitment to the child’s relationship with the father and to persuade him to trust her. That is a pretty big concession that each of the parties have made in seeking to persuade the other that they should trust each other and that they each have X’s best interests at heart going forward.
One can only hope so. It is unusual and fairly rare for a judge to refuse to make an Order by consent. The Court is of course required to be satisfied that the proposed Order is in the child’s best interests in the particular circumstances of the case. Despite the reservations that the ICL has to paragraphs 4 to 10 of the Minute of Order (time with the mother) I am persuaded, given the submissions made on behalf of each of the father and the mother, that I should make the Order as agreed to by the parents in their entirety, with their consent.
The best thing that these parents can do for their son is to present a united front. By that, they can demonstrate to him that he has two parents who love him very much. And I am certainly confident that both of them do.
I think it is very sensible for the mother to have committed to engaging in some counselling, to bring home to her the damage that can be caused by involving a child directly in a dispute between the parents as she has done in the past. She has already gone a long way in demonstrating an acceptance of that by agreeing to the Order today. The father has also done a lot in demonstrating to the mother that he is committed to X and X’s way of life by relocating to City B.
In those circumstances, I am satisfied that this Order does represent the best interests of X in the particular circumstances of this case. I can only trust that the parents will continue to be committed to what they have, effectively, told the Court today about their love and commitment for their son. And for his sake, I hope that they do comply with the sentiments that are expressed by this Order.
I am also satisfied that this is an appropriate case in which to make a property settlement Order pursuant to section 79 of the Family Law Act 1975 (Cth). I am persuaded that the Minute of Order agreed to by the parties is just and equitable.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 2 June 2022
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