Rilak & Tsocas (No 8)
[2015] FamCA 1235
•13 November 2015
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO. 8) | [2015] FamCA 1235 |
FAMILY LAW – CHILDREN – Best Interests – Where the child is five years of age – Where she lives with her mother – Where the parties’ applications changed throughout the matter – Where the father and ICL sought that the father has sole parental responsibility and that the child live with the father and spend supervised time with the mother once a week – Where the mother sought that the parties have equal shared parental responsibility, that the child live with her and spend each alternate weekend with the father – Where the mother alleged that the father sexually abused the child and engaged in family violence – Where she conceded that her allegations were not supported by evidence – Where the single expert opined that the child is living in an emotionally abusive household with the mother – Where the child has meaningful relationships with both parents – Where there is a high level of conflict between the parents – Orders made for the father to have sole parental responsibility, the child to live with the father and spend supervised time once a week with the mother.
FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the father and mother cohabited for 15 months – Where the parties did not intermingle their assets and liabilities – Where the father seeks that no property orders are made – Where the mother seeks that the father pay her $250,000 – Where the father made a greater financial contribution – Where since separation the mother has had the physical care of the child – Where the mother made a greater parenting contribution – Where overall contributions are found to be 25 percent to the mother and 75 percent to the father – Where no s 75(2) adjustment is appropriate – Where an order is made for the mother to receive 25 percent and the father to receive 75 percent of the available property and superannuation.
| Evidence Act 1995 (Cth) s 140 Benson and Hughes (1994) FLC 92-483 |
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 13 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 27 – 29 January 2015, 20 – 22 May 2015, and 4 – 7 August 2015 |
REPRESENTATION
SOLICITOR FOR APPLICANT MOTHER: | Jodhi Coady Law 27 – 29 January 2015, 20, 21 and 22 May 2015 Ms Cotterill-Rogers re immunisation on 29 January 2015 NSW Law Society Pro Bono Scheme | |
| APPLICANT MOTHER IN PERSON: COUNSEL FOR APPLICANT MOTHER: | 22 May 2015, and submissions re immunisation filed 18 August 2015 Ms Saw | |
COUNSEL FOR THE RESPONDENT FATHER: | Mr Levy | |
| SOLICITOR FOR THE RESPONDENT FATHER: | Watts McCray Lawyers | |
| COUNSELFOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor | |
Orders
PARENTING
All previous orders with respect to B XXX (aka B Tsocas or B Rilak or B Tsocas-Rilak) (“the child”) born … 2010 are hereby discharged.
Without requiring the permission and/or consent and/or signature of the mother, Mr Tsocas (“the father”) is authorised to apply to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “B XXX” be registered as “B Rilak-Tsocas” (“B”).
Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the NSW Registrar of Births Deaths and Marriages shall register the child’s name as “B Rilak-Tsocas”.
The father shall forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages.
The father shall have sole parental responsibility for long-term decisions about the child.
The child shall live with the father.
Pursuant to s 68Q of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that:
(a)These Orders are inconsistent with the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at Town I on 18 April 2015; and
(b)The whole of the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at Town I on 18 April 2015 is invalid.
Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with Ms Rilak (“the mother”) at such times and on such dates as may be arranged with and supervised by Interrelate, Suburb J.
Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:
(a)commence not before 14 days after the child commences living with the father;
(b)occur on a Saturday or Sunday, not more than once per week;
(c)occur at the equally shared expense of the parents; and
(d)be suspended in the event the father elects to take the child outside the Commonwealth of Australia pursuant to Order (21).
For the purpose of Order (8) above, each party shall:
(a)contact Interrelate within seven days of the date of these Orders and arrange an appointment for an intake assessment;
(b)attend the assessment;
(c)comply with all reasonable rules of Interrelate; and
(d)comply with all reasonable requests or directions of the staff of Interrelate.
In the event that the child’s time with the mother does not occur because of the child’s illness or because of some circumstance other than the unavailability of the mother, then the father is to:
(a)provide a medical certificate where applicable; and
(b)arrange makeup time for the child with the mother as close to the scheduled period as is practicable.
The child shall communicate with the mother by electronic means each Tuesday and Thursday for a period of half an hour between 5.00 pm to 6.00 pm, with the father to initiate the call. The communication may occur by telephone or by Skype as the parties may agree and in default, by telephone. The father is at liberty to conclude the telephone call or Skype call in the event that he is of the opinion it is not in the child’s best interests for the call to continue.
The father shall be at liberty to arrange for the child to be vaccinated at X Hospital in accordance with the recommendations of Dr Y.
The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother’s views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes.
Unless the parents otherwise agree in writing, the mother be restrained from approaching:
(a) the child, except in accordance with these Orders;
(b)the residence of the child or the premises in which she is staying from time to time, except in accordance with these orders; or
(c)any pre-school or school that the child might attend from time to time, or any place where the child participates in extra curricular activities.
Each parent is restrained from denigrating the other parent or any member of the other parent’s family and/or discussing these Court proceedings in the presence or hearing of the child, and each parent is restrained from causing, allowing or permitting any other person to do so in the presence and/or hearing of the child.
The mother is restrained from removing and/or causing or allowing the child to be removed from the Commonwealth of Australia.
The Court requests that the Australian Federal Police place the name of B (Female) on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain B on the Watch List until … 2028, save that the Court noted that the father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order (21) hereof.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders.
The father is at liberty to apply for a passport and or renewal of a passport for the child without first obtaining the consent of the mother.
Pursuant to section 65Y(2)(b) of the Act, the father is at liberty to travel overseas with the child.
In the event that the father intends to travel overseas with the child, he shall provide written notification to the mother of this intention to travel 28 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.
If the child would have otherwise spent time with the mother during the period when the child is overseas with the father, upon the child’s return to Australia the father will nominate a day or days on which the missed time with the mother will be made up. The father will appoint a day or days for such make-up time not later than three months after the child’s return to Australia, unless the parents otherwise agree.
At the times when the father elects to travel with the child outside the Commonwealth of Australia pursuant to Order (21) herein, the child’s name is to be removed from the Airport Watchlist for the period of that travel and placed back on the Airport Watchlist upon his return with the child.
The parents shall forthwith make appointments to attend upon Ms RR, psychologist, telephone number (02) …, or any other family therapist agreed to by the parties.
The father shall provide to the therapist a copy of the Orders of the Court, the Reasons for Judgment, together with a copy of the report of Dr C dated 28 May 2014.
The parents shall attend such appointments as the therapist makes and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for the child.
The parents shall share equally the fees of any professionals engaged to assist them and the child pursuant to these Orders.
The father shall keep the mother informed as to any school enrolment he makes for the child and shall do nothing to prevent the mother from obtaining information about the child’s progress directly from the child’s school.
The father shall advise the mother immediately if the child suffers illness or injury requiring hospital admission.
Not less than once each week the father shall send to the mother an email about the child’s health, general welfare and activities.
The parents shall maintain courtesy and civility in all communications with each other and shall not make comments of an insulting or derogatory nature about each other in the child’s presence or hearing.
Each parent shall pay to Legal Aid NSW, one half of the costs of independent representation for the child in accordance with the relevant legal aid scale, such payments to be made within six months of receipt of a memorandum of fees from the Independent Children’s Lawyer, or otherwise by agreement with Legal Aid NSW.
Pursuant to s 62B and s 65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
Within two months from the date of these Orders the father shall pay to the mother the sum of $146,950.67 minus any amount owing by the mother to the father under an unpaid award for costs where the quantum of the award has been fixed by the Court, by assessment or by agreement (“the property settlement payment”). The Court noted that allowance for a costs award of $17,000 pursuant to an order of 20 June 2015 is included in the amount of $146,950.67.
In the event that the property settlement payment is not made within two months of the date of these Orders, the father shall forthwith list the property at EE Street, Surburb K in the State of NSW (“the EE Street property”) for sale and sell the property as soon as practicable.
In the event that the EE Street property is listed for sale pursuant to Order (36) herein, the father shall do all things and sign all documents necessary to sell the property by public auction at the earliest practicable date for the best price reasonably obtainable and after adjustments and costs of sale to disburse the proceeds of sale as follows:
(a)to discharge the mortgage registered on the title of the property;
(b)to the mother as she may direct the property settlement payment; and
(c)the balance to the father.
In the event that the EE Street property is not sold within 12 months after the date of these Orders, the father shall forthwith on the expiration of that period, pay $10,000 to the mother.
In the event that the EE Street property is sold within 12 months after the date of these Orders and 25 percent of the income tax assessed against the father in respect of the capital gain on the sale of the EE Street property is less than $10,000, forthwith upon receipt of the assessment, the father shall pay to the mother, an amount equating to that shortfall.
Unless otherwise provided above, the mother be otherwise solely, legally and beneficially entitled to the exclusion of the father, to all other property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders, including but not limited to:
(a)money deposited in any financial institutions in her name;
(b)shareholdings;
(c)insurance policies;
(d)motor vehicles;
(e)all household furniture and personal effects; and
(f)all superannuation interests held in her name.
Unless otherwise provided herein the father be otherwise solely, legally and beneficially entitled to the exclusion of the mother, to all other property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders, including but not limited to:
(a)money deposited in any financial institutions in his name;
(b)shareholdings;
(c)insurance policies;
(d)motor vehicles;
(e)all household furniture and personal effects; and
(f)all superannuation interests held in his name.
The father shall do all acts and things necessary to indemnify the mother and keep her indemnified from and against any and all of the father’s liabilities, whether past, present or future.
The mother shall do all acts and things necessary to indemnify the father and keep him indemnified from and against any and all of the mother’s liabilities, whether past, present or future.
In the event of default of either or both of the parties doing all such things and executing all such documents as may be required to comply with these Orders, a Registrar of the Family Court of Australia Sydney Registry is authorised pursuant to s 106A of the Act to do all such acts and things and execute all such documents on behalf of either or both of the parties, in order to procure compliance with these orders.
Leave is granted to the parties to apply within 14 days, on giving at least 24 hours notice to the Court and each other in relation to the wording of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2062 of 2010
| Ms Rilak |
Applicant
And
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property settlement proceedings. The mother and father cohabited for nearly 15 months. They have one child, B (“B” or “the child”) who at the conclusion of the hearing, was five years of age. The parents separated in 2010 when the child was only two weeks old.
The key issues in the parenting proceedings arose from the mother’s belief that the father has sexually abused the child and the father’s contention, supported by the opinion of the single expert that the child is at grave risk of psychological harm in her mother’s care. In addition to a dispute about whether the child should continue to live primarily with the mother or with the father and whether the mother’s time should be interrupted for a short period and thereafter supervised at a contact centre, there are specific disputes about the child’s surname and as to the extent and manner of her immunisation.
Applications
For reasons that are referred to below, the hearing was conducted over three sessions, separated by some months. Over the course of the hearing there were significant changes in the parenting orders sought by the parties, particularly by the mother. By the conclusion of the hearing, the parties sought orders in terms of the minutes of orders that are annexed to these reasons[1]. In summary:
[1] See Annexures 1 – 3 at the end of this judgment.
The mother sought orders in terms of a minute of order handed up in court on 6 August 2014. She sought orders to the following effect:
·That the mother and father have equal shared parental responsibility for the child;
·That the child live with the mother;
·That the child spend time with the father every second weekend from 5.30 pm on Friday until 6.00 pm on Sunday;
·That the child be known as “B Rilak-Tsocas”;
·That a passport be organised for the child and the child be removed from the Airport Watch List;
·That the mother and father be permitted to travel internationally with the child for up to six weeks per year;
·That the child be immunised under the care of Dr AA in accordance with the modified vaccination protocol to include three doses of Infranrix IPV at two monthly intervals followed by the meningococcal vaccine; and
·That the father pay to the mother $250,000 and both parties be entitled to all other property in their possession or control.
The mother also included in her minute of orders an application for departure from child support assessments in respect of a period from 5 March 2010 to 31 December 2015 and an application pursuant to s 112 of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) for leave to seek a departure from assessments that are more than 18 months old. No adequate notice was provided to the father of those applications. In the circumstances it was unfair to allow the mother to introduce a new cause of action during the hearing. In any event, in order to have the Court entertain a departure application the mother may have needed to rely on s 116 of the Assessment Act which permits a Court hearing other proceedings between the payer and the payee, to hear a departure application notwithstanding that the internal and Social Security Appeals Tribunal (SSAT) (now to be heard in the Administrative Appeals Tribunal) reviews mandated in the legislation have not been completed. There were recent proceedings in the SSAT[2] but they appeared to relate to child support payable from 31 January 2014. Had that application been entertained, given the timing of the claim, in my view it could not have been in the interests of the payer and payee[3] to grant that leave. The evidence had closed and the parties had (understandably) not addressed in that evidence the necessary detail of their financial circumstances throughout the period covered by the application. To the extent that there was some evidence, given that the issue only arose after the close of the parents’ cases, they had no opportunity to test any relevant evidence by way of cross-examination or otherwise. On that basis I refused to grant leave for the mother to amend her claim to include child support departure.
[2] 2014/SC006127 – see exhibit 27.
[3] Section 116 of the Assessment Act.
The father sought orders in terms of a Minute of Order tendered in Court on 7 August 2015. In summary he sought:
·That the child live with the father;
·Sole parental responsibility for the child;
·That the child spend time with the mother once per week, supervised by Interrelate at the mother’s expense;
·That the child communicate with the mother by telephone/Skype each Tuesday and Thursday between 5.30 and 6.00 pm;
·That the mother be restrained from communicating with the child in any language other than English;
·That the father be at liberty to arrange for the child to be vaccinated at X Hospital in accordance with the recommendations of Dr Y;
·That the child attend upon a family therapist and the father follow the recommendations of the family therapist;
·That the mother be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed on the Airport Watchlist;
·That the father be at liberty to apply for a passport for the child;
·That the father be at liberty to travel overseas with the child and her name removed from the Airport Watchlist for this purpose;
·That the child’s name be changed to “B Tsocas”;
·That no orders be made in relation to property;
·That the mother’s application for spouse maintenance is dismissed (that relief was not pressed in the mother’s final orders sought);
·That the mother’s application for a departure from the administrative assessment of child support is dismissed; and
·That the mother pay the father’s costs of the proceedings.
The proposals of the Independent Children’s Lawyer (“ICL”) were set out in a document submitted during final submissions on 7 August 2015. In summary, the ICL sought:
·That the child live with the father and the father have sole parental responsibility for the child;
·That the father be at liberty to arrange for the child to be vaccinated at X Hospital in accordance with the recommendations of Dr Y;
·That the father shall advise the mother about any necessary parenting decision and consider the mother’s views in the decision he ultimately makes;
·That the child shall spend time with and communicate with the mother:
oAt Interrelate Suburb J, not less than weekly, at such times nominated by Interrelate with the parents to share Interrelate’s fees;
oBy way of telephone calls for one hour each Tuesday and Thursday, one of which shall be a Skype call.
·That the parents attend upon Ms RR, psychologist forthwith and follow all recommendations made by the therapist.
·That the father shall send the mother an email about the child’s health, general welfare and activities once a week.
Written Evidence
The applicant relied on:
·Notice of Risk filed 1 September 2011;
·Affidavit of Mr BB filed 16 January 2015;
·Affidavit of Ms DD filed 19 January 2015;
·Affidavit of Ms VV filed on 19 January 2015;
·Affidavit of NN[4] filed 19 January 2015;
[4] Surname not provided to the Court.
·Affidavit of Ms PP filed 19 January 2015;
·Affidavit of Professor CC filed 19 January 2015;
·Affidavit of Dr KK filed 20 January 2015.
·Affidavit of the mother filed 21 January 2015;
·Affidavit of the mother filed 1 April 2015;
·Affidavit of the mother filed 12 May 2015;
·Notice of Risk filed 12 May 2015;
·Affidavit of the mother filed 2 June 2015;
·Affidavit of the mother filed 26 June 2015;
·Affidavit of the mother filed 6 July 2015; and
·Affidavit of the mother filed 17 July 2015.
The respondent relied on:
·Further Amended Response of the father filed 12 December 2014;
·Affidavit of the father filed 12 December 2014;
·Affidavit of Ms Tsocas filed 12 December 2014
·Financial Statement of the father filed 12 December 2014;
·Affidavit of Ms H filed 12 December 2014;
·Affidavit of Ms TT filed 12 December 2014;
·Affidavit of Mr BB filed 16 January 2015;
·Affidavit of Ms Tsocas filed 18 May 2015;
·Affidavit of the father filed 19 May 2015;
·Affidavit of Ms H filed 19 May 2015;
·Affidavit of Mr GG filed 3 July 2015.
·Affidavit of the father filed 6 July 2015;
·Affidavit of Ms H filed 6 July 2015;
·Affidavit of the father filed 13 July 2015; and
·Affidavit of Ms H filed 13 July 2015.
Expert Evidence
The following single expert evidence was relied on in the parenting proceedings:
·Report of Dr C dated 28 May 2014; and
·Report of Dr Y dated 17 January 2015.
The following adversarial expert evidence was relied on by the mother:
·Affidavit of Professor CC filed 19 January 2015; and
·Affidavit of Dr KK filed 20 January 2015.
The Litigation
The child is five years old and for most of her life her parents have been litigating about her. The proceedings commenced in the Federal Magistrates Court (now the Federal Circuit Court) in 2010. They were later transferred to this court and the final hearing was conducted over 10 days in three phases, commencing in January 2015 and concluding in August 2015. The hearing was first listed over four days commencing on 27 January 2015 in relation to parenting and financial issues, including settlement of property. When the hearing commenced on 27 January 2015, the mother was represented by two solicitors (one in relation to immunisation only). The father was represented by solicitor and counsel and the ICL was represented by counsel. It quickly became apparent that a hearing on all issues could not be contained within four days and I indicated, without complaint on behalf of the parties, that the hearing in relation to financial issues would be split off to a later date. Even then it was necessary to sit for extended hours to attempt to complete the hearing, just as to parenting issues. On the last day of that hearing, 30 January 2015, I was indisposed and it was not possible to complete the hearing, even in respect of parenting issues. While I was unavailable, the matter was listed before another judge and in consultation with the parties and their lawyers, adjourned before me for the completion of the hearing on all issues, over three days commencing on 20 May 2015.
On the resumption of the hearing on 20 May 2015 the parents sought and were granted leave to re-open their cases because of allegations made by the mother in relation to events involving the child on and from 28 March 2015. The mother’s material included a Notice of Risk of Child Abuse supported by her affidavit alleging that the father had sexually abused the child on 28 March 2015. On 20 May 2015 the advocates agreed that in light of the new material, which included audio recordings and two audio visual recordings of Joint Investigation Response Team (“JIRT”) interviews with the child, the hearing could not be concluded in the time listed and they could not be confident, until Dr C, the single expert psychiatrist, had seen the new evidence, about how much further time would be needed. On 20 May 2015, the last of three experts in respect of an issue in relation to immunisation was cross-examined and consequent upon the re-opening of her case, the cross-examination of the mother resumed. Arrangements had been made for Dr C to be available on 21 May 2015 to read and view the updating and new material and to be cross-examined.
At about 10.40 am on 21 May 2015, I disclosed to the parties a matter of potential concern arising from an offer of employment recently made to and accepted by my legal associate from the firm of solicitors acting for the father.
At about 2.30 pm on 21 May 2015 the mother’s solicitor said that her instructions were to seek my recusal, that the hearing recommence before another judge at Wollongong and she foreshadowed that there would be a related application to restrain the father’s solicitors from continuing to act. I indicated that until those applications were formalised, I was inclined to continue to make use of the available time on 21 and 22 May 2015, including the valuable time of Dr C. I explained that if I did not recuse myself then the best use would have been made of the time and cost of taking that evidence and that if I did recuse myself, that time and cost may well be wasted but the costs had been incurred in any event. That course was agreed to by counsel for the father and the ICL and there was no immediate demur on behalf of the mother. Dr C was sworn in just before 3.00 pm and was examined on behalf of the ICL.
Just before 3.30 pm the mother’s solicitor commenced her cross-examination of Dr C and that continued until just before 5.00 pm. Dr C kindly indicated that she would return to complete her evidence the next day. Although I understood that the mother’s solicitor had completed her cross-examination, I invited her to take instructions overnight in case there was some further topic she might wish to pursue with the expert.
The following morning, at about 10.22 am, the solicitor for the mother advised that her instructions had been withdrawn and that the mother intended to continue without representation. The mother then said that she would press for my recusal immediately. The mother would not countenance the continuation of the evidence. I again sought to assure the mother that I could foresee no mischief in continuing to take Dr C’s evidence before dealing with her applications. At that time the father’s counsel advised the Court that there had been no contact between my legal associate and the records or files of his instructing solicitors; that the partners of the firm would meet early in the following week to determine the firm’s reaction to the presenting circumstances and that he anticipated that at least one of the matters they would discuss would be the delay or deferral of the commencement of the offer of employment to my legal associate. I gave the mother some time to consult with her solicitor.
When I returned to the Court at about 11.30 am the mother’s solicitor said that she had instructions to put two applications in a case before the Court and she was then instructed to withdraw. The first of the mother’s applications sought orders for my recusal and an injunction to restrain the father’s lawyers from continuing to act for him. The second application dealt with interim financial relief for the mother and other matters. The mother confirmed that only the first application was pressed before me immediately. The mother asked about hearing dates for the two applications. I told the mother that I would hear her first application in a case that day (22 May) but after the conclusion of the cross-examination of Dr C. I explained that I could not allocate a hearing date for the second application until the outcome of the first application was known.
I asked the mother if she had further questions for Dr C and she repeated that she was not comfortable about continuing the proceedings. She said she was aggrieved about the conduct of the father’s solicitors over time and in relation to my disclosure, notwithstanding that my legal associate’s employment had not commenced, was concerned about contact and the potential for communication between my legal associate and those solicitors. I warned the mother that if she left the courtroom she would lose the opportunity of any further cross-examination of the expert and that the hearing would continue in her absence. I reminded the mother that in addition to the final proceedings there was an interim application by the father seeking that the child be immediately removed from her care and placed with him and that the hearing of that application would likely proceed in her absence.
I then invited the father’s counsel to commence his cross-examination of Dr C. Thereupon the mother and her solicitor, Ms Coady, left the courtroom. Ms Coady returned to the back of the courtroom for the balance of the pre-lunch session. The mother was later called but at no time did she return to the courtroom that day, either to press her applications or to otherwise take part in the proceedings.
At the conclusion of the cross-examination of Dr C, the father’s counsel pressed his client’s application for the immediate removal of the child to the father’s care. The father pressed for orders to the effect of the orders contained in exhibit 9 albeit without an order for an updating report. The ICL supported the father’s application. In the course of submissions it was argued that the mother presented a flight risk for the child and that no protective orders had been made in that regard. I immediately made an interim order restraining the mother from causing or permitting her removal from Australia and requesting an entry on the watch list. It later transpired that there was already a watch list entry albeit only referring to the child by one name.
After hearing submissions from counsel for the ICL and the father and for reasons given at the time, I refused to order the immediate change of the child’s residence and adjourned the father’s application to 2 June 2015 before me. That was the first date convenient to the father and the ICL. I ordered that the mother attend at Court on 2 June 2015 and deliver the child to the registry on that morning, to abide further orders made that day.
On 2 June 2015 the mother attended, self represented and delivered the child to the registry as ordered. I heard and refused the mother’s applications for recusal and to restrain the father’s lawyers from continuing to act. I published reasons for those decisions on 5 June 2015. On 2 June 2015 the mother also sought a stay of the proceedings pending an appeal in respect of the recusal and restraint orders. There was no appeal on foot but on the condition that the mother filed her notice of appeal promptly, I heard the stay application and for reasons given that day, I refused to grant a stay. On 2 June 2015 a hearing commenced of competing applications for interim parenting orders. That hearing was adjourned to 5 June 2015 when it was completed. Although I refused the father’s application for a change of primary residence, I made orders including an order varying the interim parenting arrangements for the child to provide that her supervised time with the father be increased to each weekend from Friday afternoon until Monday morning.
On 12 June 2015 I published reasons for the interim parenting orders of 5 June 2015.
The mother appealed against the Orders of 2 June 2015 dismissing her applications for recusal and to restrain the father’s solicitors from acting. The mother appealed against the interim parenting Orders of 5 June 2015. I understand that during the proceedings before the Full Court the mother was invited to argue her appeal against both sets of orders but she declined to argue her interim parenting order appeal. The mother withdrew her appeal in relation to the father’s lawyers but her appeal in relation to recusal was heard on 22 June 2015 and dismissed on 24 June 2015.
On 22 June 2015 the mother applied to me for a stay of the interim parenting orders made on 5 June 2015. On 6 July 2015 I heard that application together with the mother’s application for a payment to her of $50,000. For reasons given that day, both applications were refused.
On 6 July 2015 the mother also sought permission to recall Dr C for further cross-examination. I ordered that in the event that the mother secured the expert’s fees by depositing $1,980 into the trust account of the ICL by a certain date, the ICL was to facilitate the attendance of Dr C during the resumed hearing in August.
I understand that the mother made an application for expedition of her appeal in relation to the interim orders of 5 June 2015 and on 21 July 2015, her application was refused. No date was fixed for the hearing of that appeal.
The substantive hearing was listed to be completed before me on 4 - 7 August 2015. On 31 July 2015 the Law Society of NSW commenced acting for the mother under a pro bono scheme.
The final trial resumed on 4 August 2015. Ms Saw of counsel appeared for the mother. At the commencement of the day she announced a significant change in the mother’s position with respect to the parenting matter. Although there was no amended application or written minute of orders, Ms Saw announced that the mother now sought that the child spend equal time with the parents. I pointed out that such an order made no sense of the mother’s evidence. The matter was stood down to enable Ms Saw to provide a minute of orders sought by the mother together with a proof of her updating evidence in chief. However, after taking instructions from the mother, her counsel made an application to adjourn the hearing for approximately six weeks. Among other things, the mother agreed through her counsel to meet the costs of the other parties thrown away by the adjournment. The adjournment application was strongly opposed by the father and the ICL and for reasons given later that day, the adjournment application was refused. Thereupon the trial resumed with updating evidence in chief from the mother, albeit without the assistance of the requested proof of evidence. The mother was asked about the orders she sought and rather than equal time, she explained that among other orders, she sought orders for equal shared parental responsibility, that the child continue to live primarily with her and spend each alternate weekend with the father, unsupervised.
The mother’s counsel said that the mother wished to resume her cross-examination of Dr C. The mother had not complied with the order of 6 July 2015 in regard to the expert’s fees but the ICL made enquiries and ascertained that Dr C could attend to give further evidence. After further discussion it transpired that the mother could not meet or secure Dr C’s fees for such an appearance and Dr C was not recalled.
Application To Remove The ICL
On 5 August 2015 the mother made an application to remove the ICL on the grounds that he was not independent. After hearing from the mother’s counsel I refused that application and without complaint from the parties, indicated that I would incorporate my reasons for doing so in the substantive judgment. These are those reasons.
At one of the earlier episodes of the hearing the mother had expressed a concern about the close contact and communication between the lawyers for the father and those representing the child. To her observation that level of contact and communication had not been offered by the ICL and his counsel to the mother’s solicitor. In addition she noted that on occasions the counsel for the ICL adopted the submissions of counsel for the father and vice versa. Despite commenting on that matter, she had not earlier sought the removal of the ICL. The mother’s application on 5 August 2015 seemed to arise immediately after she observed one of the father’s lawyers speak to the ICL’s counsel during her cross-examination of the mother. The mother’s counsel said that the basis for the mother’s application for the removal of the ICL was the mother’s concerns that there had been a lack of impartiality on the part of the ICL. She said that the mother had observed what she thought was the father’s counsel directing counsel for the ICL in terms of what questions she should ask the mother. She also expressed concern that the father’s legal team and the ICL were at the Court for a few hours before the hearing commenced and were discussing the matter with one another.
The circumstances did not justify removing the ICL. I cannot avoid saying that the mother is hypersensitive and something of a conspiracy theorist. For example, the only persons involved in the case that the mother did not seek to have removed from the proceedings, were the Court’s administrative staff. To labour the point, the mother withdrew her instructions from her own solicitor, Ms Coady and sought the removal of the father’s solicitors, his counsel, the single expert forensic psychiatrist and of course, the judge.
Coming back to the particular issue, in discharging their duties, legal practitioners need to communicate with each other. They have a duty to their client, in respect of litigation, they have an overarching obligation to the Court and importantly, they have ethical obligations to each other. That means that counsel whether for parties in the same interest or opposed to each other, are obliged to assist each other to ensure that the Court is not misled and that the proceedings are efficiently managed. That means assisting each other with practical matters such as the identification of particular references in the evidence before the Court, agreed facts etc. It is not possible for me to comment on any particular communication between the ICL or his counsel and those representing the father because no evidence was lead by the mother about the detail of any such communication. The mother made a bare assertion that the father’s counsel suggested to the ICL’s counsel a question that might be asked of the mother. There is no evidence to support that contention. For example, I was not told what the question was.
In the case of an ICL, it is inevitable that on particular issues, the orders proposed will sometimes coincide with the orders proposed on behalf of one of the parents. Being independent does not necessitate the ICL pressing for a different order from those proposed by the parents, on each and every parenting issue. For those reasons, the mother’s application failed.
I should say that I detected nothing in the conduct or presentation of the lawyers for the child, nor for that matter, of the solicitors and counsel for the parents, that warranted serious criticism. Quite the contrary. In a very difficult case I was greatly assisted by the advocates and through them, by the work of the instructing attorneys.
On 7 August 2015, the oral submissions concluded. As there was no application before the Court for a final order requiring supervision of the father’s time with the child, the interim order was amended removing that requirement. An order was made on the mother’s application, for written submissions about the issue of immunisation and otherwise, judgment was reserved.
The mother lodged her written submissions about immunisation on 18 August 2015, written submissions on behalf of the father were filed on 27 August 2015 but no further submissions were made on behalf of the ICL.
Short History
The father was born in 1957. As at the last date of the hearing he was 57 years of age. The mother was born in 1967. As at the last date of the hearing she was 48 years of age. The parents met in August 2008, starting living together on 14 November 2008 and were married in late 2008. The child B is the only child of the parents’ relationship and was born in 2010. The parents separated on a final basis on 9 February 2010.
Credibility
In what are highly charged and bitterly fought proceedings, many of the key issues do not rely solely on the uncorroborated testimony of the parents. For example, of the parties, only the mother is in a position to give evidence about disclosures made to her by the child. The concerns expressed by the father, the ICL and Dr C leave open that either the disclosures were not made at all or were prompted and suggested by the mother. The issues about the parenting capacity of the mother and father do not solely or substantially rely on their testimony.
However, there are some matters in respect of which credit findings are relevant. For example, the mother deposed that the father admitted to her that he was violent to P. The father denied those conversations and any such violence. Insofar as credit is relevant:
The mother was a poor witness. In that regard, however, it is important to acknowledge that English is not the mother’s first language. Indeed, in late May 2015, for the first time, the mother requested that the Court make arrangements for an interpreter in her first language to assist her. It was not possible to locate such an interpreter for 2 June 2015 and I understand that there were similar problems before the Full Court.
Much of the trial was conducted with the mother not having an interpreter (nor indicating that she required one). The mother was assisted by an interpreter for the final phase of the trial (August 2015) and to my observation, although sporadically, she made some use of the interpreter. Although her spoken English is fluent and at times idiomatic, the mother’s choice of words was not always appropriate.
At times the mother was argumentative and prone to giving oblique answers to questions asked in cross-examination. Despite being warned on a number of occasions the mother persisted in not answering the questions that were asked. She was prone to answering “yes but…” to questions where her ultimate answer was “no”, and “no but…” where her ultimate answer was “yes”. More importantly, the mother gave inconsistent answers to questions. For example she was asked why she did not inform the father about something. Her first answer was that she could not communicate with him. She then said, in rapid succession, words to the effect that he would not be interested; that he was not entitled to know because he did not provide adequate financial support to the child; and finally, because when the mother did communicate with him his responses were harassing and abusive. To my observation the mother persisted in seeking to address what she understood to be the implication of questions rather than the question asked.
The second thing to say is that although she was a poor witness it does not necessarily follow that the mother set out to mislead the Court. The parents’ cohabitation spanned less than 15 months and they separated more than five years ago. It is understandable that their recollections of events could honestly differ. Memory is neither infallible nor immutable and two well motivated witnesses can honestly have different recollections of the same event. Those recollections can be changed by the processes of storing and retrieving them. Here the two main witnesses are not well motivated towards each other. To my observation the parents harbour considerable hostility for and distrust of each other. Their antipathy for each other could have affected their recollection of particular events.
Subject to those latter observations, the father was a good witness. By that I mean that his testimony was clear and consistent and he was not successfully challenged on significant issues.
Ms TT was the first wife of the father and she was a good witness. Under cross-examination she maintained the thrust of her written evidence and was not successfully challenged on any point.
Ms Tsocas is the father’s mother and she was a good witness. She gave her evidence through a Greek interpreter and was not successfully challenged on any issue.
Ms H was employed by the father and she was a good witness. She did not resile from her written testimony and was not successfully challenged.
The professionals who gave evidence in respect of the immunisation issue appeared as experts and their credibility was not challenged. That also applied to Dr C.
The Parenting Proceedings
Background Facts
P Tsocas (“P”), the father’s child from his first marriage, was born in 1999. As at the date of the final hearing he was 15 years old.
On 14 November 2000 the father and his first wife, Ms TT, separated. They divorced on 3 April 2002.
On 30 August 2008 the mother commenced working as a consultant for the father’s business, XYZ Services Pty Limited (“XYZ”). The father is the sole director and shareholder of XYZ which is engaged in preparing financial documents for clients.
On 14 November 2008 the mother and father commenced living together. They married in late 2008.
The parents separated for three weeks on 3 January 2009, reconciling in late January 2009.
In December 2009 the mother ceased work with XYZ pending the child’s birth.
The maternal grandmother travelled from Europe to Australia in January 2010 to assist with the birth of the child.
The child was born in early 2010. The surname “XXX” was invented by the mother as a combination of the parents’ surnames.
The parties separated for the last time on 9 February 2010.
The father spent half an hour with the child on 16 February 2010. This was the first time he saw her after the parents separated.
On 18 February 2010 the father called Relationships Australia in an attempt to organise mediation for him and the mother.
On 7 April 2010 the mother filed an Initiating Application in the Federal Magistrates Court, commencing property settlement proceedings.
On 7 July 2010 the parents attended for mediation with Relationships Australia. The parents agreed that the father would spend one hour a week with the child commencing 11 July 2010.
On 11 July 2010 the father and the paternal grandmother spent time with the child. The father did not see the child again until September 2011.
The mother wrote to the father’s former solicitor on 26 August 2010 stating that she was considering living outside of the Sydney metropolitan area. On 22 October 2010 the mother contacted Housing NSW seeking accommodation. She was put on the wait list. The mother commenced renting in the Wollongong area at some point after October 2010, paying $371.00 per week.
The mother sought parenting orders in an Amended Initiating Application filed 1 September 2011. She sought that the father spend two hours per fortnight with the child, supervised by a contact centre.
On 5 September 2011, Federal Magistrate Sexton (as her Honour then was) ordered that the child spend time with the father in a park for two hours a week. The orders allowed for unsupervised time but permitted the mother to remain in the vicinity. The father said that from 10 September 2011 until 10 February 2013, the child spent time with him on all but six Saturday mornings.
The parents were divorced on 18 October 2011.
On 6 December 2011 the proceedings were transferred to this court.
On 3 February 2012 the child commenced spending supervised time with the father for one hour every alternate Friday, supervised by Suburb J Interrelate. This time was in addition to the two hours spent with the father each Saturday at the park. The child continued to spend time with the father until 10 February 2013.
In 2013 the child commenced attending a Montessori school twice a week for a few hours.
On 11 February 2013, Justice Rees ordered that the child spend unsupervised time with the father every Saturday from 9.30 am to 3.30 pm. The father deposed that from the date of the orders until December 2014 there were 18 Saturdays on which he did not spend time with the child.
In March 2015 the mother told the father that either he contribute $50 per week towards her petrol or that he collect the child from Town E. The father rejected that proposal but proposed that he collect the child from school each Friday and return her to school each Monday. The mother gave notice that 28 March 2015 would be the last visit supervised at the Suburb J centre.
The mother says that on 28 March 2015 the child disclosed that her father had sexually assaulted her. On 2 April 2015 the mother made a notification to the Department of Family and Community Services (“FACS”).
After a contested interim hearing, on 5 June 2015, orders were made including:
…
6.Until further order the current parenting orders, including the orders of 11 February 2013 are varied to provide that [the child] born on … 2010 spend time with the father from 3.00 pm on Friday 19 June 2015 and each Friday thereafter until the commencement of pre-school on the following Monday.
…
13.Until further order the mother is restrained from questioning the child or discussing with her any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father.
14.Until further order the mother is restrained from discussing any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father in the presence or hearing of the child and she is restrained from permitting any other person or persons to do so or to question the child or discuss any such allegation with her, other than officers of the Department of Family and Community Services or of the NSW Police.
…
The child did not spend any time with her father or P from 28 March 2015 until 19 June 2015 when the interim orders of 5 June 2015 commenced.
On 6 July 2015 the mother took the child to hospital. The mother asked the hospital to do a vaginal swab on the child and the doctor refused.
The father attended E Police Station with Ms H on 10 July 2015 in order to collect the child pursuant to the orders of 5 June 2015. The mother and the child attended the police station; however the mother did not hand the child over to the father.
The child spent time with the father from 17 – 19 July 2015.
On 7 August 2015, the final day of the trial, as there was no application before the Court for a final order requiring supervision of the father’s time with the child, the order of 5 June 2015 was amended by removing that requirement.
The Expert Evidence
Single Experts
Dr C, is a Child Adult and Family Psychiatrist. Her qualifications include the following: MBBS (1977); Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (1987) and Certificate in Child and Family Psychiatry (1988).
Dr C has had extensive clinical experience since 1987. Dr C currently works in private practice in supportive and exploratory psychotherapy, child and family psychiatry.
Dr C prepared a report in this matter dated 28 May 2014.
Dr Y is a Specialist General Physician. His present roles include Staff Specialist in General Medicine at X Hospital; Senior Research Fellow at X Hospital; and Senior Lecturer in the Discipline of Paediatrics and Child Health at a University. His qualifications include the following: Bachelor degrees in Science (Medicine), Medicine and Surgery with second class honours (1988 – 1993); Masters degree in Public Health (2004) and PhD (2009).
Dr Y’s report is dated 17 January 2015.
Other Experts
Professor CC and Dr KK gave evidence in the mother’s case.
Professor Shaw is a Neuroscientist who specialises in neurological disease. He is currently employed and has been since 1988 as a Professor of Opthalmology and Visual Sciences in the Faculty of Medicine at an overseas university. Professor CC obtained a BSc degree in Biology in 1971, a MSc degree in Physiology (1974) and Doctorate in Neurology (1979). For over 40 years he has engaged in and published research primarily on neuroplasticity and neuropathology. Professor CC is not qualified as a medical doctor. In the last ten years Professor CC has researched the neurobiological and physiological impact vaccines can have.
Professor CC’s report is dated 15 January 2015.
Dr KK has been a licensed doctor of medicine since 1986. She completed a paediatric residency and trained for a year in physical medicine and rehabilitation at the Universities of Illinois and New York. After residency she worked as Director of the Paediatric Emergency Room at a Hospital. In 2012 Dr KK was awarded a Masters Degree in Public Health/Disaster Medical Management with a focus on vaccines and vaccines as a cause for public health disaster. Dr KK currently practices as a medical physician and uses homeopathy if necessary.
Dr KK’s report is dated 17 January 2014.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for the parents to have equal time and if that is not ordered, for each parent to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of these reasons, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements and any ancillary issues; and
g.make orders.
The Parties’ Proposals
The proceedings have seen a dramatic change in the orders sought by the mother. The mother initially proposed that she retain sole parental responsibility for the child and that the child live with her and spend little time with the father. She also sought permission to take the child to Country A in Europe and nearby countries for five months in 2015 and each alternate year thereafter. She opposed the child being immunised.
However, on 4 August 2015, when the final hearing resumed for its seventh day, the mother significantly changed her position. As is referred to above, the orders ultimately sought by the mother include an order that she and the father have equal shared parental responsibility and that the father spend every second weekend, unsupervised, with the child, from Friday afternoon until Sunday at 6.00 pm. She sought an order that she be permitted to arrange for the child to receive two vaccines and that they be administered by Dr AA.
The father proposed that he have sole parental responsibility for the child, that she live mainly with him and have supervised time with the mother. He proposed that he (but not the mother) be permitted to take the child overseas. He also proposed that the child be immunised at X Hospital and in accordance with the advice of Dr Y.
The ICL sought similar orders to those sought by the father.
In highly contested proceedings, there was ultimately no dispute about the child spending some time with each of the parents; that her time with her father would be unsupervised and overnight; and that the father be permitted to take her overseas. It is agreed that the child should be immunised, at least to some extent. It is agreed that her surname should be changed but the particular name is not agreed.
The range of dispute on the key areas seems to be:
a.Whether the child’s surname should be changed to Tsocas or Rilak-Tsocas.
b.What immunisation the child should receive and who should administer it.
c.Otherwise, whether the parents should have equal shared parental responsibility for all long-term decisions or whether the father should have sole parental responsibility for those decisions.
d.Whether the child should live primarily with the mother or with the father.
e.If the child is to primarily live with the father, what time the child should spend with the mother and whether that time should be supervised.
f.If the child is to primarily live with the mother, what time the child should spend with the father.
g.Whether the mother should be permitted to take the child out of Australia.
CHILD SUPPORT
That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave be granted to depart from assessments of child support payable to the mother by the father for the child for the period from 5 March 2016 to 31 December 2015.
That pursuant to section 116 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable for the child [B] born … 2010 in that for the period from 5 March 2010 to 31 December 2015 [Mr Tsocas’] adjusted taxable income be fixed at an annual rate of $61 727.
PROPERTY ORDERS
That within 28 days the husband pay to the mother the sum of $250 000.
That subject to any order to the contrary, the mother be otherwise solely, legally and beneficially entitled to the exclusion of the husband, to all other property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these orders, including but not limited to:
31.1.Money deposited in any financial institutions in her name;
31.2.Shareholdings;
31.3.Insurance policies;
31.4.Motor vehicles;
31.5.All household furniture and personal effects; and
31.6.All superannuation interests held in her name.
That subject to any order to the contrary, the husband be otherwise solely, legally and beneficially entitled to the exclusion of the wife, to all other property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders, including but not limited to:
32.1.Money deposited in any financial institutions in his name;
32.2.Shareholdings;
32.3.Insurance policies;
32.4.Motor vehicles;
32.5.All household furniture and personal effects; and
32.6.All superannuation interests held in his name.
That subject to any other order to the contrary and as at from the date of these orders the husband and wife shall, each mutually release the other from all debts, claims and loans owing from one to the other.
That except as elsewhere provided in these orders, from the date of these orders, the husband do all acts and things necessary to indemnify, and keep indemnified, the wife from and against any and all of the husband’s liabilities, whether past, present or future.
That except as elsewhere provided in these orders, from the date of these orders, the wife do all acts and things necessary to indemnify, and keep indemnified, the husband from and against any and all of the wife’s liabilities, whether past, present or future.
In the event of default of either or both of the parties doing all such things and executing all such documents as may be required to comply with these orders, a Registrar of the Family Court of Australia Sydney Registry or such other person as may be appointed by the Court and authorised pursuant to Section 106A of the Family Law Act 1975, do all such acts and things and execute all such documents on behalf of either or both of the parties, and in the event that either party procure compliance with these orders by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents shall be indemnified by the other party for his or her costs and expenses incurred in obtaining such compliance.
Annexure 2 – Orders sought by the Father
PARENTING
That all previous Orders be discharged.
Live with
That the child, [B XXX] (also known as [B Tsocas] and [B Rilak]) born … 2010 (“the child”) live with the Respondent Father, [Mr Tsocas] (“the Father”).
That for the purposes of implementation of these orders, the mother shall deliver the child to the child minding services of the Family Court, Sydney Registry on the day that judgment is to be delivered.
That in the event the Mother does not deliver the child to the child minding section of the Family Court, Sydney Registry on the date of these Orders, pursuant to section 67U of the Family Law Act:
4.1Any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of the State or Territory; or
4.2Any person holding or acting in the office of the Child Recovery Officer;
be authorised and directed, with such assistance as he or she requires or they require, and if necessary, by force:-
4.3to stop and search any vehicle, vessel or aircraft for the purposes of locating the child;
4.4to enter and search any premises or place for the purposes of locating the child;
4.5to recover the said child; and
4.6to deliver the said child to the Father;
4.7to arrest, without warrant the Mother in the event that the Mother removes or takes possessions of the said child except in accordance with these Orders.
Parental Responsibility
That the Father have sole parental responsibility for the child on the condition that before making any decision in relation to any major long-term issue concerning the child, the father shall:
5.1advise the mother in writing of the decision intended to be made;
5.2seek the mother’s written response in relation to it;
5.3consider, by reference to the child’s best interests, any response by the mother; and
5.4advise the mother in writing as soon as reasonably practicable of his decision.
Spend time with
That, subject to Order 7 herein, the child spend time with [Ms Rilak] (“the Mother”) at such times and on such dates as may be arranged with and supervised by Interrelate.
That the Mother’s time with the child pursuant to Order 6 herein:
7.1.commence not before fourteen (14) days after the child commences living with the Father;
7.2.occur on a Saturday or Sunday, not more than once per week; and
7.3.occur at the Mother’s expense; and
7.4.is suspended in the event the Father elects to take the child outside the Commonwealth of Australia pursuant to order 28.
That for the purpose of Order 6 above, each party shall:
8.1.contact Interrelate within 7 days and arrange an appointment for an intake assessment;
8.2.attend the assessment;
8.3.comply with all reasonable rules of Interrelate; and
8.4.comply with all reasonable requests or directions of the staff of Interrelate.
Makeup time
In the event that the child’s time with the Mother does not occur because of illness on the child’s part or because of some circumstance other than the unavailability of the Mother, then the Father is to:
9.1.provide a medical certificate where applicable; and
9.2.arrange makeup time for the child with the Mother as close to the scheduled period as is practicable.
Communication
That [the child] communicate with the Mother by telephone and/or Skype each Tuesday and Thursday between 5.30pm to 6.00pm, with the Father to initiate the telephone call or Skype call to the Mother’s telephone, and the Father be at liberty to conclude the telephone call or Skype call in the event that he is of the opinion it is not in [the child’s] best interests for the call to continue.
Restraints
The Mother be restrained from approaching:
a)The child, except in accordance with these Orders;
b)the Respondent Father;
c)[P Tsocas];
d)[Ms Tsocas];
e)[Ms H];
f)The residence of the Father and [P], namely [EE] Street, [Suburb K];
g)The residence of the paternal grandmother, [Ms Tsocas], namely …;
h)The residence of [Ms H], namely …, in the State of New South Wales or
i)Any pre-school or school that the child might attend from time to time, or any place where the child participates in extra curricular activities.
The Mother be restrained from communicating with the child in any language other than English.
The Mother be restrained from permitting the child to speak with any other person by way of electronic communication without the father’s written consent.
That each parent shall be and hereby is restrained from denigrating the other parent or any member of the other parent’s family and/ or discussing these Court proceedings in the presence or hearing of the child, and each parent shall be restrained from causing, allowing or permitting any other person to do so in the presence and/ or hearing of the child.
That each parent shall be and hereby are restrained from discussing these Court proceedings with [the child] or in the presence and/or hearing of [the child].
That each parent shall be and hereby are restrained from showing [the child] any documents associated with these proceedings.
That each parent shall be and hereby are restrained from physically disciplining [the child].
Exchange of Information
That the parents keep each other informed of their respective residential addresses, email addresses, and contact telephone numbers and notify each other of any proposed change of address 28 days prior to any change and any change to their telephone numbers or email address within 24 hours of any change.
That the parties shall do all acts and execute all documents necessary to provide all authorities and to give all necessary consents to ensure that the Principal and staff of each of [the child’s] school or pre-school, together with [the child’s] treating medical professionals, are directed and authorised to communicate with and provide information and copies of documents directly to each parent upon each parties’ request, at their own cost.
Vaccination
That the Father be at liberty to arrange for [the child] to be vaccinated at [X] Hospital in accordance with the recommendations of the court-appointed single expert Dr [Y].
Family Therapy
That forthwith the Father do all acts and things and sign all documents necessary to cause the child to attend upon a family therapist as soon as can be arranged, and the Father is to follow the recommendations of the family therapist as directed including attending therapy sessions if directed and in the event the therapist recommends [P] also attend therapy sessions, the Father shall use his best endeavours to ensure [P] is in attendance.
International Travel
That the Mother be restrained from removing and/or causing or allowing [B XXX] (aka [B Tsocas] or [B Rilak]) born … 2010, to be removed from the Commonwealth of Australia.
That the Australian Federal Police place the name of [the child] on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain [the child] on the Watch List until … 2028, save that the Father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order 28 hereof.
That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain the Mother and/or her agents from removing or attempting to remove [the child] from the Commonwealth of Australia.
That the Court directs that the Father forthwith serve a sealed copy of this Order on the Australian Federal Police within 14 days of the date of these Orders.
That the Respondent Father be at liberty to apply for a passport and or renewal of a passport for [the child] without first obtaining the consent of the child’s Mother.
That the Father retain in his possession [the child’s] passport for safe keeping.
That, pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), the Father be at liberty to travel overseas with [B XXX] (aka [B Tsocas]) born … 2010.
That, in the event that the Father intends to travel overseas with the child, he will provide written notification to the Mother of this intention to travel 28 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.
That, if the child would have otherwise spent time with the Mother during the period when the child is overseas with the Father, upon the child’s return to Australia the Father will nominate a day or days on which the missed time with the Mother will be made up. The Father will appoint a day or days for such make-up time not later than three months after the child’s return to Australia, unless the parties otherwise agree.
That at times when the Father elects to travel outside of the Commonwealth of Australia with [the child] pursuant to Order 28 herein. [The child’s] name is to be removed for the Airport Watchlist for the period of the Father’s travel with [the child] outside of the Commonwealth of Australia and placed back on the Airport Watchlist upon his return with [the child].
That without requiring the permission and/or consent and/or signature of the Mother, the Father is authorised to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “[B XXX]” be now registered as “[B Tsocas]”.
Pursuant section 28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in order 32 herein.
The Court directs that the Respondent Father forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
That, pursuant to section 68Q of the Family Law Act/975, the Court declares that:
a)These Orders are inconsistent with the Interim Apprehended Domestic Violence Order made by the Local Court of New South … on 18 April 2015;
b)The whole of the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales … on 18 April 2015 is invalid.
PROPERTY
That the Court declares, in all the circumstances, it is not just and equitable to make any order altering the interests of the parties in any property.
Spousal Maintenance
That the Wife’s application for lump sum spouse maintenance be and hereby is dismissed.
That the Wife’s application for periodic spouse maintenance be and hereby is dismissed.
Child Support Departure
That the Wife’s application for a departure from the administrative assessment of child support be and hereby is dismissed.
That the Wife’s application for lump sum child support be and hereby is dismissed.
Costs
That the Wife pay the Father’s costs of, and incidental to, these proceedings.
Annexure 3 – Orders sought by the ICL
That all previous orders with respect to [B XXX] born … 2010 (‘the child’) be and are hereby discharged.
[The child] shall live with the Father.
The father shall have sole parental responsibility for long-term decisions about [the child] (‘parenting decisions’).
The father shall be at liberty to arrange for [the child] to be vaccinated at [X] Hospital in accordance with the recommendations of the court- appointed single expert Dr [Y].
The Father shall advise the mother in a timely manner about any necessary parenting decision, invite the mother’s views about that decision, consider such views as the mother may express, and advise the mother of the decision he ultimately makes.
Until otherwise determined by the father in exercising parental responsibility in this regard, [the child] shall spend time and communicate with the Mother as follows:
(a)at Interrelate [Suburb J], not less than weekly, on such days and at such times as may be nominated by Interrelate, the parents to equally share Interrelate’s fees;
(b)By way of telephone calls between 5:30pm and 6:30pm each Tuesday and Thursday, the Father to initiate the calls,at least one of which in each week shall be a Skype call.
The parents shall forthwith make appointments to attend upon [Ms RR], psychologist, telephone number (02) …, (‘the therapist’) for therapeutic counselling.
The father shall provide to the therapist a copy of the orders of the Court and Reasons for those Orders, together with a copy of the report of Dr [C] dated 28 May 2014.
The parents shall attend all appointments made by the therapist and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for [the child].
The parents shall share equally the fees of any professionals engaged to assist them and [the child] pursuant to these orders.
The father shall keep the mother informed as to any school enrolment he makes for [the child] and shall do nothing to prevent the mother from obtaining information about [the child’s] progress directly from [the child’s] school.
The father shall advise the mother immediately if [the child] suffers illness or injury requiring hospital admission.
Not less than once each week the father shall send to the mother an email about [the child’s] health and general welfare and activities.
The parents shall maintain courtesy and civility in all communications with each other and shall not make comments of an insulting or derogatory nature about each other in [the child’s] presence or hearing.
Each parent shall pay to Legal Aid NSW one half of the costs of independent representation for [the child] in accordance with the relevant legal aid scale, such payments to be made within six months of receipt of a memorandum of fees from the Independent Children’s Lawyer, or otherwise by agreement with Legal Aid, NSW.
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