JILLET & SULLIVAN

FAMILY COURT OF AUSTRALIA

JILLET & SULLIVAN

[2017] FamCA 573

FAMILY LAW – CHILDREN – Parenting orders – Where the wife has been diagnosed with a Delusional Disorder which involves a bizarre set of beliefs about the risk of sexual abuse posed by the husband and the paternal family – Where the wife will likely require anti-psychotic medication for a significant period of time and extensive psychotherapy for that disorder – Where the parties’ son has and the parties’ daughter probably also has a Delusional Disorder induced by the wife’s mental illness – Where the wife withdrew any allegation that the husband or his family had engaged in a sexually inappropriate manner towards the children or that the husband had engaged in family violence – Where the parties’ daughter is attached to her mother and has been alienated from her father for more than two years – Where the parties’ daughter has not attended mainstream school since 2012 and has an array of other serious problems – Where the parties’ son in recent times has become more resistant to spending time with his father – Where the single expert recommends separating the parties’ daughter from her mother’s influence for a period of time in order for her to transition into mainstream schooling – Where the children’s mental health is at serious risk in the wife’s household but this risk is balanced against risks inherent in the daughter’s reaction to an order moving her to her father’s residence – Where it is found not to be in the children’s best interests to remain living with their mother and an order is made for the children to be moved to live with the husband and for the children to have no face-to-face contact with the wife for a period of three months and have supervised contact for a period of six months after that time on the basis that the wife is continuing psychiatric treatment – Where an order is made for the husband to have sole parental responsibility – Where either party and the Independent Children’s Lawyer have liberty to relist the matter in relation to the implementation of the orders and the Independent Children’s Lawyer’s appointment will continue for another 12 month period.

FAMILY LAW – PROPERTY – Where the net assets are divided as to 55 per cent to the husband and 45 per cent to the wife based on contributions and no further adjustment is made – Where the husband is to pay the wife a sum of money which he does not totally have available to him –Where the husband is to have exclusive occupancy of the property in which he will reside with the children for a period of two years and upon the expiration of that two year period the wife is to transfer her interest in the husband’s property to him and the husband is to pay the wife the remaining monies owed to her – During the period the husband has exclusive occupancy he shall continue to pay for the mortgage, water rates and insurances on the property in which the wife will reside.

FAMILY LAW – PROCEDURAL – Based upon the report and recommendations of an experienced Child and Family Psychiatrist, the children’s induced mental illnesses and the risks associated with the implementation of the single expert’s recommendations, the court, pursuant to s 91B Family Law Act 1975 (Cth), made a request to the Secretary of the Department of Family & Community Services for the Department to become a party to the proceedings – The Department declined the request indicating that the children in this case “cannot be prioritized above other more vulnerable children” – Where the Secretary should have not refused the court’s request to intervene in this case.

Family Law Act 1975 (Cth)

Biltoft and Biltoft (1995) FLC 92-614
Secretary of Department of Health and Human Services & Ray and Ors (2010) FLC 93-457

APPLICANT:

Mr Jillet

RESPONDENT:

Ms Sullivan

FILE NUMBER:

SYC

6597

2014

DATE DELIVERED:

7 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

24 – 28 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

GJ Gooden Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Boyce Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

Parenting

All previous parenting orders are discharged.
The husband have sole parental responsibility for the children, B born on … 2004 and C born on … 2006 (“the children”) provided:
2.1.The husband shall inform the wife in writing as soon as possible of any decision he has made relating to a major long term issue in respect of either child;
2.2.This order shall not apply to decisions about changing either child’s name or to changes to either child’s living arrangements which make it significantly more difficult to implement orders which allow the children to spend time with the wife.
The children live with the husband.
The face-to-face time between the children and their mother is suspended for a period of three months to allow an opportunity for:
4.1.B to transition into formal education;
4.2.The wife to consult with a psychiatrist with a view to being prescribed a medication regime and obtaining psychotherapy; and
4.3.C and B to settle into the living arrangements with their father.
Upon the expiration of three months after the date of these orders the wife is to provide to the husband a report from her treating psychiatrist with such report to address compliance and stabilisation of a medication regime and engagement with psychotherapy.
If after three months the wife is to continue treatment with a psychiatrist and is compliant and stabilised in a regime of medication and treatment, the husband shall arrange for the children to spend time with the wife in accordance with the following orders.
The husband shall, as soon as practicable, after the date of these orders, nominate a supervised contact service and the wife and husband shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time as outlined at paragraph 8.
Subject to order 6, after three months from the date of these orders, the children shall spend supervised time with the wife facilitated by a professional supervision service once per week for a period of three hours, and continue for a period of six months with such costs for supervised agency to be shared equally between the wife and the husband.
At the expiration of six months of supervised time and upon the wife providing to the husband a report after five months of supervised time from her treating psychiatrist indicating compliance and stabilisation of a medication regime and engagement with psychotherapy the children shall spend time with their mother on an unsupervised basis once per week from 9am to 5pm each Sunday (or for such other eight hour period as may be agreed by the parties in writing and at any other additional times as may be agreed by the parties in writing).
The children shall communicate with their mother once per week on a day as agreed between the wife and husband and failing agreement at 6 pm Eastern Standard time each Wednesday by telephone with such time being supervised for a period of 12 months by the husband or paternal grandmother by placing the phone on loud speaker and at the expiration of 12 months and subject to the wife’s compliance with paragraph 5 and 9 such telephone communication shall be not be subject to supervision.
The wife shall not discuss these proceedings with the children including any evidence adduced during these proceedings.
The husband shall forthwith advise the wife of any hospital admissions or urgent medical or dental treatment required by each child
The husband shall within seven days of receipt thereof provide to the wife:
13.1.A copy of each child’s school reports;
13.2.A copy of school each child’s school photo;
13.3.A copy of Certificate of attainment/certificates from school.
Should either child run away from their father’s home and return to the wife’s or the maternal grandmother’s homes, the child or children shall forthwith be returned to the husband’s home by the wife or the maternal grandmother. In the event the children or a child refuses to return to the husband’s home, the husband or the Independent Children’s Lawyer has liberty to restore this matter on 24 hours’ notice.
The wife shall not be at liberty to attend either of the children’s educational facility unless the husband in writing invites the wife to attend.
Within 14 days of the date of these orders the wife is to attend upon her General Medical Practitioner and obtain a referral to a suitably qualified psychiatrist with expertise in working with Delusional Disordered persons.
Within 21 days of the date of these orders the wife is to make a time to attend upon a suitably qualified psychiatrist and to advise the Independent Children's Lawyer and the husband of that scheduled appointment.
Upon compliance with paragraph 16 the Independent Children's Lawyer shall provide to the nominated psychiatrist a copy of the Part 15.5 Single Expert Report prepared by A/Prof D and a copy of these Reasons for Judgment.
Within 21 days of the date of these orders, the husband is to contact COPMI (Children of Parents with a Mental Illness) and make a referral for C to attend upon a psychologist. Once B has accepted the change of placement, the husband is to make arrangements for her to also attend a psychologist at COPMI.
The husband is to advise the Independent Children's Lawyer of the name and appointment times scheduled for the children at COPMI.
The Independent Children's Lawyer has leave to provide to the nominated psychologist at COPMI a copy of the Part 15.5 Single Expert Report prepared by A/Prof D and a copy of these Reasons for Judgment.
The Independent Children's Lawyer shall forthwith make enquires of relevant personnel from the Department of Education as to whether B is able to access any specialised school or resources within the Department of Education to assist B transition to formal education and advise the husband.
The husband is forthwith to make a contact with E School and any other Department of Education Facility as advised by the Independent Children's Lawyer to obtain an enrolment for B in formal education.
Neither the wife or husband shall denigrate or cause any third party to denigrate the other parent or members of the extended family in the presence or hearing of the children.
The husband is to do all acts and things necessary to facilitate C’s and B’s attendance upon the Independent Children’s Lawyer for the purpose of having these orders explained to them.
The maternal grandmother is to do all things she is able to to assist in ensuring the children live with their father. The Independent Children's Lawyer is to provide a copy of these Reasons to the maternal grandmother.
The Independent Children's Lawyer is to forward a copy of these Reasons for Judgment to the Secretary of the Department of Family & Community Services and to A/Prof D.
The Independent Children’s Lawyer’s appointment will continue for a period of 12 months unless earlier discharged by the court.
Either party and the Independent Children’s Lawyer has liberty to otherwise relist this matter in respect of any application which relates to the implementation of these orders on seven days’ notice. Any such application is to be listed before Watts J if he is reasonably available.
Both parties are to pay one half of the costs of the Independent Children’s Lawyer as agreed or assessed on the basis that the Legal Aid Commission won’t collect those costs for a period of two years.

Property

Pursuant to s 79 Family Law Act 1975 (Cth) an order is made in the terms of paragraphs 32 to 41 below.
The husband provide to the wife a transfer in registrable form of his right, title and interest in the property at F Street, Suburb G (“the Suburb G property”).
The husband have exclusive occupancy of the property at H Street, Suburb J (“the Suburb J property”) for a period of two years.
The husband pay as they fall due the regular instalments of the first mortgage, water rates and insurances on the Suburb G property for a period of two years.
Within 28 days and at the same time:
35.1.The wife do all things and sign all necessary documents to allow Mr K Jillet to secure a sum of up to $712,000 against the Suburb J property;
35.2.The husband pay the wife’s lawyers the sum of $150,000.
Upon the expiration of two years and at the same time:
36.1.The wife transfer to the husband her right, title and interest in the Suburb J property;
36.2.The husband pay to the wife a sum calculated in accordance with the following paragraph;
36.3.The wife discharge the mortgage on the Suburb G property;
The sum referred to in paragraph 36.2 is to be $260,883 plus interest on that amount at the Commonwealth Bank twelve month IBD rates on an annual basis OR 260,883/2,300,000 of the value in two years’ time of the Suburb J property as agreed between the husband and wife or failing agreement as determined by a valuer agreed upon between the parties and if they are unable to agree then a valuer nominated by the President for the time being of the Australian Valuers Institute, whichever is the greater.
Except as these orders provide to the contrary:
38.1.The husband is solely entitled, as against the wife, to all other assets and resources presently in his possession or control including any superannuation benefits and moneys held in bank accounts in his name; and
38.2.The wife is solely entitled, as against the husband, to all other assets and resources presently in his possession or control including any superannuation benefits and moneys held in bank accounts in her name.
The husband forthwith pay A/Prof D in the sum of $5,100.
The husband indemnify the wife in respect of any debt owed to Mr K Jillet and otherwise both parties indemnify each other in respect of debts in their respective names.
In the event that the wife is required to pay all or any of the possible debt to Centrelink in the approximate sum of $35,000 then the wife is to pay 45 per cent of that amount and the husband is to pay 55 per cent of that amount.
The husband is restrained from dealing with or further encumbering the Suburb G property until he has complied with his obligations in accordance with paragraph 34.2.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party.
Each party has liberty to apply in respect of implementation of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jillet & Sullivan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6597 of 2014

Mr Jillet

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The wife has been diagnosed by a very senior and experienced Child and Family Psychiatrist, appointed by the court, with a Delusional Disorder which involves the wife having a bizarre set of beliefs about the risk of sexual abuse which is posed by the husband and members of his family. The wife has induced in the parties’ son, C, aged 10, a Delusional Disorder so that he shares bizarre beliefs about the risk of sexual abuse posed by his father and members of his father’s family. The parties’ daughter, B, aged 13 this month, probably also has a similar induced Delusional Disorder. B is attached to her mother and has been alienated from her father for more than two years. She has not attended mainstream school since 2012. B also presents with an array of other serious problems.
The children currently live with their mother.
Pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”) on 20 April 2017 the court requested the Secretary of the Department of Family & Community Services (“FACS”) to become a party to the proceedings. The Secretary declined the request and stated in a letter dated 7 June 2017, “[t]he reason for this decision is that while valid concerns regarding the children’s welfare and wellbeing have been raised with the Secretary, the current risk of harm assessment does not support intervention in this matter which cannot be prioritized above other more vulnerable children.”
Absent the options the Secretary might provide, the question for decision is what parenting orders should be made in the children’s best interests.
The parties also each seek an order adjusting interests in property.

APPLICATIONS

The parenting orders sought by the Independent Children’s Lawyer are set out in Schedule One. Although the husband originally sought a set of orders which provided for the wife to have substantial and significant time with the children, in final submissions the husband adopted the parenting orders sought by the Independent Children’s Lawyer.
The parenting orders sought by the wife are set out in Schedule Two.
The husband sought a 65.7 per cent adjustment in his favour of the net assets of the parties. The wife sought an overall adjustment of 55 – 65 per cent in her favour if the children were with her and a 50 per cent adjustment if the children were not.

DOCUMENTS

The documents relied upon by each party are set out in Schedule Three. The Independent Children's Lawyer provided three lever arch folders of tender material.

SHORT HISTORY

The wife was born in 1973 and is currently 43 years old.
The husband was born in 1977 and is currently 40 years old.
The parties commenced cohabitation in 2001.
The parties married in 2003.
The parties’ first child, B, was born in 2004, and is currently 12 years old.
The parties’ second child, C, was born in 2006, and is currently 10 years old.
The parties separated on a final basis in August 2014.

CREDIT

Wife

Counsel for the husband submitted that the wife was an unimpressive witness who gave long winded and often non-responsive answers. It was submitted that the court would find that the prospect in her mind of the children being taken away from her has brought her to a point where she would say anything to avoid that happening.
Counsel for the wife submitted that the court would make some allowance for the fact that the wife had recently discovered that she is suffering from a significant psychiatric illness, having hither to been misdiagnosed by a number of the professionals she had seen. It was further submitted that the wife came across as a person who was genuinely willing to enter into treatment for the benefit of not only herself but the children, pointing to the fact that the husband had said in his evidence that he believed that the wife was genuine in wanting treatment.
It is undisputed that parts of the wife’s belief system are bizarre and I do take into account when viewing the wife’s evidence as a whole, the fact that she is suffering from a Delusional Disorder.

Husband

The husband gave evidence in a very straightforward manner. He often easily made concessions against his interest. I have no difficulty in accepting his evidence as being truthful.

Conclusion about the wife and the husband

At the end of the day there was no great conflict between the parties in respect of any evidence that is significant. It is not necessary to make any comparison between the credibility of each of the parties which is convenient given that I have been urged to maintain an ongoing management of the implementation of final orders.

Paternal grandmother

I was particularly impressed with the way the paternal grandmother gave her evidence.

DETAILED CHRONOLOGY

The wife was born in 1973 and is currently 43 years old.
The husband was born in 1977 and is currently 40 years old.
In February 1996 the husband purchased a property at L Street, Suburb M (“the Suburb M property”).
In October 1996 N Pty Ltd was incorporated. The husband is the sole director and shareholder of this company.
In July 1998 the husband purchased a property at O Street, Suburb P (“the Suburb P property”).
In February 2000 the husband purchased a property at Q Street, Suburb R (“the Suburb R property”).
In June 2001 the husband purchased a property at S Street, Suburb T (“the Suburb T property”).
In October 2001 the wife purchased a property at U Street, Suburb V (“the Suburb V property”).
The husband says the parties commenced cohabitation in October 2001. The wife says the parties commenced cohabitation in May 2001 when they both resided at her mother’s home where they lived until October 2001 when the parties moved into the Suburb V property. The wife did not lead any evidence from her mother to corroborate this contention.
In 2002 the wife established the company W Pty Ltd.
In early 2002 the husband purchased a property at F Street, Suburb G (“the Suburb G property”) for $339,500. The parties obtained 100 per cent finance and used the Suburb T property as collateral security. That mortgage was paid out in 2003 by the net proceeds of sale from the Suburb P and Suburb M properties. The husband undertook renovations to the Suburb G property. The parties resided at the Suburb G property until their final separation.
In 2003 the husband sold the Suburb M property.
In July 2003 the husband sold the Suburb P property.
The parties married in 2003.
In February 2004 the wife purchased in her own name a property at X Street, Suburb Y (“the Suburb Y property”). She initially used the property to conduct her business but later leased out the premises.
The parties’ first child, B, was born in 2004, and is currently 12 years old.
After B’s birth the wife ceased employment for about 12 months to care for B until about October 2006.
In 2005 the parties purchased a property at H Street, Suburb J (“the Suburb J property”) for $900,000. St George Bank advanced $540,000 towards the purchase. The husband’s parents provided their property as security. The husband also used the Suburb T property as security. The remaining $360,000 was funded by the parties and the husband’s parents contributing $180,000 each. The property was purchased as joint tenants with the parties and the husband’s parents owning the property as tenants in common in equal shares.
In May 2005 the husband sold the Suburb R property.
The parties’ second child, C, was born in 2006, and is currently 10 years old.
After C’s birth, the wife returned to casual employment.
In 2007 the child B was diagnosed with Sensory Processing Disorder by Ms Z.
On 6 December 2008 the wife left the Suburb G property with the children. She returned about a week later when the husband went to live in the Suburb J property. After this time, the husband saw the children on a regular basis at the Suburb G property.
In 2009 B attended AA Preschool for one to two terms. She was then home-schooled by the wife.
The husband returned to live at the Suburb G property with the wife and the children in mid-2009.
In October 2009 the wife sold the Suburb V property.
In December 2009 the husband sold the Suburb T property.
In late 2009 the husband demolished the existing dwelling on the Suburb J property and constructed a duplex. In late 2010 the husband’s parents moved into one of the duplexes.
In 2010 the wife received an inheritance of $150,000 from her father.
B was enrolled at Suburb G Primary School for the commencement of the 2011 school year. She attended that school from term 4 in 2011.
C commenced attending school at Suburb G Primary School in 2012.
In 2012 the husband commenced working in BB Town and was away from the home on weeknights for about two years.
In November 2012 B ceased to attend Suburb G Public School following, the wife says, a series of incidents that occurred. B has been home-schooled by the wife since this time. In November 2012 Suburb G Public School made a complaint to FACS about the wife and B’s lack of attendance at school.
In 2013 the wife says B was diagnosed with Pervasive Developmental Disorder – Not Otherwise Specified by Dr CC.
In April 2014 the wife sold the Suburb Y property.
In August 2014 the wife made a report to FACS about concerns relating to the husband.
On 2 August 2014 the husband was served with an interim ADVO by police. The parties separated on a final basis on this date. The wife and the children subsequently left the Suburb G property. The husband spent time with the children for about two hours on two occasions in August and September while other people were present and spoke to them on the telephone.
The husband spoke to the children on the telephone on 10 October 2014.
In October 2014 C was enrolled at D School.
On 21 October 2014 the husband filed an Initiating Application..
On 10 December 2014 orders were made for the husband to vacate the Suburb G property and within seven days of him doing so, for the wife to return to that property with the children from which time she was to have sole occupation and exclusive use of the home. The husband was to continue to meet all outgoings of the Suburb G property. The children were to live with the wife and spend time with the husband increasing in time and ending in each Tuesday and Thursday from 1pm to 7pm and each Sunday from 10am to 4pm. That time was to be supervised by the paternal grandmother and/or the paternal aunt on a “without admissions” basis.
On Tuesday 16 December 2014 the husband spent time with the children pursuant to the orders made on 10 December 2014. The husband’s mother, father and sister and her two children were in attendance. The husband only spent two and a half hours with the children without the wife being present on this occasion. Following from this occasion, a pattern emerged where the wife remained in the children’s presence when they spent time with the husband and B generally did not spend as much time with the husband as C did.
In 2015 attempts were made to enrol and integrate the child B into D School without success and she continued to be home-schooled by the wife with the oversight of the Board of Studies.
On 22 January 2015 an Independent Children’s Lawyer was appointed. Orders were also made on this date varying the husband’s time with the children to each Tuesday and Thursday from 3.30pm to 7pm and for the children to be enrolled at D School.
On Sunday 1 February 2015 the husband spent time with C. After 10 minutes standing at the front gate, B refused to go into the husband’s house and left with the wife. Since this time, B has refused to leave the wife’s motor vehicle and spend time with the husband. She has been largely unresponsive when the husband has attempted to engage with her through the car window.
The application for the final ADVO was dismissed in February 2015.
On 14 June 2015 B told C (for the first time in front of the husband) not to get out of their mother’s car to spend time with the husband. C did eventually get of the car to spend time with the husband.
On 13 September 2016 interviews occurred for the expert report of A/Prof D. Further interviews with the single expert occurred on 1 and 2 December 2016.
On 21 December 2016 A/Prof D notified FACS that the children were at risk.
Following the interviews with the single expert in December 2016, C’s visits with the husband became problematic and he started to fail to acknowledge the husband and on occasion did not leave the motor vehicle to spend time with his father.
On 3 March 2017 a deed of loan was entered into between the husband, the husband’s father and the wife for monies to be advanced to the wife to pay outstanding legal fees.
On every other occasion since 7 March 2017 C has got out of the wife’s motor vehicle and spent time with the husband in accordance with the orders.
On 10 March 2017 the children were interviewed by FACS. FACS did not identify any dangers or factors affecting the children’s vulnerability.
On 24 March 2017 a FACS case worker attended the wife’s home and spoke to the wife and B.
On 20 April 2017 the Department was requested to intervene as a party to the proceedings. On this date an order was also made for no further therapists or professionals to be engaged for either child until the final hearing was complete.
In May 2017 the children spent time with the husband and the paternal grandmother. The wife was present during this time. B did not communicate with the husband.
On 11 May 2017 an order was made for A/Prof D’s report dated 21 December 2016 to be released to the legal representatives of the parties and those representatives were directed not to convey to their clients any information in the report until 3 July 2017.

THE WIFE’S PREVIOUS ALLEGATIONS OF SEXUAL ABUSE

The wife previously alleged that the husband and the paternal family have engaged in sexually inappropriate behaviour towards the children. The wife has made notifications to FACS, the police and JIRT.
Neither of the wife’s two trial affidavits contain any allegation of inappropriate sexual behaviour by the husband or the husband’s family. At the hearing the wife did not attempt to maintain any previous allegations she had made about the husband or the husband’s family sexually abusing the children or behaving in a sexualised manner in the children’s presence.
Counsel for the wife made the point that the wife had withdrawn those allegations prior to seeing A/Prof D’s report. However, at a procedural event on 20 April 2017 the wife was well aware that although she was not immediately allowed to see the report, it was likely that there were opinions expressed in that report that made comments about her beliefs in respect of the husband and the husband’s family posing a risk of sexual abuse to the children.
C reported to A/Prof D about being inappropriately touched when his two cousins, aged three and five, climbed over C and C hugged them which he didn’t like, an incident where his paternal grandmother lent over him in a car and pressed her whole body against him and an incident where his paternal aunt pushed him out of the way and her breasts touched him. In a later interview on 1 December 2016, C reported more recent encounters which he interpreted as being sexualised. Two incidents involved his paternal grandmother and three year old cousin touching him on the bottom. Another incident was when his paternal grandmother made him stay in the room with her while she changed his younger cousin’s nappy.
B told the single expert that after C spends time with the husband, he is aggressive and sexually inappropriate. She also said that her father’s behaviours were inappropriate, saying “[h]e rubs this thumb up and down the phone, ‘like it’s inappropriate. You should ask my mother because she knows all about it’.”
The wife told the single expert, “[t]here have been a lot of changes in C, pressing on his penis and his groin, thrusting his groin backwards and forwards. He is even aggressive with friends”. She told the single expert that about a year ago, C started to press his iPad down hard on his groin. She alleged that when the children were very young, after spending time with their father alone, C would pull aggressively on his penis and would crawl on the wife and try to put his penis on her face. She says she saw the husband do that with him. She also says that C would try and sit on her lap and press her into his groin. The wife says that B also would display sexualised behaviours, for example dancing in a sexualised manner and “humping the lounge”, at times when the husband was not there.
The husband in his trial affidavit had denied ever behaving in a sexually inappropriate way towards or in the presence of B or C. In relation to sexualised behaviours attributed to C in an affidavit sworn by the wife on 13 February 2017 (not relied upon by the wife at the hearing) and in some earlier documents, the husband said that if the wife’s reporting of those things were accurate or true, he had never observed such behaviour by C when C had spent time with him. The husband said that to the extent that it was alleged by the wife by inference or otherwise, C had been exposed or learnt sexualised behaviours while spending time with him, he denied those allegations.
The husband was not cross examined at all about these matters because at the final hearing the wife unequivocally withdrew any suggestions of the husband or the husband’s family had behaved in a sexually inappropriate manner towards the children.

THE WIFE’S PREVIOUS ALLEGATIONS OF FAMILY VIOLENCE

The wife makes allegations of family violence against the husband.
The wife’s Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 19 March 2015 contained a plethora of allegations of family violence against the husband.
Neither of the children reported that they had been physically abused by either parent.
The husband in his trial affidavit, denied allegations made by the wife in relation to family violence. He conceded that there had been arguments during the marriage where both parties had raised their voices and that he had said things he should not have said. He regretted that some of those arguments were in the presence of the children. He denied however ever being physically violent towards the wife or the children or making threats of violence or physical harm towards the wife or the children. He also denied ever intentionally causing any harm to family pets or seeking to control the wife financially or to restrict her social interactions with other people. He agreed that he had become intoxicated due to the consumption of alcohol on some occasions but said that this was not a regular or frequent occurrence.
The husband was not cross examined about any of this evidence by counsel for the wife because at the hearing the wife withdrew any suggestion that there had been any family violence during the period of time the parties had lived together.

THE WIFE’S MENTAL STATUS

The wife has, up until at least the end of March 2017, held the view that the husband, the paternal grandfather and other members of the paternal family posed an unacceptable risk to the children being sexually abused, together with additional risks relating to family violence. The wife has referred to the paternal grandfather as a “paedophile” and to the husband’s sisters as “incestuous”.
On 3 July 2017 the wife received a copy of A/Prof D’s report. A/Prof D diagnosed the wife to be suffering from a Delusional Disorder. The wife has developed a set of related delusions about the husband which have up until now, been persistent. The extent of the wife’s disturbed thought pattern is encapsulated in a lengthy Notice of Child Abuse, Family Violence, or Risk of Family Violence filed by the wife on 19 March 2015. The allegations against the husband are extensive and are described by A/Prof D as being “bizarre”. By way of example, the wife relates her concerns around what she perceived as the inappropriate way the husband handled everyday objects such as a beer bottle, a remote control, the base of a lamp shade and a mobile phone. In other evidence, the wife opined that the husband had prepared a chicken schnitzel and held a wooden spoon in a suggestive or sexualised way. The wife states that over time it appeared to her that these behaviours contained a sexual element and appeared “voluntary” and “purposeful” when the children were present. Of particular concern, the wife reported that B responded to these behaviours by the husband by experiencing sexual arousal and climax. The wife viewed ordinary behaviours in the children as having a sexual overtone which she suspected had as its source, inappropriate sexualised behaviour by the husband and by members of the husband’s household.
The wife has until recently maintained this thought pattern repeating her concerns to persons in authority. This is reflected in repeated notifications to FACS. On 24 March 2017 the wife invited a visiting FACS case worker, in B’s presence, to speak to B about how her father had inappropriately handled a milk carton in a supermarket when B had been shopping with her father.
A/Prof D opines in her report that the wife’s mental disorder may be difficult to treat therapeutically given that at the time of writing the report in December 2016 the wife had no insight into her difficulties, was convinced of the reality of her beliefs and was likely to resist any recommendation for treatment.
The wife says she accepts A/Prof D’s diagnosis that she has a Delusional Disorder. The wife now professes insight that has been gained in the shadow of the real risk that the children will be moved from her.
A/Prof D was somewhat sceptical of the wife’s acceptance of her diagnosis, commenting it was hard for anyone to make that shift in their thinking after years and years of having those concerns and that she had never seen a parent drop all that anxiety, concern and obsessive behaviour overnight rather that it usually was a struggle to get over anxiety that the parent felt by way of an intense preoccupation.
A/Prof D however was prepared to entertain the notion that the pending hearing, with serious consequences for the wife if orders are made as those sought against her, may well have been sufficient to have the wife make a great effort to stifle her ideas because of the consequences if she did not. I am prepared to find the wife has recognised the diagnosis that has been made about her mental disorder and does have an intention to seek treatment for that disorder.
The appropriate treatment for the wife’s Delusional Disorder involves first a course of anti-psychotic medication and then psychotherapy. It is necessary for the wife to be genuinely willing to be involved in the treatment.
A/Prof D said that anti-psychotic medication might take weeks and possibly months to create a change in the wife.
It is likely that the wife would be on anti-psychotic medication for a significant period of time and will require extensive psychotherapy.

The wife’s stress, obsessiveness and anxiety

The wife has been attending counselling with Ms Ingrid Pollard for about the last 18 months and has been receiving treatment for Post-traumatic Stress Disorder and related anxiety and depression and has been receiving cognitive behaviour therapy. A/Prof D opined that that treatment had been based upon the wife’s account of being abused and the children being abused. A/Prof D opined that it could be possible that the wife was suffering from Post-traumatic Stress Disorder because you can be traumatised by your own beliefs; however, cognitive behaviour therapy is not a treatment that did anything to address the wife’s Delusional Disorder.

Swingin’ on a Star

In December 2013 the wife wrote a long and detailed complaint to the Department of Education and it attracted some attention during her cross examination. The complaint highlights the wife’s anxiety and obsessiveness and how the wife saw herself as an advocate for B’s causes at school. Part of the complaint is as follows:
After my daughter did not return to school at the end of November 2012, she attended the school Presentation Assembly at [Suburb JJ] Hall as her brother was receiving an award. Her class, Year 2, were to perform the song ‘Swinging on a Star by Bing Crosby [sang by Bing Crosby in “Going my Way”]. At the time of learning the song when my daughter still attended school, she was bullied using the words of the song and was told she was a mule for not wanting to go to school or for having been homeschooled [sic] and was a pig because of her shoes and clothing and for having pets at home…

At this time, B did not want to go to school and wore joggers to school rather than black shoes.
The song “Swingin’ on a Star” contains the line, “if you hate to go to school you may grow up to be a mule”, and another line “or would you rather be a pig, a pig is an animal with dirt on his face, his shoes are a terrible disgrace”. The theme of the song however is “so you see it is all up to you, you can be better than you are, you could be swingin’ on a star”.
The wife approached the school principal to complain about the song being practised in her daughter’s class. The school principal, according to the wife, laughed at her concerns and said that she was a difficult person to please. The wife said she felt disrespected by the principal’s response and was very concerned that the principal felt disregard for her daughter’s feelings. The wife then discussed the song with the regional director of the Department of Education who promised to speak to the principal about the song.
As indicated, the wife attended with B at the end of year concert after she had ceased to go to school. The wife said it was very distressing for herself and for B to have to sit through the performance.
A large part of the wife’s cross examination focussed on her failed attempts to reintegrate B back into mainstream school which she said, were due to the failure to properly put in place transition plans for B.
A/Prof D opined that if taken in isolation, the wife’s extensive complaints about how B had been treated by various school personnel could be seen as having as its etiology extreme obsessiveness and anxiety about the children’s welfare. Although this played its part in the extreme cosseting of B, it was not part of the wife’s Delusional Disorder.

DR EE’S REPORT DATED 21 NOVEMBER 2016

Dr EE is a clinical psychologist who is a specialist in developmental disorders. She was appointed by the court as a single expert to prepare a psychological assessment report which was to include assessment as to whether or not B met diagnostic criteria for Autism Spectrum Disorder and/or related Spectrum Disorders or Comorbidities. Dr EE provided a highly detailed report dated 21 November 2016.

Information provided by B’s family

Dr EE conducted a face to face interview with the husband on 12 July 2016 as well as telephone interviews on 8 and 9 September 2016. Dr EE conducted telephone interviews with the wife on 20 July 2016 and 8, 9 and 10 September 2016. The wife was present when B was observed and assessed. Dr EE sets out a number of emails that she received from the wife attaching various documents with information about B.
In final submissions counsel for the wife referred to A/Prof D’s statement at page 53 of her report that Dr EE’s report “that [B] has various difficulties but Autism is not confirmed, which concurs with my assessment, but there is no comment on the parents or the family dynamics”. Counsel for the wife submitted that A/Prof D was wrong in the statement concerning Dr EE not making comment about the parents. He submitted that the husband had provided Dr EE with information about his own psychological history (at paragraphs [42] to [47] and [70]). Dr EE notes at paragraph [32] of her report that both parents provided her with B’s full developmental history. Counsel for the wife did not challenge A/Prof D in cross examination about the statement she made at page 53. The purpose of Dr EE’s discussion with each of the parents was to obtain a history of B in relation to her psychological and psychiatric history (although the husband commented on his own history in this regard); her social, educational, psychological and psychiatric, medical and developmental history. Dr EE was not tasked with doing a full family assessment and did not report in any way upon the mental status of the wife or how the wife’s mental status might impact upon B. I take A/Prof D to be saying that because Dr EE, for obvious reasons did not undertake the mental status assessment of the wife nor did Dr EE have the extensive material available to her that A/Prof D had, that her description of B’s problems does not add much to A/Prof D’s assessment of the central problem, namely B is likely to have a Delusional Disorder induced by her mother’s Delusional Disorder. That is not to say however that the problems Dr EE has identified are not an important consideration.

Diagnoses of B

Dr EE opined B exhibited and self-reported clinical and extreme levels of anxiety. B’s parents also reported that B was anxious and notably in the assessment undertaken, saw her as more anxious than B sees herself.
B’s parents both completed a strengths and difficulties questionnaire which indicated that B experiences significant difficulties in interacting with others.
B’s processing speed was assessed to be in the low average range. She had also deteriorated in her performance in verbal comprehension and working memory. These results, Dr EE says, suggest that B meets the diagnostic criteria for Specific Learning Disorder: With Impairment in Reading – Moderate.
Dr EE concludes that B does not meet the diagnostic criteria for Autism Spectrum Disorder. However, Dr EE notes that B does exhibit a number of characteristics and conditions commonly comorbid with Autism Spectrum Disorder such as:
117.1.Sensory Processing Disorder;
117.2.Learning Disorder;
117.3.Separation Anxiety. Dr EE states that while Separation Anxiety was likely experienced by B as a child, her engagement in activities such as going out with friends, suggest that any residual Separation Anxiety she may have is “not severely debilitating”;
117.4.Social Anxiety. Dr EE says Social Anxiety is typical for many children aged 10 to 14 but for B, her being home schooled, her learning difficulties and handwriting challenges may “exacerbate her fear of criticism and negative evaluation by others”;
117.5.Pathological Demand Avoidance in that B “avoids things she does not like doing or feels uncomfortable with”;
117.6.Fine Motor Difficulties particularly in relation to B’s writing;
117.7.Weak Muscle Tone which impacts on B’s ability to sit upright for extended periods of time.
B was found to experience “some functional difficulty and discomfort” from sensory conditions associated with Sensory Processing Disorder. However, Dr EE opined that B has developed coping strategies in relation to her remaining challenges in this regard as her degree of incapacitation appears to be “relatively moderate” compared to her experiences when she was younger.
Associated with her Sensory Processing Disorder Dr EE found B to exhibit a number of psychological traits associated with that Disorder including:
119.1.A lack of frustration tolerance;
119.2.Learning difficulties;
119.3.Adaptive functioning skills meaning that B is below her chronological age in her ability to, for example, interact with others, self-sooth and function in society independently from her mother. Dr EE opined that this may be a result of B being home schooled;
119.4.Attachment meaning that B has an anxious attachment style and is unable to feel safe and independent.

Dr EE’s recommendations

Dr EE opines that B would benefit from the following:
120.1.Working with a Clinical Psychologist on an ongoing basis to address B’s psychological concerns;
120.2.B receive assistance from a trained teacher as a tutor before transitioning into a formal schooling environment;
120.3.An occupational therapist to assist B with her handwriting and specific sensory processing challenges;
120.4.A physiotherapist address to B’s weak muscle tone and to help her build up her strength to be able to sit in a chair for extended periods;
120.5.A speech therapist and/or specialist to assist her with her reading disorder.
Dr EE opines that B has been disadvantaged by being home schooled and says that being raised in an environment with her mother in which her needs and wants have been largely catered to, may not have encouraged the development of the mechanisms necessary to manage frustration and other strong emotions. By being allowed to take as long as she wants to complete tasks and not being pressed to meet time deadlines as she would normally be in a classroom environment, B has not needed to develop age equivalent processing speed and task completion skills. B’s skills necessary to effectively navigate through the demands of life that are placed on members of society are below her chronological age in respect of core capabilities, including interacting with others and self-soothing in multiple environments and the ability to function in society independently from her mother. Dr EE recommends continuing B’s home schooling on a temporary basis with the assistance of a qualified teacher. While Dr EE opines that formal schooling would be the best learning environment for B in the long run, she recommends a number of steps be taken before this transition takes place. Dr EE was unable to state what period B would require with a trained teacher and the above additional supports before she would be able to transition to formal schooling but opines that “[B] is intelligent and with proper assistance … she should be able to catch-up relatively quickly”.
In order to reintegrate B into mainstream schooling, Dr EE recommends that the deterioration of B’s thinking and reasoning abilities be taken into consideration and that her reading, writing, processing speed, working memory and comprehension be improved first. She also recommends that a formal assessment of her environmental requirements be carried out by a suitable experienced occupational therapist before transitioning B into formal schooling so that her psychological conditions and environmental issues are catered for.
Dr EE opines that because B’s relative deficits have occurred since she was six years old, B is not ready to go into formal schooling but as indicated, is unable to say how long it will take before she would be ready. I infer that Dr EE’s opinion is given on the assumption that B would remain in her mother’s household and without knowledge of the wife’s Delusional Disorder and what that might be inducing in B.

A/PROF D’S ASSESSMENT OF B’S DIFFICULTIES

A/Prof D has more optimism (albeit guarded optimism) than Dr EE and says there is a small window where B’s transition back to school might be accelerated. By the end of the hearing the wife’s proposal also seemed to be suggesting B’s return to school could be sooner than later. It is likely that B’s return to school will be challenging for her.
Both parties have committed to implementing Dr EE’s recommendations, particularly so far as they are necessary to assist B to get back to mainstream schooling.
At page 51 of her report, A/Prof D expresses the following views which I accept:
[B] may have some autistic features but in my view they are quite mild and under different circumstances would not have prevented her from integrating into mainstream schooling. It may be that what seems to suggest autistic features is in fact the isolation and withdrawal that has been imposed on her by her mother. [B] has developed an anxiety about separating from her mother but it is likely that this is more reactive to her mother’s mistrustful view of the world rather than a primary issue that might reflect [B’s] own fears. In my view, neither autistic nor anxiety symptoms are [B’s] major problems, rather her difficulties stem from having been alienated from peers, from the school system and from her father and the paternal family and raised in the restricted and abnormal environment of her mother’s beliefs and perceptions.
The single expert states in her report that the wife’s “perception that mainstream school environments have been damaging to B and [the wife] has cossetted her to an extent that has limited B’s social and psychological development”.
A/Prof D recommends that B be given the opportunity to transition into a regular school environment. To do so she says it would be necessary for B to be separated from her mother’s influence for a period of time.
A/Prof D acknowledged the possible need for B to be placed in a specialist school or facility that caters for adolescents with B’s difficulties. She said there was only one actual facility in the State, namely E School. It has a long waiting list. A/Prof D in the week of the trial contacted that facility and put B’s name down. She said it is not likely that a place would be available until the beginning of school next year and that was far too long to wait for B to transition into mainstream school. The Independent Children's Lawyer is making immediate inquiries in relation to other possible options in the meantime.

THE WIFE’S MOTHER’S EVIDENCE

On the final day of the hearing and after the conclusion of final submissions by the Independent Children's Lawyer and the husband, counsel for the wife made an application to re-open the wife’s case to seek to lead oral evidence from the maternal grandmother in relation to her moving into the children’s home with the wife. That application was opposed by the husband but not opposed by the Independent Children's Lawyer. I granted the wife leave to re-open her case.
The maternal grandmother is 65 years of age and in good health, had never been diagnosed with any mental health issues and claimed she did not drink alcohol. She had been informed on the previous evening by her daughter that she had been diagnosed with a Delusional Disorder. The maternal grandmother had not been asked to be a witness in the wife’s case until 27 July 2017.
Although she knew that her daughter had been diagnosed with a Delusional Disorder, she was unaware as to why that diagnosis had been made apart from her daughter telling her that she was seeking treatment. The maternal grandmother said that apart from stress, she had no other concerns about the wife’s mental status in the last several years.
The wife had not told her mother however that her grandson had been diagnosed with an induced Delusional Disorder and it was likely that her granddaughter also had an induced Delusional Disorder saying, “I didn’t know that”. The maternal grandmother was clearly affected when she heard of the serious diagnosis in relation to both of her grandchildren.
The maternal grandmother had not participated in the interviews for A/Prof D’s report. A/Prof D commented that she had the impression after her interview with C “that there is not much contact with the extended maternal family”. I note however that B did report that she saw the maternal grandmother once a week or once a fortnight and saw the rest of the maternal family on special occasions.
The maternal grandmother said that in recent years she had had some discussions with her daughter about how her daughter felt that inappropriate behaviours took place in the husband’s household. She said that when her daughter described those behaviours to her she did not feel anything inappropriate had happened.
The maternal grandmother said that she could immediately move in with her daughter if the court thought that was necessary. The maternal grandmother works shift work full time. In the very short time the maternal grandmother had to consider what arrangements she could make, she said there were a number of options. The maternal grandmother said she had three or four different options, including reverting to casual work and working on the days when the children were not in the wife’s home. She said she could also take leave; she could also resign and sell her home which has a small mortgage.
The maternal grandmother said that her relationship with B was actually quite close and that B actually seeks her out at family functions and sits with her. She explained that when B is anxious she is able to calm her down. She also said she had a good relationship with C.
The maternal grandmother says that she has recognised that B has had special problems since she was very young. The maternal grandmother said that she did not feel it was her place to do anything about the fact that B was not participating in mainstream schooling as she was not the parent.
The maternal grandmother said that if B was resistant to moving to her father’s home, the maternal grandmother could assist with that process. She would consent to any order being made which required her in that way.
The maternal grandmother and the paternal grandmother do not know one another very well. The assistance the maternal grandmother could give extends to situations where B has a “meltdown in her father’s home”.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

The children would benefit from having a meaningful relationship with both parents.
The wife’s delusional belief system and lack of medical treatment stands in the way of the children having a healthy relationship with her and in the current circumstances, having any meaningful relationship with their father. The wife proposes that the children spend substantial and significant time with their father but that is unlikely to be implemented certainly in the medium term if decisive steps are not taken to address the wife’s serious mental disorder.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

From her observations, A/Prof D concluded that there was little to suggest that the husband poses a risk to the children.
The single expert concludes that the “mother has some disturbance of her thoughts and perceptions” and is “intensely preoccupied with the risk of harm to the children due to what she perceives as the father’s sexually inappropriate or sexually abusive behaviours”. She says that some of the wife’s perceptions about the husband’s behaviours are “bizarre”.
The single expert concludes that the wife has mental health issues. She states:
There is cause for concern about the mother’s mental state. It would seem improbable that her ideas and perceptions are entirely based in reality, if they were then they would suggest that not only are the father and his parents regularly behaving in a sexually inappropriate or even sexually abusive manner towards the children, but even the cousins of preschool age are sexually inappropriate with [C]. According to [the husband], the mother has referred to the paternal grandfather as a ‘paedophile’ and his sisters as ‘incestuous’. It would seem likely that these reports are the products of abnormal thought processes, possibly a paranoid mental disturbance in the mother, with transmission of these ideas to her children. If this is the case then it seems that [the wife] is suffering from a Delusional Disorder, defined as: ‘the development either of a single delusion or of a set of related delusions that are usually persistent and sometimes lifelong.’

I have some difficulty in accepting the husband’s stated earning capacity given his training and experience. I infer that the husband’s earning capacity is significantly more than $540 per week.
The husband owes his father $344,714. Advantageously to the husband, that debt has been placed as a liability on the balance sheet. It is the husband’s father’s intention to take an interest in the Suburb J property by way of security for that debt. Given those circumstances, I find that the husband’s parents are a financial resource available to the husband.
The wife previously received the New Start Allowance in the amount of $788.30 per fortnight. This Allowance was cancelled on 25 January 2017 and the wife was advised that she has monies outstanding. She also receives Family Tax Benefits A and B in the sum of $483.28 per fortnight. She receives a payment of $1,000 per quarter towards B’s education expenses and a carer’s supplement of $124.70 per fortnight used towards minding services. Those benefits will cease.
The wife has a capacity for full time employment in circumstances where I have ordered that the children not ordinarily live with her. The wife said in cross examination that if she was to return to full time employment she would expect to be able to command a salary in the order of $80,000 per annum. Counsel for the wife in final submissions said I should take into account what can be anticipated to be the wife’s panic and anxiety state at the loss of her children and discount her evidence that she would have the ability to earn at the rate at which she said she could. I accept that the wife’s future prognosis and the effectiveness of the wife’s future treatment is unknown. The Delusional Disorder is confined to a set of beliefs which would not impair her working capacity, given the confined nature of those beliefs. Her obsessional and anxious personality however may mean that she has been overconfident in her prediction as to her potential annual income.
Given my view that the husband has understated his earning capacity, I do not place any weight on any possible differences in the earning capacity of each of the parties.
The husband will now have the primary care of the two children of the marriage.
The parties have agreed to share the additional costs relating to the children’s counselling and other professional assistance especially for B.
I take into account the findings I have made in relation to contributions which creates a 10 per cent difference between the parties in what each receive from the net assets.
Neither party is cohabiting with another person.
The parties have not entered into a financial agreement.
Child support will be payable in accordance with assessments from time to time.

Conclusion in relation to s 79(4)(d) – (g) considerations

I do not consider that any further adjustment needs to be made for s 79(4)(d) – (g) considerations.

JUST AND EQUITABLE

The husband sought a 65.7 per cent adjustment in his favour for reasons which weren’t explained as that percentage is seemingly inconsistent with the separate submissions of percentages in respect of contributions and s 79(4)(d)-(g) considerations.
The wife sought an overall adjustment of about 50 per cent (in circumstances where the children are not with her).
Based upon my findings in relation to contributions and s 79(4)(d) – (g) considerations, an adjustment should be made in the husband’s favour as to 55 per cent/45 per cent. That adjustment could be achieved by a distribution in the following way:

Husband gets 55 per cent
Assets
Item No.	Description	Percentage	Value
1	H Street, Suburb J	100 per cent	$2,300,000
3	St George Bank account	100 per cent	$201
4	CBA account	100 per cent	$416
5	ANZ Bank account	100 per cent	$1,226
6	4WD	100 per cent	$15,000
7	Trailer	100 per cent	$400
8	N Pty Ltd	100 per cent	$0
9	Household contents	100 per cent	$5,000
15	CBUS	100 per cent	$83,242
Liabilities
Item No.	Description	Percentage	Value
19	Debt to Mr K Jillet	100 per cent	$227,000
20	Debt to Mr K Jillet	100 per cent	$23,714
21	Debt to Mr K Jillet	100 per cent	$94,000
24	A/Prof D	100 per cent	$5,100
Husband pays Wife		$410,883
Net Assets		$1,644,788
Wife gets 45 per cent
Assets
Item No.	Description	Percentage	Value
2	F Street, Suburb G	100 per cent	$1,157,500
10	St George Bank account	100 per cent	$280
11	Motor vehicle	100 per cent	$7,000
12	W Pty Ltd	100 per cent	$1,000
13	Household contents	100 per cent	$2,000
16	Hesta superannuation	100 per cent	$49,517
17	Public Sector superannuation	100 per cent	$8,844
14	Legal fees	100 per cent	$109,000
Liabilities
Item No.	Description	Percentage	Value
18	Mortgage on Suburb G	100 per cent	$390,000
22	St George credit card	100 per cent	$10,288
Wife receives		$410,883
Net Assets		$1,345,736

The above table requires the husband to pay the wife the sum of $410,883. The husband does not have the ability to pay that amount at the current time. His father can raise $150,000 but on the basis that he takes equity in the Suburb J property equivalent to the debt owed to him by the parties, including the $150,000.
Given the orders that have been made in the parenting proceedings, it is important that the husband have a stable residence for the children to allow them to transition from the wife to the husband.
For that reason, an order will be made for the husband to have exclusive occupation of the Suburb J property on the basis that he continue to pay as they fall due, regular instalments of the first mortgage, water rates, and insurances on the Suburb G property, the home in which the wife continues to reside.
The husband sought that that occupancy order be for a period of seven years. The wife sought that it be two years. I accept the wife’s submission in that regard.
Upon the expiration of two years, the wife is to transfer her interest in the Suburb J property to the husband and the husband is to pay the wife the remaining monies, including interest at the Commonwealth Bank twelve month IBD rates on an annual basis or 260,883/2,300,000 of the value of the Suburb J property in two years’ time. Otherwise, the parties are to retain assets and be responsible for liabilities in accordance with the distribution table.
The husband is to forthwith pay A/Prof D the sum of $5,100. The husband is to indemnify the wife in relation to any debt owed to his father.
In the event that the wife is required to pay all or any of the possible debt to Centrelink in the approximate sum of $35,000, then the parties are to bear that liability as to 55 per cent to the husband and 45 per cent to the wife.
Counsel for the wife sought an order that the husband be injuncted from dealing with or further encumbering the Suburb G property during the period of occupancy and that is a proper order to make.

I certify that the preceding three hundred and twelve (312) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 August 2017

Associate:

Date: 7.8.17

SCHEDULE 1 – parenting orders sought by the Independent Children's Lawyer (supported by the husband)

All previous parenting orders are discharged.
The child C born on … 2006 live with the father.
The child B born on … 2004 live with the father.
That the father has sole parental responsibility for the children.
The face -to- face time between the children and their mother is suspended for a period of three months for the purpose of:
5.1.B to transition into formal education
5.2.The mother to engage in a medication regime and Cognitive Behavioural Therapy
5.3.C and B to settle into the living arrangements with their father.
Prior to the expiration of three months after the date of these orders the mother is to provide to the father a report from her treating psychiatrist with such report to address compliance and stabilization of medication regime and engagement with Cognitive Behavioural Therapy.
Upon the father being satisfied that the mother is continuing treatment with a psychiatrist and is compliant and stabilised in a regime of medication and treatment, the father shall arrange for the children to spend time with the mother in accordance with the following orders.
The father shall nominate a supervised contact service and the mother and father shall compete all necessary documentation and attend all appointments for the purpose of facilitation of time as outlined at paragraph 9.
Supervised time facilitated by a professional supervision service shall be once per week for a period of three hours, and continue for a period of six months with such costs for supervised agency to be shared equally between the mother and the father.
At the expiration of six months of supervised time and upon the mother providing to the father a report after five (5) months of supervised time from the nominated treating psychiatrist indicating e compliance and stabilization of medication regime and engagement with Cognitive Behavioural Therapy.
At the expiration of paragraph 10 the children shall spend time with their mother on an unsupervised basis once per week for 8 hours or at times as determined by the father and agreed by the mother.
The children for a period of 12 months shall communicate with their mother once per week on a day as agreed between the mother and father and failing agreement at 6 pm Eastern Standard time each Wednesday by telephone with such time being supervised by a the father or paternal grandmother by placing the phone on loud speaker and at the expiration of 12 months and subject to compliance with
At the expiration of 12 months and subject to the mother’s compliance with paragraph 6 and 10 such telephone communication shall be not be subject to supervision.
The mother shall not discuss the proceedings with the children including any evidence adduced during the proceedings.
The father shall forthwith advise the mother of
15.1Any hospital admissions or urgent medical or dental treatment required by each child
The father shall within seven (7) days of receipt thereof provide to the mother
16.1A copy of each child’s school reports,
16.2a copy of school each child’s school photo,
16.3A copy of Certificate of attainment /certificates from school
Should either child run-a-way from her father’s home, the child or children shall forthwith be returned to the father’s home.
The mother shall not be at liberty to attend either of the children’s educational facility unless the father invites the mother to attend.
Within 14 days of the date of these orders the mother is to attend upon her General Medical Practitioner and obtain a referral to a suitably qualified psychiatrist with expertise in working with Delusional Disordered persons.
Within 21 days of the date of these orders the mother is to make a time to attend upon a suitably qualified psychiatrist and to advise the ICL and the father of that scheduled appointment.
Upon compliance with paragraph 19 the ICL shall have leave to provide to the nominated psychiatrist a copy of the Part 15.5 Single Expert Report.
Within 21 days of the date of these orders, the father is to contact COMPI and make a referral for each child to attend upon a psychologist.
The father is to advise the ICL of the name and appointment times scheduled for the children at COMPI.
The ICL has leave to provide to the nominated psychologist at COMPI a copy of the Part 15.5 Single Expert Report prepared by Associate Professor D.
The father is forthwith to make a contact with E School and any other Department of Education Facility as advised by the ICL to obtain an enrolment for B in formal education.
Neither the mother or father shall denigrate or cause any third party to denigrate the other parent or members of the extended family.
The ICL shall forthwith make enquires of relevant personal from the Department of Education as to whether B is able to access any specialised school or resources within the Department of Education to assist B transition to formal education and advise the father.
The father is to do all acts and things necessary to facilitate C’s and B’s attendance upon the Independent Children’s Lawyer for the purpose of having the orders explained to them.
The Independent Children’s Lawyer’s appointment will be discharged 14 days after the date on which B and C meets with them for the purpose of having the orders explained or will be discharged 28 days after the date on which judgment is delivered, whichever is sooner.

SCHEDULE 2 (parenting orders sought by the wife)

That the parties have equal shared parental responsibility for the children B born … 2004 and C born … 2006.
That subject to the mother’s compliance with order 7 that the children continue to live with the mother.
That the children spend time with the father on a two week cycle as follows:
Week 1:from Thursday after school to before school on Monday;
Week 2:from Thursday after school to before school on Friday.
That all other times be in accordance with the father’s proposal.
That upon the parents being notified by the ICL of the availability of a placement for B in a Special Needs School that the parents forthwith complete an enrolment for B and the mother facilitate B’s attendance at such school by having an independent person deliver her to and collect her from school.
That the parties do all acts and things at their joint expense to ensure that B have the services of:
6.1.a Clinical Psychologist on an ongoing basis;
6.2.a qualified teacher to assist with her home schooling until she is able to attend normal school;
6.3.an occupational therapist;
6.4.a Physiotherapist for her week [sic] muscle tone.
That the mother obtain a referral to a psychiatrist from her treating medical practitioner within two days of the date hereof and attend at the first available consultation with such psychiatrist and thereafter do all acts and things and take all medications as prescribed and participate in all therapy until such psychiatrist determines that she no longer requires therapy to address her delusional disorders

SCHEDULE 3 (documents relied upon)

Husband

Affidavit of husband filed 25 May 2017
Financial Statement of husband filed 25 May 2017
Affidavit of Mr K Jillet filed 25 May 2017
Affidavit of Ms II Jillet filed 25 May 2017

Wife

Affidavit of wife filed 5 May 2017
Affidavit of wife filed 12 July 2017
Financial Statement of wife filed 5 May 2017

[2017] FamCA 573

7 August 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Procedural Fairness