Rasheem & Rasheem (No 4)
[2023] FedCFamC1F 690
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rasheem & Rasheem (No 4) [2023] FedCFamC1F 690
File number(s): PAC 1536 of 2020 Judgment of: ALTOBELLI J Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – PARENTING – Where there are allegations of family violence – Where the father has problems with gambling and substance abuse – Where the mother seeks an injunction under s 68B of the Family Law Act 1975 (Cth) (“the Act”) and a Family Law Watchlist order – Where the mother wishes to change the children’s surname – Where the Court declines to make a s 68B order or a Family Law Watchlist order – The mother is to have sole parental responsibility for the children – The children are to spend gradually increasing time with the father – Time is to begin by being supervised and transition to unsupervised time.
FAMILY LAW – PROPERTY – Where the father had a gambling addiction – Where the father has not provided full and frank disclosure – Where the father’s parents provided multiple loans – Where there are large addbacks of notional property – Where the father made greater contributions – Where there is an adjustment in favour of the mother under s 75(2) of the Act.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
NHC and RCH (2004) FLC 93-204; [2004] FamCA 633
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173;[2018] FamCAFC 173
Weir& Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 196 Date of hearing: 26 April 2023 to 4 May 2023 Place: Sydney Counsel for the Applicant: Mr Lethbridge SC and Ms Seric Solicitor for the Applicant: Veritas Law Firm Counsel for the Respondent: Mr Rosic Solicitor for the Respondent: Michael Jokovic & Associates Counsel for the Independent Children's Lawyer: Mr Kalimnios Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 1536 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RASHEEM
Applicant
AND: MS RASHEEM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
PARENTING
1.All previous orders with respect to the children, X born 2018 and Y born 2019 (“the children”) are discharged.
Parental Responsibility
2.The Respondent mother (“the mother”) have sole responsibility for the children.
3.The mother shall keep the Applicant father (“the father”) advised in respect of the children as to the following matters:
(a)The choice of school the children will attend, within seven days of the child being enrolled in that school;
(b)Any change to the school the children will attend, within seven days of the decision to change;
(c)Any major medical treatment planned for the children, within seven days of the decision that such treatment be undertaken;
(d)Any accident, injury or emergency medical treatment required by the children within 12 hours of the occurrence; and
(e)Any major decision about the children’s religion including, for example, Baptism, Holy Communion and Confirmation within seven days of the making of such decision.
Living and time arrangements
4.The children shall live with the mother.
5.Until the commencement of time as per the orders below, the children are to spend time with the father:
(a)Each alternate Sunday from 10.00 am to 2.00 pm;
(b)Each alternate Thursday from 10.00 am to 2.00 pm;
(c)With such time to be supervised by either the paternal aunt or the paternal grandparents.
6.The children shall spend time with the father in accordance with the following four stages:
(a)Stage one: Commencing once the mother has attended upon a psychologist, as outlined in the interim orders made 4 May 2023, on two occasions, but in any event no later than 1 December 2023, the children are to spend time with the father for a period of three months:
(i)Each alternate Sunday from 9.30 am to 2.00 pm;
(ii)Each Thursday from 10.00 am to 2.00 pm until the oldest child commences school, and from after school to 6.00 pm thereafter;
(iii)With all such time to be supervised by either the paternal aunt or the paternal grandparents.
(b)Stage two: Commencing upon the expiration of the above orders, the children are to spend time with the father for a period of three months:
(i)Each alternate Sunday from 9.00 am to 4.00 pm;
(ii)Each Thursday from 10.00 am to 2.00pm until the oldest child commences school, and from after school to 6.00 pm thereafter;
(iii)With all such time to be supervised by either the paternal aunt or the paternal grandparents.
(c)Stage three: Commencing upon the expiration of the above orders, the children are to spend time with the father for a period of 18 months:
(i)Each Wednesday from after school/daycare to 6.00 pm (unless the parents otherwise agree on a different day);
(ii)Each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday;
(iii)With all such time to be supervised by either the paternal aunt or the paternal grandparents, and with overnight time to occur at the paternal grandparents’ house.
(d)Stage four: Commencing upon the expiration of the above orders, the children are to spend time with the father until they reach the age of 18 years old:
(i)Each Wednesday from after school/daycare to 6.00 pm (unless the parents otherwise agree on a different day); and
(ii)Each alternate Wednesday from after school to before school on Thursday (unless the parents otherwise agree on a different night); and
(iii)Each alternate weekend from after school/daycare on Friday to before school on Monday; and
(iv)This time is to be unsupervised.
Holidays and special occasions
7.The children are to spend time with the father during the Term 4 school holiday period as follows:
(a)For one week of the Term 4 2024 school holiday period, from 10.00 am on 4 January 2025 until 5.00 pm on 11 January 2025;
(b)For two weeks of the Term 4 2025 school holiday period, from 10.00 am on 10 January 2026 until 5.00 pm on 24 January 2026; and
(c)Commencing in Term 4 2026, for the first half of the Term 4 school holiday period in even numbered years and for the second half of the Term 4 school holiday period in odd numbered years.
8.The children are to spend time with the father during the Terms 1, 2 and 3 holidays periods, commencing in Term 1 2025, as follows:
(a)For the first half of the school holiday period in odd numbered years; and
(b)For the second half of the school holiday period in even numbered years.
9.The children are to spend time with the father during Christmas as follows:
(a)From 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years; and
(b)From 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years.
10.The children are to spend time with each parent during Easter as follows:
(a)With the mother on Christian Easter from 9.00 am on Good Friday to 5.00 pm on Easter Monday; and
(b)With the father on Orthodox Easter from 9.00 am on Good Friday to 5.00 pm Easter Monday;
(c)In the event that Christian and Orthodox Easter fall on the same day, the children shall spend time with the father from 11.30 am to 3.00 pm on that day.
11.The children are to spend time with each parent on Mother’s Day and Father’s Day as follows:
(a)With the father on Father’s Day from 9.00 am to 5.00 pm; and
(b)With the mother on Mother’s Day from 9.00 am to 5.00 pm.
12.The children are to spend time with each parent on the parents’ birthdays as follows:
(a)From 3.00 pm to 7.00 pm if it occurs on a week day, or from 9.00 am to 5.00 pm is it occurs on a weekend, if the children are not otherwise in their care.
13.The children are to spend time with each parent on their own birthdays, if the children are not otherwise in their care, as follows:
(a)From 3.00 pm to 7.00 pm if it occurs on a week day, or from 9.00 am to 5.00 pm is it occurs on a weekend.
14.Where the time in Orders 7–13 commences before the commencement of unsupervised time then such time with the father shall be supervised by either the paternal aunt or paternal grandparents with overnight time to occur at the paternal grandparents’ house.
Hair follicle testing
15.At least seven days prior to the commencement of each of the above stages in Order 6, the father is to provide the mother with a negative hair follicle test and a letter from his treating doctor or therapist evidencing attendance upon treatment for gambling and evidencing no concerns with respect to the father’s parenting abilities.
16.To facilitate Order 15 above:
(a)The father shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee for hair drug testing purposes;
(b)Collection is to be conducted by a qualified and certified collector. Chain of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing;
(c)To give effect to this order, the father is restrained from cutting his head hair to a length shorter than four centimetres and from completely shaving, waxing, cutting and/or dying his hair including but not limited to any bodily hair;
(d)The father is at liberty to provide AWDTS with a copy of these orders;
(e)The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the each of the parties and the Independent Children’s Lawyer upon receipt of such test results.
(f)The hair drug test screen shall test for the following substances:
(i)Cannaboids including ugl quantum;
(ii)Opiates;
(iii)Amphetamines;
(iv)Methamphetamine;
(v)Benzoids;
(vi)Alcohol; and
(vii)Cocaine.
(g)AWDTS is required to utilise the testing services or an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO ISO/IEC 17025:2005 by the relevant National Accreditation body. AWDTS selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing guidelines, cost, and time required for results to be made available.
17.This hair follicle testing is to be at the father’s own expense.
18.Should the father fail to comply with Orders 15–17 above, or return a positive result, the time that the children spend with the father shall be suspended until such time the father is able to produce a negative hair follicle test result. Time with the children will return to being supervised by either the paternal aunt or paternal grandparents for a period of six months, subject to the further negative hair follicle test result.
Changeovers
19.For the purpose of implementing these orders, unless otherwise agreed in writing between the parents, changeovers are to occur at KFC Suburb G when not occurring at the children’s school/daycare pursuant to these orders. For as long as these orders require the father’s time to be supervised, the paternal aunt or paternal grandparents are to facilitate the changeover on his behalf.
20.The mother may choose to have an accompanying person to facilitate the changeover or arrange for a family member to undertake the changeover on her behalf.
Communication
21.The mother and the father shall keep the other informed of their contact telephone number and postal and email addresses at all times, and notify the other in writing no later than seven days after any change of telephone number and/or postal and/or email addresses.
22.The mother and the father will communicate with each other and keep the other informed of all medical, educational, sporting, cultural and other significant events in the children’s lives, including but not limited to:
(a)Copies of school reports and other information of a like nature including prospective sporting, social and educational events without undue delay, and in any event within seven days of receipt; and
(b)All medical, physiotherapy, counselling, treatment and the like received by the children whilst in their care.
23.The mother and the father will facilitate the children contacting the other by telephone or video call at all reasonable times at the request of the children.
24.The parties shall communicate with each other in relation to the children by the OurFamilyWizard App or an agreed equivalent.
Restraints
25.During the time the children are with either parent, that parent or any family member or other person present will:
(a)Speak of the other parent respectfully;
(b)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(c)Not discuss these proceeding with, or in the presence or hearing of the children, and will ensure no other person discusses the proceedings in the presence or hearing of the children.
Change of name
26.The children shall be known for all official purposes such as, but not limited to, passports, school registrations, medical and allied health and baptismal records, as X and Y.
27.The mother is restrained from applying to the NSW Registry of Births Deaths and Marriages, or any equivalent body, to change the name of either child.
Overseas travel
28.Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), both the mother and the father will be permitted to travel with the children outside of the Commonwealth of Australia.
29.The father is not permitted to travel overseas with the children until the commencement of time pursuant to Order 6(d).
30.The parent proposing to travel with the children must obtain the written consent of the other parent, which will not be unreasonably refused.
31.Both parents are restrained from travelling overseas with the children for a period of longer than two weeks without the written consent of the other parent.
32.The parent proposing to travel with the children shall also provide the other parent with 60 days’ notice of the travel, as well as additional information such as:
(a)A travel itinerary, including travel dates, destinations and accommodation arrangements;
(b)Contact numbers for the children whilst travelling; and
(c)The return airfares for the children.
33.The parents will not take the children to a country, region, city or event where there is a department of Foreign Affairs and Trade (or such other successor Department as may be in existence from time to time) travel advisory in place of “do not travel” or “reconsider your need to travel” unless expressly agreed to by both parents in writing.
34.The traveling parent shall ensure the children contact the other parent once a week, with the travelling parent to facilitate all calls and ensure privacy.
35.If the travelling parent is not in an area that has mobile phone or wifi coverage, then the travelling parent will ensure that the children contact the other parent as soon as they reach an area that does have mobile telephone or wifi coverage.
Passports
36.The mother is permitted to apply for and obtain the issue and renewal of an Australian passport for each of the children under the provisions of the Australian Passports Act 2005.
37.The father shall sign and provide all the necessary documentation to facilitate the above order.
38.Both parents shall equally pay the costs of obtaining and renewing the children’s passports.
39.The mother is to retain the children’s passports unless the children are to travelling overseas with the father.
40.If the children travel outside of Australia with the father, the father is to return the children’s passports to the mother within seven days of the children’s return to Australia.
41.Both parents are restrained from applying for a Country H passport for either of the children.
Retaining the Independent Children’s Lawyer
42.The Legal Aid Commission of New South Wales (“Legal Aid NSW”) is requested to extend the appointment of the Independent Children’s Lawyer for a period of 12 months from the date of these orders.
43.During this period the mother and the father or their legal representatives will cooperate with all requests made by the Independent Children’s Lawyer.
44.The Independent Children’s Lawyer may, at her discretion, meet with the children for the purpose of explaining these orders to the children at an appropriate time.
The costs of the Independent Children’s Lawyer
45.Subject the order below, and subject further to any arrangement with Legal Aid NSW, within 28 days of these orders, each party shall pay equally the costs of the Independent Children’s lawyer, being the sum of $13,589.50.
46.Each part has leave to relist the matter before me within 14 days of these orders if they wish to agitate this issue before the Court.
PROPERTY
The Suburb E property
47.The mother is declared to be solely entitled to the property at 1 J Street, Suburb E in the State of New South Wales, being the whole of the land comprised in Folio Identifier Lot … (“the Suburb E property”), to the exclusion of the husband.
48.Within 12 months of the date of these orders the mother shall cause to be discharged the mortgage account number … in favour of the National Australia Bank Limited (“NAB”) secured on the Suburb E property.
49.Pending the discharge of the mortgage in accordance with the previous order, the mother is responsible for paying all amounts secured by the said mortgage, as well as all outgoings, services, rates and taxes relating to the Suburb E property.
50.In the event that the mother does not comply with Orders 47 and 48 above, the mother shall forthwith take all necessary steps and execute all documents to cause the Suburb E property to be sold for the best price achievable, with the mother being entitled to the whole of the net proceeds of sale after the ancillary costs of sale are paid, the mortgage is discharged and the line of credit paid out.
Bank accounts
51.Within 12 months of the date of these orders the mother shall cause to be discharged the line of credit account number …52 with NAB.
52.Within seven days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to remove any freeze or restriction on the NAB Joint Offset Account number …63, transfer any balances to the mother and close this account.
Other property
53.Unless otherwise provided in these orders, both parties are to be declared the sole and legal and beneficial owners of all items of property presently in their possession and control including, but not limited to, bank accounts, savings, motor vehicles, real property, entitlements to superannuation, furniture and personal effects.
Spousal maintenance
54.By way of periodic spousal maintenance pursuant to s 74 of the Act, the father shall pay the mother the sum of $1,000 per week for a period of one year from the date of these orders.
55.Should the Suburb E property be sold before the expiration of one year, whether by the mother or by a third party including a mortgagee, this spousal maintenance order will be reduced in the sum of $522 per week for the remainder of the year.
Failure to execute orders
56.Each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
57.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Act to execute such deed, document or instrument in the name of the said party and do all things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
58.Leave is granted to the parties to apply to relist the proceedings on 14 days’ notice to deal with any interpretation, implementation and/or enforcement of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rasheem & Rasheem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between parents about the division of their property and in relation to the parenting of their children.
BACKGROUND
The father is the applicant in this case (“the father”) and he is 35 years old. The mother is the respondent (“the mother”) and she is 32 years old. The parties met in 2012, commenced a relationship and became engaged in 2013 and married in 2015. Before they married they had commenced co-mingling their finances with the goal of purchasing a property. Indeed, they purchased a property at J Street, Suburb E (“J Street”) for $1,370,000. They paid the 10 per cent deposit but there is a dispute between them about how much of this constituted joint savings, and how much of it was provided from the husband’s parents by way of gift.
After purchasing the property, the parties sought to develop the same by demolishing the existing home and building a pair of duplexes. The construction costs appeared to have been over $800,000 and whilst it is agreed between the parties that they borrowed $440,000 from the National Australia Bank (“NAB”), there is contention about the source of the balance of the funds.
The parties married in 2015 and first commenced cohabitation at that time. They moved into an investment property owned by the maternal grandparents at Suburb L, where they were not required to pay rent for two years. At the time of marriage, the father was involved in the establishment of various M Company franchises, together with two other partners. The father was also working in his father’s (“Mr N”) business. The mother was employed in a business conducted by her father and grandfather.
After the wedding, the parties appeared to have acquired a considerable amount of cash which had been received as wedding gifts, together with accumulated savings, but there is contention as to the amount and source of these funds.
In 2017, the completion of the sub-division development at J Street occurred, resulting in 1 and 2 J Street. 2 J Street was sold for $2 million, and the parties retained 1 J Street. There is an issue about how the sale proceeds of 2 J Street were applied.
By 2017, the husband’s interests in the M Company franchises appears to have expanded and the parties borrowed from NAB to finance this.
The parties’ first child, X, was born 2018, and their second child, Y, was born 2019 (“the children”). X is now five years old and Y is three years old. Pursuant to orders made on 6 October 2022 and varied on 29 November 2022, the children live with the mother and spends time with the father every Thursday from 10.00 am to 2.00 pm, supervised by O Contact Services. Both parents’ affidavits explain that they have agreed to vary this time without amending Court orders to the effect that the time occurs each alternate Thursday and Sunday such that the Thursday visits occur between the father and the children only, and the Sunday visits also include the father’s parents, his sister, her husband and her four children. The Court will factor this in as it considers the progression of the father’s time with the children.
The mother had taken time off work during her pregnancy, but recommenced employment in her father’s business on a part-time basis, and remotely from home.
The husband has a gambling addiction and whilst it is not clear precisely when this started, the evidence indicates that by 2017 it was highly problematic. Despite the father’s involvement in the franchise businesses, and Mr N’s business, he was involved in the care of X.
From at least 2018, but possibly as early as 2017, marriage problems developed. On the mother’s evidence, she experienced the father as violent, abusive, coercive and controlling. The father denies this but conceded in his affidavit filed 19 April 2023 to “problems controlling my anger reactions…”.
By 2019 the husband sought to extricate himself from the franchise businesses, ostensibly on the basis that he was experiencing marital issues, but the Court will find that another major reason was his uncontrolled gambling. In late 2019 he sold his shares in the businesses to his partners and the financial aspects of this transaction will need to be the subject of findings.
It seems that shortly after Y’s birth in 2019 the father became aware of the need to seek assistance in relation to his gambling and he voluntarily entered treatment at P Treatment Centre, a specialist treatment centre.
The year 2019 appears to have been a particularly tumultuous and difficult time for the parents. Their relationship was breaking up. There was high conflict and probably violence. The father was experiencing issues with gambling and substance use. Regrettably, both the paternal and the maternal family became involved.
In late 2019 an apprehended domestic violence order (“ADVO”) was made against the father protecting the mother, for a period of two years. The father was also charged with common assault to which he pleaded guilty and in respect of which he was placed on a good behaviour bond.
The parties separated on 15 January 2020 when the mother left the home, taking the two children with her, to reside at the home of the maternal grandparents. The father commenced the present proceedings on 31 March 2020. In the first schedule to these reasons for judgment a short chronology of the litigation is found. This will be referred to where relevant.
The father spent no face-to-face time with the children until August 2020 when supervised time commenced pursuant to orders made on 31 July 2020. The mother and the children moved back into 1 J Street in mid-March 2021 pursuant to Court orders made by consent on 23 February 2021 giving the mother exclusive occupation of the property.
Throughout the proceedings orders were made for the father to spend supervised time with the children, for the mother to have exclusive occupation of the former matrimonial home at 1 J Street, for spousal maintenance, for a partial property settlement, and costs. The COVID‑19 pandemic interfered with the smooth implementation of the supervised contact orders. Late in 2022 the father’s time with the children, whilst remaining supervised, moved into the community. Members of the paternal family were entitled to join in.
The final hearing of this matter commenced on 26 April 2023 and ran for seven days. The parties were represented by experienced counsel and family lawyers. The children had the benefit of an Independent Children’s Lawyer, and experienced counsel appeared on behalf of the Independent Children’s Lawyer.
By the time of closing submissions, the original proposals of each parent had varied appropriately, to reflect the evidence in the case.
THE COMPETING PROPOSALS
The final property orders sought by the father were contained in his Amended Initiating Application filed 21 April 2023. By way of summary, the father sought for the mother to do all acts and things necessary to sell the property at 1 J Street (including appointing a conveyancer); for the balance of the proceeds of sale to be distributed as to 55 per cent to the mother and 45 per cent to the father; to remove the freeze or restriction on the NAB Joint Offset Account, transfer any balances to the mother and close the account; for the mother to retain all household items in 1 J Street; for the spousal maintenance and costs orders to be discharged; and for the parties to be otherwise declared sole and legal owners of property in their possession. The father’s proposal in relation to parenting orders was found in the document that became exhibit A12. Whilst this is reproduced in the second schedule to these reasons, by way of summary he proposed that the parents have equal shared responsibility for the children, and that the children live with the mother (conditional upon the mother engaging with a child and family psychologist or psychiatrist specialising in high conflict parenting issues), and spend time with the father gradually increasing in phases from supervised to unsupervised time each alternate weekend, and each alternate Tuesday after school to before school on Wednesday, half of school holidays and additional time on special occasions. The father also proposed to undertake hair follicle testing and attend upon treatment with Ms Q and that the parties continue to attend upon family therapist Ms R and undertake high conflict counselling and/or engage with a parenting coordinator. There are further proposed orders regarding sports and activities, medical appointments and travel.
The mother’s proposed orders in relation to both parenting and property were contained in a Minute of Order provided to the Court at the time of final submissions. This document is reproduced in the third schedule but, by way of summary, states that she is to have sole parental responsibility for the children and that they live with her and spend time with the father gradually increasing from each alternate Sunday between 9.30 am to 2.00 pm (supervised by the paternal family), to each alternate Sunday from 9.00 am until before school on Monday (with overnight time to be at the paternal grandparents’ house). This time is conditional upon the father providing negative hair follicle test results. There are additional provisions for special occasions, changeovers, communication and travel. The mother also proposed an injunction pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), to be permitted to change the children’s last names, and for the children to be put on the Family Law Watchlist to prevent the father from removing the children from the country. In terms of property, the wife seeks to be declared solely entitled to 1 J Street (and that she will discharge the line of credit and mortgage within 12 months), to be paid $1,000 per week in spousal maintenance for two years, that she be declared solely entitled to Motor Vehicle 2 and all items in 1 J Street, and that she be declared sole trustee of the Commonwealth Bank of Australia account number …20.
The Independent Children’s Lawyer’s proposed orders in relation to the children is reproduced in the fourth schedule and may be summarised as follows. The mother is to have sole parental responsibility for the children and the children are to live with her. The children are to spend time with the father gradually increasing from each Thursday after day-care or school until 6.00 pm and each alternate Sunday from 9.00 am to 5.00 pm, to after day-care or school each Wednesday until 6.00 pm, alternate weekends, and overnight time on the alternate Wednesday. There are additional provisions for time during holidays and special occasions. The children’s time with the father is to begin with being supervised by O Contact Services, then by paternal family members, and eventually be unsupervised. There are further provisions regarding the children’s names, religion and school enrolment, and participation in parenting programs and counselling for both the parents and the children, as well as hair follicle testing for the father.
On the last day of the hearing the Court was invited to, and made, orders by consent for the parents to participate in a parenting program; for the mother to engage in high conflict counselling; for the father to engage in counselling for addictive behaviours and resilience; and for the children to engage in counselling. The Court also made orders for the children to continue to live with the mother and spend time with the father in accordance with the current arrangements, pending further order and conditional on the above consent orders. A further consent order was made declaring the wife to be the sole trustee of account number …20 with the Commonwealth Bank of Australia and that she be at liberty to apply the proceeds of that account for the benefit of the children. The mother also undertook to the Court that she would not engage the services of therapist Ms QQ, pending further order.
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relied upon:
(a)Outline of Case Document filed 21 April 2023;
(b)Amended Initiating Application filed 21 April 2023;
(c)Updated Financial Statement filed 17 April 2023;
(d)His consolidated affidavit filed 19 April 2023;
(e)Affidavit of Mr N filed 17 April 2023;
(f)Affidavit of Mr S filed 17 April 2023;
(g)Affidavit of Ms T filed 17 April 2023;
(h)Affidavit of Mr U filed 17 April 2023; and
(i)Various documents tendered and marked as Exhibits A1–A34.
In support of her case, the mother relied upon:
(a)Case outline filed 24 April 2023;
(b)Amended Response to Initiating Application filed 17 April 2023;
(c)Her affidavit filed 17 April 2023;
(d)Financial Statement filed 17 April 2023;
(e)Affidavit of Ms V filed 17 April 2023;
(f)Affidavit of Ms W filed 17 April 2023; and
(g)Various documents tendered and marked as Exhibits R1–R41.
In support of her case, the Independent Children’s Lawyer relied upon:
(a)Outline of Case Document filed 26 April 2023;
(b)Family Report of Dr Z dated 9 September 2022; and
(c)Various documents tendered and marked as Exhibits ICL1–ICL2.
During the course of proceedings, the Court tendered two documents, including:
(a)The joint balance sheet received on 27 April 2023, marked as C1; and
(b)The updated joint balance sheet received on 3 May 2023, marked as C2.
Those required for cross-examination included the father, the mother, Mr S (the father’s business partner), Ms T (the father’s sister), Mr N (the father’s father), Ms V (the mother’s mother) and Dr Z (the expert report writer). Mr U was not required for cross-examination for the father’s case, and Ms W was not required for cross-examination in the mother’s case.
A Single Joint Expert Report was prepared by Dr Z on 22 June 2022.
OVERVIEW OF THESE REASONS FOR JUDGMENT
The issues raised in both the parenting and financial aspect of this case are complex. In these reasons for judgment the property issues will be dealt with first, and then the parenting issues. It is necessary to deal with credit issues, and this will be briefly dealt with at the outset.
CREDIT ISSUES
It is neither always necessary nor appropriate to make findings about credit issues in litigation between parents arising out of a broken relationship. It must be recognised that the breakdown of this marriage was a tremendous emotional and social upheaval not just for the mother and the father in this case, but for the children and their extended families. Everyone involved appears to have experienced profound grief which manifested itself in manifold ways at different times, particularly after separation. The litigation was intense for all involved, and very expensive. Perhaps the conclusion of the litigation will serve as a catharsis which hopefully purges once and for all the pervasive enmity that exists between the parents and which has infected their respective families. As I mentioned to the parties before reserving judgment, perhaps it is time to move on, and put behind them a regretful past, and strive to embrace a hopeful future.
During his evidence, the father presented as a man carrying a heavy burden of regret, shame and guilt. This, the Court finds, most certainly related to his gambling addiction, probably extended to his drug use, and may well have extended to the violence that he perpetrated on the mother. The Court finds there to be a stark difference between the credibility of the father in financial matters, as compared to parenting matters. Indeed, the Court accepts his own senior counsel’s description of his evidence in relation to parenting matters as being thoughtful and considered.
By contrast, the father’s evidence about financial matters is highly problematic. His senior counsel described this evidence as “subdued and…reluctant” (Transcript 4 May 2023, p. 14 line 44) which, whilst eloquent, greatly minimised the reality. Even his own senior counsel had to accept in closing submissions that the father’s evidence about his gambling was “unable to assist the Court” (Transcript 4 May 2023, p. 22 line 13) and that some of the evidence, including the photo of the father in a motor vehicle, depicted a “flashy fool” who lives an “Instagram life” (Transcript 4 May 2023, p. 26 lines 13–17). The Court finds that the father’s evidence generally about financial matters is unreliable, incomplete, often internally inconsistent as between his written and oral evidence, frequently vague, and did very little (if anything) to assist the Court to form an accurate impression, let alone make findings, about both his historical and present financial circumstances.
For example, in cross-examination, which would not have been a pleasant experience for the father, his admissions about his gambling addiction were both inconsistent with his own affidavit evidence, and the more objective records produced to the Court on subpoena. Indeed, the Court finds that the father minimised both the fact of his gambling addiction and drug use, the nature and extent of the same, and the financial implications arising. In financial matters, the father was historically willing to be economical with the truth and to mould facts for the purpose and context that suited him.
The mother presented as an intelligent and articulate woman possessed of an admirable persistence in this litigation. Even senior counsel for the father described her evidence as forceful at times, and generally clear. Her evidence about financial matters will be preferred over that of the father. In relation to parenting matters, however, the mother presented as overwhelmingly anxious and emotionally burdened by concerns about how the children can have a relationship with the father in a safe manner. In many ways, her final proposed parenting orders quite appropriately reflect the evidence that was presented before the Court.
In relation to matters of credit, the Single Joint Expert Report of Dr Z dated 22 June 2022 is useful. Dr Z is, amongst other things, an expert in human behaviour and some of his observations about the parents seem to be consistent with the Court’s own impressions. For example, in relation to the father, at paragraph (j) on page 32, Dr Z states:
He appeared to be trying to be as candid as possible, however I felt there was a glibness about his account which made it difficult whether or not to accept what he told me across a broad range of matters, but particularly those involving the relationship, his role in the children’s lives, and drug use and gambling behaviour.
Having closely observed the father over nearly two days of cross-examination, the Court accepts that glibness is an apt description of the father’s evidence. His evidence about financial matters was unconsidered, superficial and, indeed, insincere. He may well have exaggerated somewhat his role in the children’s lives, but the Court is less concerned about his evidence in parenting matters. Interestingly, at section (f) on page 39 even Dr Z noticed the “more solid substrate of parenting attitudes” that exists in the father. This theme continues at section (g) on the same page, where Dr Z refers to his “detailed and emotionally engaged responses to my questions about” the children.
The Court’s findings about the father’s drug use and gambling is consistent with Dr Z’s observations at page 40, section (h) in the third paragraph, where he referred to the father’s evasiveness about his own conduct and motivation and doubted the honesty of his evidence about illicit drug use and gambling. There were no equivalent observations in relation to the mother.
Where necessary, observations will be made about the credibility of the other witnesses called in this case.
THE PROPERTY ISSUES
The polarity of the parties’ proposals in relation to property must be made apparent. The father seeks the sale of the family home at 1 J Street with the wife receiving 55 per cent of the net sale proceeds. The NAB Joint Offset Account number …63 would be closed and the balance transferred to the wife. The order for spousal maintenance would be discharged as from 6 July 2020. The order for costs made on 2 September 2022 would also be discharged. The parties would otherwise retain what they each have.
By contrast, the mother seeks a declaration that she is solely entitled to the property at 1 J Street. She proposes that the father pay spousal maintenance in the sum of $1,000 per week for a period of two years from the date of order. The parties otherwise keep what they have, save for the Commonwealth Bank of Australia account number …20 which would be applied for the benefit of the children. The mother proposes an order that within 12 months she would cause the liabilities to NAB secured over the property to be discharged. The mother opposed any suggestion that either the spousal maintenance, or costs orders against the father, be discharged.
THE APPLICABLE LAW
This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s 75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”), the Full Court considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, which provided guidance on how s 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four‑step approach articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 79, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties;
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
(3)Identify and assess the other facts relevant under s 79(4)(d)–(g) including s 75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
Another legal issue that arises is whether I should notionally add back assets to the property pool. In the Full Court’s decision of Trevi & Trevi [2018] FamCAFC 173, Murphy J explains at [27]:
The Full Court held in AJO and GRO that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
(Footnotes omitted)
Relevant to this case is the first category—that is, the question of adding back expenditure on legal fees. In this regard, the Full Court in NHC and RCH (2004) FLC 93-204 at [55] and [57] states:
55.This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
…
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
A significant issue in this matter was the alleged non-disclosure of the father. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir& Weir (1993) FLC 92-338 at 79, 593 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black & Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti & Giunti (1986) FLC 91-759, and Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
The mother also raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
THE BALANCE SHEET
On the last day of the hearing, immediately before closing submissions, the Court was presented with the following amended joint balance sheet:
Ownership Description Applicants value Respondents value ASSETS 1 W 1 J Street, Suburb E 2,150,000 2,150,000 2 W NAB Savings Account …93 444 444 3 W CBA Smart Access …78 132 132 4 W Household contents 20,000 10,000 5 W Personal effects 20,000 6 W Motor Vehicle 2 30,000 30,000 7 J NAB Joint Account …63 NIL NIL 8 H NAB Transaction Account …34 457 457 9 H Motor Vehicle 3 9,000 9,000 10 H Personal effects 10,000 10,000 Total $2,240,033 $2,210,033 ADDBACKS 11 H Gambling (using wife's card) $75,000 $75,000 12 H Wife personal effects – Wife alleges husband disposed of her personal effects. Husband denies NIL $20,000 13 H Funds spent by the husband from the Line of Credit between 2017 and separation in 2020 $603,000* 14 H Gambling funds in Cryptocurrency account sourced from Line of Credit $220,059 15 H Shortfall of sale of shares for franchise business which on transfers totals $1,500,394 and he asserts he only received $957,000 $543,384 16 H Funds the husband unilaterally transferred to his father from the funds he received for sale of the shares $450,000 17 H Funds the husband transferred to his brother-in-law and sister Mr T and Ms T from the
proceeds of sale of his shares$150,000 18 H Arrears in respect of Orders made for spousal maintenance 20 April 2022 $42,031 19 H Court ordered the Husband to pay the wife's costs for his Application in a Proceeding filed 6 July 2020,
Application for review filed 2 November 2021 and
Application in a proceeding filed 26 November 2021$133,641 Total $75,000 $2,237,115 LIABILITIES 20 J Home Mortgage NAB …05 315,790 315,790 21 J Line of Credit …52 971,404 971,404 22 H Loan from parents Mr N and Ms N 609,363 NA 23 W Outstanding Legal Fees 491,120 24 W Loans from Mr V & Ms V (including legal fees of $191,230.00) $207,532 Total $1,896,557 $1,985,846 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 25 W Super Fund 1 Accumulation Interest 61,804 61,804 26 H Super Fund 2 Accumulation Interest 104,686 104,686 Total $166,490 $166,490 FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 27 W D Class Shares in BB Pty Ltd NK NIL 28 H Beneficiary of Rasheem Investments Trust NIL NK 29 H CC Pty Ltd NIL NK Total NIL NIL
Applicants value Respondents value Total Net Assets (including super) $584,966 $2,627,792
There is no expert evidence about the value of items 4 and 5 on the balance sheet and thus the values asserted by the mother, including the nil value for her personal effects at item 5, will be accepted as an admission against interest. The total gross assets of the parties, therefore, is $2,210,033.
The primary focus of the case was, in fact, the contended add-backs. The Court notes that the concessions made by the father in relation to his gambling commence at item 11 where he concedes that $75,000 should be added back, being the gambling using the mother’s card.
In relation to item 12, counsel for the mother quite properly conceded that there was no evidence of the value of the alleged item disposed of by the father which, in any event, he denies. Item 12 will read nil.
In relation to item 13, the mother seeks an add-back of $603,000 representing funds she contends the father spent from the line of credit between 2017 and the date of separation in 2020, after making two payments amounting to $397,000 on or around 13 June 2017 allegedly to repay a loan to Mr N. This add-back is contentious. The first issue is whether the figure of $603,000 is correct, with the father’s senior counsel contending that some of the transactions comprising this amount appear on the statement as being transactions undertaken by the mother and thus, presumably for her benefit, or that of the family. This, of course, is the father’s evidence. The mother’s evidence is that she did not voluntarily undertake these withdrawals and that, in fact, it was the father who frequently entered transactions under her name, or she made withdrawals under his direction but unaware of the purpose. The Court prefers the mother’s evidence, not just because of adverse credit findings about the father’s credibility, but also because there is an element of consistency between the transactions at item 13, and, for example, the father’s use of the mother’s card for gambling purposes at item 11. On the facts of this case, it is not only plausible, but indeed highly likely, that the father would have undertaken transactions in the mother’s name or required her to undertake transactions on his behalf.
The next issue is the characterisation of these payments. In this regard, it must be acknowledged that the onus of proof was on the father. He clearly made the vast majority of the withdrawals that are represented at item 13. The onus was on him to explain what they were for. The mother’s case was that, in effect, the father was repaying a loan to Mr N that had been provided to finance the redevelopment of J Street, but which had already been repaid out of the sale proceeds of 2 J Street after redevelopment. By contrast, the father’s case seemed to characterise this payment as pertaining to lifestyle and living expenses which may, or may not have included gambling but which, in any event, did not necessarily amount to waste, and thus should not be added back. Senior counsel quite properly acknowledged, however, that the father’s evidence about his gambling was unhelpful. The Court acknowledges the possibility that the payments were for all of the purposes contended above but notes, again, that the onus of proof was on the father to explain these transactions.
The father’s evidence is that his parents provided a total of about $400,000 towards the redevelopment of J Street. He conceded that in an earlier affidavit he had stated that they had only provided $300,000, but at paragraph 62 of his trial affidavit filed 19 April 2023 he explains that he recently spoke with Mr N whose recollection was that it was “close to $400,000 during the course of the build”. To the father’s credit, at paragraph 63 of his affidavit, he concedes that his recollection of amounts of money is poor and he has difficulty remembering with precision amounts of money that had passed between Mr N and himself.
Indeed, he suggests that Mr N’s recollection about this issue would be more accurate than his. As it turns out, the Court will not find the evidence of Mr N to be helpful. The father’s evidence at paragraph 88 of his trial affidavit is that he used $450,000 from the sale proceeds of his interest in the franchise business in repayment of the monies his parents lent to him in respect of the franchise businesses. This transaction took place in late 2019 in two tranches. For present purposes, this repayment does not appear to relate to item 13, but indeed to item 16.
From paragraph 113 of the father’s trial affidavit he gives evidence about the sale proceeds of 2 J Street. He makes no assertion that any part of the sale proceeds went to repay his parents. Indeed, he contends that the mother was responsible for the allocation of the sale proceeds. The father contends that, in effect, enough of the mortgage would be paid off to allow the bank to discharge the mortgage over 2 J Street, the mortgage over 1 J Street would be retained, and the surplus funds would be used to pay, firstly, his parents for the money provided to develop the property and, secondly, as capital for the franchise businesses.
He contends this did not occur, but instead the mortgage was paid off save for about $305,000, leaving them with little or no money. The parties then agreed to obtain $1 million from NAB on a line of credit from early June 2019. At paragraph 118 the husband deposes:
118.The line of credit was opened on or about [mid-] 2017 and subsequent used by both of us. I acknowledge that the majority of funds drawn down on this account were by me. Initial withdrawals were used to pay my parents back and to continue with my investments in the [franchise business].
It is possible, the Court finds, that part of the $603,000 disposed of by the father was, in fact, used to pay his parents for the amount they had loaned him to invest in the franchise business. The submission that the money was a repayment of the loan to purchase J Street is probably incorrect unless the mother’s case is that the father’s parents never actually provided funds towards the franchise business.
In the father’s evidence, he is very vague about the amounts of money borrowed from Mr N to fund the franchise businesses. At its highest, the father deposes at paragraph 71 of his affidavit that these borrowings were “significant amounts of money”. He provides no explanation as to how the specific amounts paid to Mr N were, in fact, calculated.
The cross-examination of the father threw very little light on this particular issue. He contended that one purpose for obtaining the $1 million line of credit from NAB was to pay out loans he owed to his parents. He agreed that on 13 June 2017 he caused to be paid to them out of the line of credit $50,000 and $347,000 that they had provided for the mother and the father to develop J Street. In cross-examination he acknowledged that the vast majority of the transactions referred to in the statements were initiated and conducted by him. He could provide no explanation, even in relation to large withdrawals, often explaining in cross‑examination that he simply did not recall. He agreed that the line of credit was rapidly used. Indeed, the line of credit went from zero on 9 June 2017 to $766,691.26 on 11 August 2017. He agreed that some of the money was used for gambling but contended that some of the money went into the franchise businesses as working capital and to buy equipment, and some of the money may have gone into a property development at Suburb DD.
In cross-examination, he conceded that once the franchise businesses commenced he was receiving income from that business, as well as income from Mr N’s business. He acknowledged that none of the franchise businesses income is disclosed in any tax returns. An extraordinary example of the father’s ignorance about his own financial affairs, and the transactions conducted by him, is that a withdrawal of $300,000 in early 2018 simply could not be explained. Nor could he explain why that money came back into the account a few weeks later. In cross-examination, the father contended that he received only $957,000 when he exited the franchise businesses in late 2019, even though the legal documentation suggests his entitlement was around $1.5 million. When asked why he did not use the money received in late 2019 to reduce the line of credit which stood at a balance of about $1 million at the time, the father explained that he prioritised repaying a loan to his parents, at this time for $450,000. The father’s case is that this represents funds provided by Mr N to invest in the franchise businesses.
To his credit, the father conceded that the mother would not be liable (in the sense of the debt appearing on the balance sheet) for any monies that Mr N advanced after the date of separation, most of which he agreed was for his legal fees. This concession is important because it means that item 22 is conceded by the father to be his personal post-separation liability. For present purposes, however, it establishes that there is no correlation between item 13 and item 22 insofar as the former is, at least in part, an alleged repayment of the loan provided by Mr N, to the father.
For present purposes, the focus is on item 13, a claim by the mother that $603,000 should be added back. At all relevant times, the onus of proof was on the father to establish the precise purpose of these funds. Even the two highly experienced learned counsel representing the mother and the father in this case could not make consistent submissions about what this money was used for. The Court must simply do the best it can in the circumstances of vague and incomplete evidence, but conscious that the onus of proof was on the father, and he has not discharged the same.
Insofar as the father repaid monies to his parents, the Court is not satisfied to the requisite standard that this was a repayment of a loan. The father has not proved his case in this regard. It would not have been difficult for the father to have done so. He was more than capably legally represented at all relevant times. The payments made to Mr N of $50,000 and $347,000 on or about mid-2017 are added back as premature distributions of property. However, in relation to the balance of $603,000, the father’s contentions that some of the money was used for living expenses, and some of it was used to invest in the franchise businesses, is plausible. The Court also finds, however, that some of it was used for his personal gambling, especially in circumstances where it is clear from the evidence that the husband had a chronic gambling problem during this period. It is not possible to quantify the gambling in the present context. It will be treated as a s 75(2)(o) consideration. The add-back at item 13 will be $397,000.
Item 14 is a contended add-back in relation to gambling funds in the husband’s cryptocurrency account that were allegedly sourced from the line of credit. This account was used for the father’s gambling. The mother contends that the amount in question is $220,059. The father denies that there is any such money but, unhelpfully, cannot explain what it means.
There are a number of complications associated with this contention. It seems to be a contention in the mother’s case that this is money standing to the credit of the husband’s cryptocurrency account and that it was ultimately sourced from the line of credit. The latter part of the contention is only established in the most generalised manner because, in reality, the sources of money that the father gambled from included: the income from the franchise businesses; his income from Mr N’s business; the monies in the NAB line of credit; and other unknown sources.
The cryptocurrency aspect of this matter was the subject of a report by a Single Joint Expert Ms EE dated 24 April 2023. Ms EE’s report came into evidence but she was not required for cross-examination by either counsel. It is useful to discuss the evidence contained in her report.
Ms EE firstly defines cryptocurrency, using the Oxford dictionary definition, as “a form of digital or virtual currency where encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds, operating independently of a central bank”. She goes on to explain that cryptocurrency is largely unregulated and can be “bought, sold or transferred over the Internet via cryptocurrency platforms or exchanges like [D Online]”. Transactions do not go through banks and the price of cryptocurrency “is determined by the market and how much people are willing to pay”.
In her report, Ms EE indicated that at least one of the four identified “wallets” for cryptocurrency was likely owned by the father and that there was a net gain of cash from transacting on the D Online account of about $238,112.38. However, she was not able to determine with certainty whether this represented a trading profit or loss. Ms EE indicates that D Online transactions appear to have begun in early 2019 and that the last transaction was in early 2023.
Senior counsel for the father conceded that the expert evidence was incomplete but, in any event, the focus of the inquiry should be on the source of the funds used for gambling, whether through the cryptocurrency account or otherwise. He submitted the Court could not be satisfied of the source of funds used for the purposes of gambling, particularly in a case where the family enjoyed a very comfortable lifestyle that was funded from multiple sources of income, as well as the generosity of two extended families.
Senior counsel’s submission is superficially alluring. Respectfully, it minimises the significance of a number of factors. The father’s gambling addiction is not a fact in issue. The onus of proof was on him to not only explain how the cryptocurrency account operated, but also to do the best he could to provide evidence to the Court about his gambling (losses, profits, source of funds used, etcetera). He failed to do either. Moreover, the father’s own evidence is that whilst he derived income from the franchise businesses, no tax returns were ever filed in relation to the same. The father’s obfuscation can neither be ignored, nor be allowed to create some form of justification for the Court not being able to take into account any consequence of his gambling activities, be it positive or negative.
By contrast, counsel for the mother’s submission was that Ms EE’s report was unchallenged, and therefore that the amount of $220,059 could have at least been the balance of the account at one given point. This is the best evidence on the topic. The Court finds, therefore, that this amount should be added back at item 14.
Item 15 of the balance sheet is a contended add-back of the difference between the amount that the father asserts he received from the sale of his shares in the franchise businesses and the total sale proceeds as documented in material before the Court. The father’s evidence about the significant difference between $1,500,394, and $957,000, was completely unhelpful to the Court. None of the evidence before the Court satisfactorily explained how either figure was calculated, especially in terms of what the value represented. Quite frankly, it beggars belief that the father was not able to shine a light of clarity on this issue, even though it was raised at least one year before the final hearing.
Senior counsel for the father quite properly conceded that the father is confronted with the evidence that he received a sum significantly higher than that which he is prepared to acknowledge. Counsel for the mother relied on the fact of the Australian Securities & Investment Commission (“ASIC”) share transfers demonstrating the father received $1,500,394 and the total lack of reliability of the father’s witness on this issue, Mr B. The Court agrees with the lack of credibility of Mr B. In fact, his own evidence confused the issue even further by introducing evidence that the father did not lead about alleged adjustments to the final payout relating to additional capital investment, taxation, outgoings such as rental and expenses.
The Court finds that it is more likely than not that the father received approximately $1,500,394 as the proceeds of sale of his shares in the franchise businesses and thus the shortfall between that figure, and the amount of $957,000 which he claims to have received, should be added back at item 15. This figure is $543,394.
Item 16 is a contended add-back for $450,000 which the father transferred to Mr N from the sale proceeds of the shares in the franchise businesses. As discussed above, the fact of the repayment is not in dispute, and the issue is whether it was a genuine loan. Senior counsel for the father contends that it was, whereas counsel for the mother contends to the contrary.
The Court’s doubts about the father’s evidence in relation to financial matters have already been acknowledged. Mr N gave evidence. It is clear from that evidence that his financial dealings with the father were informal and undocumented. In cross-examination about the monies allegedly advanced to the father in order to develop J Street, when asked about documentation he explained that this was a matter between the father and himself and that when the father asked for money he gave it. When asked how he calculated $400,000, he said he withdrew it from his bank but could not recall whether it was one withdrawal or multiples, though he suspected there were some withdrawals in amounts of $50,000.
The Court accepts that Mr N prepared a schedule setting out advances to the father for the period December 2019 through to March 2023, but this evidence largely goes to item 22 of the balance sheet, a liability that the Court has already found is, at most, a post-separation liability of the father. In cross-examination Mr N agreed that whilst he provided a schedule in relation to the $609,363 referred to at item 22, he did not provide a schedule in relation to the $450,000 referred to at item 16. He nonetheless insisted that he knew how much he had given the father, and that the money shows in his bank account. He accepted that in his own evidence he said he was owed approximately $400,000 on the sale of 2 J Street but then had to concede that the records indicate that in June 2017 he in fact received $347,000, and then a later payment that day of $50,000. Mr N did not seem clear on this.
Counsel’s cross-examination then focused on the asserted lack of plausibility of Mr N lending money to the father after the father had repaid him $450,000. In fact, counsel suggested that Mr N was merely returning the father’s money to him, a matter which he seemed to accept.
Whether or not the liability at item 22 is a genuine one is ultimately not something for this Court to decide. Both counsel accepted that it was a post-separation liability of the father which should, at most, be noted for the purposes of s 75(2) of the Act. The issue for the Court is whether the payment of $450,000 at item 16 was a genuine repayment of monies advanced by Mr N to the father. The Court is not satisfied that the father has established the genuineness of this loan, on the balance of probabilities. Both his evidence and Mr N’s evidence was vague. The height of Mr N’s evidence about this alleged liability is at paragraph 20 of his affidavit filed 17 April 2023 where he states:
20.When he sold his shares in these [franchises] in 2019 he paid back a loan that his mother and I had given him over the years prior to help him establish these [franchise] businesses initially. I recall at the time [Mr Rasheem] owed us around $450,000 and he paid this back to us in the following payments.
The Court is not satisfied that this evidence established that the loan existed. The amount of $450,000 will be added back at item 16.
Item 17 is a contended add-back for funds that it is clear the father transferred to his brother‑in‑law and sister from the proceeds of sale of his shares, in the sum of $150,000. The theme of lack of transparency in relation to these financial transactions continues in relation to this purported loan repayment. A Mr U features in the evidence about the repayment of the loan at item 17 but, curiously, neither in the affidavit of Mr U, or in the affidavit of the father’s sister, Ms T (a beneficiary of the loan repayment), is there even a skerrick of evidence about this transaction. The contended loan is simply implausible. It would have been very easy for the father to prove this in the evidence of Mr U or Ms T, but there is no such evidence. There will be an add-back as contended at item 17.
d. Showing any documents referrable to these proceedings to the children and/or allowing and/or causing any third party to do; and e. Involving the children in any specific dispute between the parents and/or allowing any third party to do.
CHANGE OF NAME
22. That the father shall do all acts and things and sign all documents necessary to apply to the NSW Registry of Births, Deaths and Marriages to change the name of:
a. X born 2018 to “X”; and,
b. Y born 2019 to “Y”
on the Register referred to in Section 43 of Births Deaths and Marriages Act, within seven (7) days of written request of the mother together with all necessary documents for his review and signature.
23. In the event the father fails to comply with order 22 above, the mother is authorised to apply to the NSW Registry of Births, Deaths and Marriages to change the name of:
a. X born 2018 to “X”; and,
b.Y born 2019 to “Y”.
on the Register referred to in Section 43 of Births Deaths and Marriages Act 1995
without the father’s consent first being obtained.
FAMILY WATCHLIST
24. The father, Mr Rasheem born 1987, by himself, his servant and/or agent is hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 from removing or attempting to remove or causing or permitting removal of the children:
a. X born 2018 (male); and
b. Y born 2019 (male)
from the Commonwealth of Australia.
25.It is requested that the Australian Federal Police give effect to Order 12 above by forthwith placing the names of the children on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Watch list until each child attains the age of 18 years.
OVERSEAS TRAVEL AND PASSPORTS
26. Pursuant to Section 65Y (2) (b) of the Family Law Act 1975 the mother shall be authorised to travel with the children outside the Commonwealth of Australia, or to give her certified written consent for the children to travel, without the father’s consent provided however the mother shall provide to the father not less than 30 days’ notice of such travel.
27. The mother is permitted to apply for and obtain the issue and renewal of an Australian passport for each of the children under the provisions of the Australian Passports Act 2005 without the father’s written consent.
28. For the avoidance of any doubt, the children’s Australian passports shall be retained by the mother at all times.
29. The father be restrained by injunction from applying for any passport for either and/or both children including but not limited to an Australian and/or Country H passport for either and/or both children.
30. The Australian Federal Police are hereby authorised to cause the removal of the name of the children from the Family Law Watch list for the sole of purpose of permitting the said children to travel outside Australia with the mother or with the mother’s certified written consent for the children to travel pursuant to orders herein.
FINAL PROPERTY ORDERS
31. That the wife be declared solely entitled to the property 1 J Street, Suburb E in the State of New South Wales being the whole of the land comprised in Folio Identifier Lot … (“the Suburb E property”), to the exclusion of the husband.
32. The amount being paid by the husband to the wife for spousal maintenance pursuant to orders made on 20 April 2022 shall increase to $1,000.00 per week and continue for two years from the date of orders herein.
33. That the wife shall be declared solely entitled as against the husband to the following items of personal property:
a. Motor Vehicle 2 registration number …
b. All items of personality currently retained in the Suburb E property.
34. That the parties be declared the sole owners of each of their respective superannuation interests held in their sole names.
35. That the wife be declared the sole trustee of account number …20 with the Commonwealth Bank of Australia and be at liberty in her absolute discretion to apply the proceeds of that account for the benefit of the children of the parties.
36. That within 12 months of the date of orders herein the wife shall cause to be discharged the line of credit account number …52 and mortgage account number …05
in favour of the National Australia Bank Limited and secured upon title of 1 J Street, Suburb E.
NOTATION:
A. The Court Made Orders for Spousal Maintenance on 1 November 2021 and 20April 2022 which remain unpaid and outstanding.
B. The Court made Orders for the husband to pay the wife’s professional Costs of $133,641.00 on 2 September 2022 which remains unpaid and outstanding.
SCHEDULE FOUR – ICL’S PROPOSED FINAL ORDERS
FINAL PARENTING ORDERS by the ICL
PREVIOUS ORDERS
1.That all previous Orders be dismissed
PARTIES’ ABILITY TO CHANGE PARENTING ORDERS
2.The court make the following orders subject to any agreement as evidenced in writing, as between the father and the mother to alter on a temporary or permanent basis some of the orders by this Court
PARENTAL RESPONSIBILITY
3. The Respondent (the mother) shall have sole parental responsibility in relation to the children, X, born 2018 and Y, born 2019 collectively known as “the children”; subject to the following: -
Medical and ancillary Health professionals
i. When the children are in need of any medical or allied heath attention, the attending health professional is not to be a friend of or a relative (directly or indirectly) of any member of the extended parental or maternal family.
Children’s names
ii. It is declared that the children shall be known for all official purposes such as but not limited to passports, school registrations medical and allied health and baptismal records as, X and Y.
iii. In addition to the names referred to at Order 3ii, the mother and the Applicant (the father), paternal and maternal family members together with friends of the families and friends of the children may refer to the children as:
(a) in the case of X as the child accepts or asks to be referred
(b) in the case of Y as the child accepts or asks to be referred
Religious Practice and Faith
iv. Each parent, whilst the children are in their care, is at liberty to instruct the children in and or to allow the children’s participation in the Christian and/or Orthodox faiths.
v. Each parent, whilst the children are in their care are each at liberty to take or to refrain from taking the children to church when the children are spending time with the parent.
vi. Each parent will comply with any religious instructions as it forms a part of the school curriculum of the schools at which the child or children are attending.
vii. The parents shall not in a derogatory manner, discuss with the children or with any person within the hearing of the children; either parents' personal religious beliefs or comment upon the religious instruction provided to the children.
Baptism
viii. The mother shall within three (3) months of these orders have organised a time, date and place for the Child Y to baptized in the same manner as the child’s brother X.
a. The baptismal service to be age appropriate to the Child Y
b. Attendance by the father and paternal family shall be by consent with the mother and failing agreement, the Baptismal service is to be arranged at a church location that can facilitate a telecast of the service.
c. Godparents, if required, are to be nominated by the mother in accordance with Order 4.
d. The mother shall advise the father in writing of the Baptismal arrangements made within three (3) months of this order.
ix. In the circumstance that the mother fails to make arrangements for the Baptism of Y, then the father shall be at liberty to arrange the baptism in accordance with and as applicable to the father Order 3 v and vi.
x. The mother and or the father shall upon request, by the other provide a copy of the Y baptism certificate within seven (7) days from the date of such request made in writing.
xi. Each parent shall equally be responsible for any costs reasonably attributable to the associated with the baptism of Y limited to formal clothing and church regalia and fees.
Schooling
viii. The mother shall inform the father by use of the Our Family Wizard within fourteen (14) days from the date of these orders the name of the school that she is considering enrolling, or has enrolled, X into for the commencement of school in 2023, and when available the same details in respect of Y.
4. In exercising sole parental responsibility, as described by Order 3 the mother before making a child related long-term decision shall:
i inform the father in writing about the decision/s proposed to be made;
ii the father shall have 14 days commencing the day upon which decision proposed was communicated, in order to respond in writing with any view and suggestions.
iii The mother shall genuinely consider the father’s view and suggestions as provided in writing and the mother will endeavour to incorporate those views as the mother considers practical and in the best interest of the children.
iv The mother shall communicate her decision to the father within forty-eight (48)hours.
FAMILY COUNSELING AND SUPPORT
Parenting Program5. The father and the mother are to, within five (5) days of these Orders, enroll in and then attend a Parenting Program, notwithstanding such course may have already been undertaken, and are to ensure that the program enrolled in by the father and the mother is conducted with a in person attendance requirement.
i. The father and the mother must notify the other parent and the ICL in writing and provide confirmation of such enrolment in the parenting program, the name of the program and in addition evidence of the program’s completion within fourteen (14) days of such completion.
ii. Evidence of completion shall be a letter, on the letter head of the organisation and signed by a person of authority in the organisation conducting the parenting; advising completion of the program.
The Respondent - mother - High Conflict Counseling
6. The mother is to within (five) 5 days of these Orders have made an appointment to attend upon a psychologist specializing in persons having experienced Domestic Violence and high Conflict parenting as nominated by the ICL.
i. The mother is to attend and participate in the counselling as directed by the psychologist.
ii. The mother is to attend as directed by the psychologist.
iii. A purpose of the psychological treatment is to assist the mother in her acceptance of the transition by the children to unsupervised time with the father and Parental family.
iv The psychologist conducting the counselling shall be provided with the reports of Dr Z as well as any subsequent information outlining the reasons for the court's decision, inclusive of reasons, and orders.
v. The psychologist is at liberty to inform the ICL of non-attendance upon the psychologist or noncompliance with treatment from time to time in the period twelve (12) months from the date of these Orders.
The Applicant - Father counselling for addictive behaviours and Resilience
7. The father is to within 5 days of these Orders to have made an appointment to attend upon a psychologist counsellor specializing in addiction - gambling and anger management in a domestic family setting as nominated by the ICL.
i. The father is to attend and participate in the psychologist or counselor as directed by the psychologist or counselor.
ii. The father is to attend as directed by the psychologist or counselor.
iii The psychologist conducting the counselling shall be provided with the reports of Dr Z as well as any subsequent information outlining the reasons for the court's decision, inclusive of reasons, orders and the transcript of the evidence of Dr Z.
iv. The psychologist or counselor is at liberty to inform the ICL of non-attendance upon the psychologist or noncompliance with treatment from time to time in the period twelve (12) months from the date of these Orders.
CHILDREN COUNSELLING
8. The mother restrained from allowing a child or children to participate counselling with a Psychiatrist, Psychologist or Counselor until such time as the mother has attended upon her psychologist as referred to in Order 5 herein except for as follows
i.The mother is at liberty to discuss with her counsellor the need for a child or children to receive counseling.
ii. Counselling with respect to a child or the children may take place after the occurrence of Order 5 and the mother discussing the issue of counseling with the attending child or children’s General Practitioner and upon advising the father in accordance with Order 4.
Lives with and Spend Time
9. The children will live with the mother and spend time with the father.
Farther – Communication with the Children10. The father shall be permitted to forthwith communicate with the children as follows:
i by letter and shall be permitted to provide photographs and gifts to the children by mail and within seven (7) days of the date of this Order the mother is to provide the father with an address to send such items, and
ii. the father shall have audio-visual communication with the children as agreed in writing between the mother and the father; but failing any agreement as follows
a. Each Tuesday and Thursday commencing at 5.00pm for a duration of 30 minutes, subject to the child/ren’s wishes which may be less;
b. the birthday of a child, on such occasion that the father will not be spending any physical time with such child, then, at a time nominated by the mother for a duration of 30 minutes subject to the child’s wishes which may be less;
c. the father’s birthday, on such occasion that the father will not be spending any physical time with the children, at a time nominated by the mother for a duration of 30 minutes subject to the child’s wishes which may be less
e. on such Orthodox religious days, upon which the father will not be spending any physical time with the children, for a duration of 30 minutes subject to the child/ren’s wishes which may be less.
iii the children are at liberty to contact the father as they wish and the mother shall facilitate such communication, upon request of the children.
11. The mother shall ensure:
i. that a postal address is provided to the father for the purposes of mail items within forty-eight (48) hours from the date of these orders and thereafter notify of any subsequent changes to such postal address within forty-eight (48) hours.
ii. provide the father with the contact number or email address at which to contact the children.
iii. the children have access to a charged Wi-Fi and data accessible device with audio-visual communication capabilities
iv. the device to be used by the child or children is operational v. the child or children has privacy during conversations with her father vi each parent shall keep each other informed of their residential address, contact telephone number and email address, and will notify each other within forty – eight (48) hours of any change to those details.
Communication as between the parents
12. The only means of communication as between the parents in order to facilitate Orders 9 and 10 shall be in accordance with order 19 by means of the parenting application Our Family Wizard.
Farther to – Spend time with the Children
13. From the date of these Orders, and for a period no greater than six (6) moths, the mother is to have commenced counselling in accordance with these orders herein; the children are to spend time with the father on a supervised basis, with supervision to be provided by O Contact Services, each Thursday after day care/preschool/school as is applicable to the child/ren until 6:00pm and between the hours of 9.00am and 5.00pm each alternate Sunday.
14. From the first Saturday on a date six (6) months after the date of these orders, the children spend time with the father as follows for the following four (4) months from 9.00am to 5.00pm each alternate Saturday and Sunday, with such time to be supervised by the paternal grandmother, Ms N, or the paternal Aunt, Ms T
i. The paternal grandmother and paternal Aunt to file with the Court the usual undertakings in respect of supervision.
15. Upon compliance with, and the expiration of the time provided for by order 14 and conditional upon the father providing the mother with, at least seven (7) days prior to the commencement of this order 15:
i. A Negative Hair follicle Test; and
ii. A letter from his treating doctor or therapist evidencing attendance upon treatment for gambling and evidencing no concerns with respect to the father’s parenting abilities; the children are to spend time with the father as follows:
a. From after school/day care until 6.00pm each Wednesday;
b. From 9.00am to 5.00pm each alternate Saturday and Sunday, commencing with a Saturday.
iii. With such time in Order 15 to be supervised by the paternal grandparents or the father’s sister Ms T, without admissions by the father.
16. Upon compliance with, and the expiration of the time provided for by Order 15 and conditional upon the father providing the mother with, at least seven (7) days prior to the commencement of this Order 16:
i. A Negative Hair follicle Test; and
ii. A letter from his treating doctor or therapist evidencing attendance upon treatment for gambling and evidencing no concerns with respect to the father’s parenting abilities, the children are to spend time with the father as follows:
a. From the end of the period of order 15, and for the next six (6) months, from after school/day care until 6.00pm each Wednesday; and
b. overnight time to occur each alternate Saturday and Sunday, such that when time occurs on a Saturday time spent will be from after school/day care on Friday to 5.00pm on Saturday, and when it falls on a Sunday, from 9.00am on Saturday to 5.00pm on Sunday.
iii. Orders 16, to be supervised by the paternal grandparents or the father’s sister Ms T, and with the overnight stays to occur at the paternal grandparent’s place only.
17. Upon compliance with, and the expiration of the time provided for by Order 16 and conditional upon the father providing the mother, at least seven (7) days prior to the commencement of order 17, with:
i. A Negative Hair follicle Test (final test); and
ii. A letter from his treating doctor or therapist evidencing attendance upon treatment for gambling and evidencing no concerns with respect to the father’s parenting abilities (final letter), the children are to spend time with the father as follows:
a. From the end of the period of order 16 and for next four (4) months, from after school/day care until 6.00pm each Wednesday, or other day as agreed between the parties; and
b. Overnight time to occur from after school/day care on Friday to before school on Monday, each alternate week.
iii. Time spent by the father with children pursuant to Order 17 is to be unsupervised
18. A failure to provide a hair follicle test and the letter as required by Orders 15.16 and Order 17 shall cause time spent by the father to recommence as per order 14 and progress again through order 15, 16 and 17.
REGIME OF DRUG TESTING
19. The father in the undertaking Hair Follicle testing shall submit to Hair Follicle Testing in order to satisfy Order 15, 16 and 17 herein, at the father’s expense.
i. The father shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair drug testing purposes.
ii. Collection is to be conducted by a qualified and certified collector. Chain of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing.
iii. To give effect to this order, the father is required to maintain his head or body hair by agreeing not to; cut, bleach or dye between the date of this order and the time of collection of hair;
iv. The father is at liberty to provide AWDTS with a copy of these orders;
v. The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the each of the parties and the ICL upon receipt of such test results.
vi. The hair drug test screen shall test for the following substances:
Cannaboids including ugl quantum, Opiates, Amphetamines, Methamphetamine, Benzoids, Alcohol, and Cocaine.
vii. AWDTS is required to utilise the testing services or an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO ISO/IEC 17025:2005 by the relevant National Accreditation body. AWDTS selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
20. Upon compliance with, and the expiration of the time provided for time provided for by Order 17 the father spend time with the children as follows:
i. From after school/day care until 6.00pm each Wednesday, or any other day as agreed between the parties;
ii. From after school/day care on Friday to before school on Monday, each alternate week; and
iii. From after school/day care each alternate Wednesday until before school on Thursday, that is each alternate Wednesday overnight, in the week that the father does not spend time with the children over the weekend.
Special Days
Christmas21. During the Christmas period the children shall spend time with the father as follows:
i from 12 noon Christmas Eve until 12 noon Christmas Day in odd numbered years; and
ii from 12 noon Christmas Day until 12 noon Boxing Day in even numbered years.
Easter
22. As maybe agreed between the parties to ensure that the children are able to celebrate the Easter according to the Christian and Orthodox calendars in any given year
23. The parties shall advise each other by the end of January in any given year of arrangements for the time to be spent with each family during the Easter celebration period.
Father’s Day
24. On Father’s Day from 9.00am until 5.00pm.
Child/ren’s birthday25. On the child’s birthday when the child is not in the father’s care for a period with both children for a period of four (4) hours by agreement between the parties and failing agreement from 3.00pm until 7.00pm.
Father’s birthday -
26. The children shall attend upon the father at such time as maybe agreed in writing but failing agreement as follows: -
i. when such birthday occurs on a weekday, from 3.00pm until 7.00pm and
ii. when such birthday occurs on a weekend, from 9.00am until 5.00pm.
During the Christmas holiday period:
27. The father is to spend time with the children during the Christmas holiday period as follows:
In the year 2023
i.For the first week of the Christmas school holiday period commencing in 2023 and
In the year 2024
ii. for two weeks of the Christmas school holiday period commencing, the day after boxing day in 2024;
In the year 2025 and to the future as follows:
iii. For the first half of the Christmas school holiday commencing 2025 and thereafter period, thereafter continuing in the for the first half of the school holiday in odd numbered years.
iv. For the second half off the Christmas school holiday period, thereafter in even numbered years. Commencing 2026.
Suspension of Time
28. In the event the children are in the father’s care, his time with the child shall be suspended as follows: -
Mother’s Day
i. On Mother’s Day from 9.00am to 5.00pm;
A child/REN’s birthdayii. On the child’s birthday when the child is not in the mother’s care, for a period of four (4) hours by agreement between the parties and failing agreement from 3.00pm to 7.00pm.
Mother’s birthday
iii. On the mother’s birthday from 10am to 7pm and in the event that the child/ren are at school/day care on such days the mother shall spend time with the children from after school until 7pm on such days.
Cancellation of Ordered time
29. The mother shall not be permitted to cancel any of the visits or times as set out in these orders with respect to the father spending time with the children, due to sickness or for any other reason, without agreement from the father, and in the event of no agreement, no without adequate medical report from the children’s treating doctor evidencing medical reason why the visit or contact with the father should not proceed.
30. In the event the father’s time with the children is not permitted to proceed as per order 27, the mother will agree to make up time with the father and the children within the following week.
Communication between Parents
31. All communications as between the parents shall be via the parenting app Our Family Wizard inclusive of school and extracurricular, appointments such as medical or otherwise and travel involving the children and school and extracurricular activities of the children.
i. Each parent will bear the costs of purchasing a subscription to utilise the Our Family Wizard
ii. Our Family Wizard is to be set up within 5 days of the date of this order.
Child Emergency and sickness Communication
32. In the case of an event such as family emergency, serious medical condition or illness which directly or indirectly involves or concerns the child then the parent with whom the child or children are in the care of shall; within three (3) hours, of the event, advise the other parent by means of Our Family Wizard.
Medical and Allied Health services
31. In accordance with the sole parental authority provided by these orders, it is for that mother to make such appointments as maybe necessary to provide for the medical, dental and allied health care of the child/ren
i. The exercise of this authority is to be in accordance with Order 4 and the mother is to ensure that the father is aware of all appointments and treatment provided to the children.
ii. As maybe agreed between the parents in writing the father is at liberty to take the child or children to an appointment made by the mother with a medical, dental or allied health provider.
iii. The payment of any out of pocket, gap payments of medical, dental or allied health treatment expenses arising from such specialist treatment shall be paid by way of such contribution as agreed between both mother and father and upon failing agreement then both parents shall contribute equally to outstanding costs.
iv. Keep each other informed of the names and addresses of any treating medical or other health practitioner who treat the child/ren.
Authorities and Exchange of Information
32. Each parent authorizes any educational, health or allied health care practitioner or extracurricular activity provider who may treat, the child from time to time to release any and all information reasonably requested by either parent in relation to the children’s health and wellbeing.
33.If there is a cost associated with the provision of any information or documents under these orders from the children's doctors, health care and other treatment providers, the expense shall be borne by the parent requesting the information.
Non – denigration
34. During the time the children are with either parent, that parent or any family member or other person present will:
i Speak of the other parent respectfully
ii Not denigrate or insult the other parent in the presence or hearing of the child/ren and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child/ren.
iii Not discuss these proceeding with, or in the presence or hearing of the child/ren, and will ensure no other person discusses the proceedings in the presence or hearing of the child/ren, including but not limited to issues involving why the relationship ended, any allegations or perceptions of domestic and family violence, or child support.
Changeovers
35. For the purpose of implementing these orders unless as agreed in writing between the parents’ changeovers as required by these orders are to occur at KFC Suburb G when not occurring at the children’s school/day-care pursuant to these orders.
36. The mother may have an accompanying person to administer the handover or arrange for a paternal family member to undertake the handover.
SCHOOL REPORTS AND ACTIVITIES
37. These orders authorize the father to attend:
i attend all extracurricular activities for the children.
ii attend school/daycare/preschool functions that otherwise allow for parental attendance including assemblies, presentations and parent teacher interviews.
38. The father is in writing to advise the mother of his attendance prior to the event and the mother shall inform the children.
39. the father may have contact with the children to alert them to his location at the event at which the father is attending
40. The father shall not approach nor interact with the mother directly or indirectly whilst in attendance, unless consented to by the mother prior to the event
41. The parents are at all times when in attendance at an event are to remain child focused, be of good behaviour and follow any direction of an official of the event.
Contact Centre/Private Service
42. Nothing in these orders is to be taken as binding the Contact Centre or the private service provider.
43. Within 48 hours hereof the mother shall cause these orders to be served upon the Contact Centre and or private service provider
Travel
44. The parents are at liberty to travel interstate and overseas with the children.
i. The mother has the opportunity for 4 weeks per year to suspend the father's supervised time, provided however that such time as is suspended is for no more than 2 weeks in any block period and does not include, unless otherwise agreed in writing, the child 's Birthday, the father's Birthday, the Easter weekend, Christmas or any other significant days as may be agreed between the parties.
ii. The father upon written agreement with shall be at liberty to discuss mother travel for a period as identified in Order 44 i above.
Children’s Passport
45. X, born 2018 and Y, born 2019 are permitted to, have an Australian passport issued in names as described by this order 39; and travel internationally.
46. The mother be at liberty to lodge an application for a passport for the child/ren and the other parent will sign all such necessary documents and provide all such necessary certified copies of identification within 28 days of their receipt of the request to do so, to enable the application for passport to be lodged
47. The mother be at liberty to maintain current passports for each of the children at all times thereafter
48. Once the children have been issued with a passport, the child/ren’s passport is to remain with the mother unless the child/ren are to travel overseas with the father pursuant to these Orders, in which case the mother is to make the child’s passport available to the father in sufficient time to allow the father to make the necessary arrangements for the travel.
49. If the child/ren travel outside of Australia with the father, the father is to return the child/ren’s passport to the mother within seven (7) days of the children’s return to Australia.
Travel Notification
50. If either parent intends on taking the child interstate or internationally the travelling parent will provide to the other parent no less than 90 days prior to the departure, written notice of the proposed travel, including details of:-
i. The purpose of the travel;
ii. The approximate dates of travel;
iii Destination(s);
iv. The means of travel;
v. the names of any additional persons accompany/travelling with the children and the parent
vi. Accommodation arrangements; and
51. The travelling parent shall 28 days prior to the departure provide
i. Travel itinerary;
ii. Contact numbers for the children whilst travelling; and
iii. The return airfares for the children.
52. The parents will not take the children to a country where the Hague Convention on the civil aspects of the abduction of children is not in force with Australia, or to a country, region, city or event where there is a department of Foreign Affairs and Trade (or such other successor Department as may be in existence from time to time) travel advisory in place of “do not travel” or “reconsider your need to travel unless expressly agreed to by both parents in writing
53. The traveling parent shall ensure the children contact the other parent once a week, with the travelling parent to facilitate all calls and ensure privacy, if the travelling parent is not in an area that has mobile phone or wifi coverage, then the travelling parent will ensure the children contact the other parent as soon as they reach an area that does have mobile telephone or wifi coverage
54. The parents are restrained by injunction from applying for any Country H passport for either and/or both children
DISPUTE RESOLUTION
55. That in the event there is a dispute about the children or the interpretation or enforcement of these Orders, the parents before making any further application to the court the parents shall:
i Contact a Family Dispute Resolution Practitioner or Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching an agreement about changes to be made to the parenting arrangements for the children; and
ii The choice- of Family Dispute Resolution Practitioner, or family dispute resolution service, shall be determined by the parent seeking family dispute resolution providing to the other parent a list of three (3) individuals or services, from which the other parent shall select one individual or service; and
iii The costs of the Family Dispute Resolution Practitioner or Family Relationship Centre (if any) shall be paid equally by the parents.
iv. Mediation shall be conducted by an organisation recognized under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney- General or a person authorised under s.10G of the Family Law Act 1975 (as amended).
Costs
56. The mother and father are to equally share the costs of Dr Z in the amount of $10,708.50 and to have paid their contributions to the trust account of Shedden and Associates by the 17 May 2023.
Independent Childrens Lawyer
57. That the ICL be retained for a period of 12 months and during this period the mother and the father or their legal representatives cooperate with all requests made of them by the ICL
58. That within fourteen (14) days of the date of the Orders being made the ICL shall meet with the children for the purpose of explaining the Orders to the children.
59. Each of the parties shall pay equally the costs of the ICL being the sum of $13,589.50 each party within twenty-eight (28) days of the date of the making of these orders.
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