Ulbek and Ulbek

[2018] FamCA 563

FAMILY COURT OF AUSTRALIA

ULBEK & ULBEK [2018] FamCA 563

FAMILY LAW – CHILDREN – Recovery Order – Where the child suffers from autism spectrum disorder – Where the child has been retained by the father despite interim orders for the child to live with the mother – Where the child is at risk of absconding – Where orders are made for the father to return the child to the mother.

APPLICANT: Mr Ulbek

RESPONDENT: Ms Ulbek

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: WOC 728 of 2017

DATE DELIVERED:	27 July 2018
Orders made 26 and 27 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 26 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Scarlett

SOLICITOR FOR THE APPLICANT: Dribbus Kovacevic Lawyers

SOLICITOR FOR THE RESPONDENT: Rossi Simicic Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

ORDERS MADE 26 JULY 2018:

1. That not later than 7.00 pm on 26 July 2018 the father deliver the child X born … 2009 to the care of the mother.

2. That this matter be relisted before me without further notice at 11.00 am on 27 July 2018 in the event that the child is not delivered to mother in accordance with Order 1 above.

IT IS FURTHER NOTED, ON 27 JULY 2018:

1. That the part-heard interim parenting proceedings have been listed to continue before Senior Registrar Campbell on 20 September 2018. The father’s Application in a Case filed 23 July 2018 will be consolidated into those proceedings.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 728 of 2017

Mr Ulbek

Applicant

And

Ms Ulbek

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before the Court are competing applications relating to the residence of a child X (the child) who was born in 2009. The child has two older sisters, Y aged 12 and Z aged 11.

2. The father, Mr Ulbek, filed an Application in a Case on 23 July 2018 seeking orders that the child and his two older sisters live with him.

3. The mother, Ms Ulbek, filed an Application in a Case on 24 July 2018 seeking the issue of a recovery order to return the child to her care.

4. Both of those applications were listed before me on 26 July 2018. The father sought to proceed only in relation to the child.

5. Some brief background is necessary.

6. It is an agree fact that the child, who is nine years old, has been diagnosed with an Autism Spectrum Disorder.

7. Z has also been diagnosed with an Autism Spectrum Disorder although her disability is not as profound as that of the child.

8. One aspect of the child’s illness is that he has a propensity to run away. Such is the nature of the child’s behaviour that his school has put in place a risk assessment plan. The child has very limited speech.

9. The father deposed that the child has run away from school on three or four occasions.

10. The mother deposed to conversations with the paternal grandmother at a family picnic, before separation and in the presence of the father, in which the paternal grandmother advised the mother to tie the child up so he could not run away. She stated:

    … [the paternal grandmother] said “When I would babysit my grandchildren to stop them from running I would tie them up in the front yard while I did gardening so they wouldn’t take off. You should try this with [the child]”. [The paternal grandmother] then got a rope used as a skipping rope and tug of war, and started to tie the child up, [the father] then took over and finished tying the rope around him and walked him like the child was on a leash …

11. The mother also deposed to an occasion in 2014 when she was told by the father that the child had run away whilst in the father’s care and another occasion in 2016 when the child ran away from a family event where about 25 family members were in attendance.

12. I am conscious that this evidence has not been tested and may be disputed but I cannot assume that the child’s running away is a phenomenon which occurs only in the mother’s care.

13. The mother filed an application seeking, inter alia, parenting orders, on 6 July 2017. Those proceedings have not yet been heard although a number of interim applications have been heard and determined.

14. On 6 December 2017, Justice Le Poer Trench made interim orders that the child live with his mother and his two sisters and that the father have contact with the child in the presence of named supervisors. His Honour noted in the orders that the reason for supervision was to ensure that the children were not spoken to by the father in a raised voice; that they were not hit, smacked or chastised; that the father did not speak of the mother in a derogatory manner and that the children were not exposed to danger in the father’s care. His Honour also made orders for the appointment of an Independent Children’s Lawyer (“ICL”) for the children.

15. On 12 January 2018 there was an incident when the mother was called by Y to collect her from the father’s home. The paternal grandmother was supervising the contact. The mother deposed that when she arrived to the father’s home, he answered the door with Y in a headlock. The paternal grandmother threw shoes at the mother’s car, swore at her, and threatened to kill her. In the presence of a police officer and Y, the grandmother tackled the mother and pulled her hair, forcing her to the ground.

16. A final ADVO was made against the paternal grandmother for the protection of the mother and the paternal grandmother later pleaded guilty to common assault.

17. I am conscious that this version of events may be disputed but it is a matter of great concern that all three children may have been exposed to family violence in the father’s household in circumstances such as those that the supervision orders are specifically framed to prevent.

18. It is not in dispute that the father has not spent time with the child in accordance with those orders since 4 March 2018.

19. On 13 April 2018, the interim parenting proceedings commenced before Senior Registrar Campbell. Those proceedings were adjourned, part heard, to 21 May 2018 because, in the course of the hearing, it became apparent that the father had consulted a psychologist and obtained a report from that psychologist which had not been disclosed.

20. On 21 May 2018, the matter was adjourned. The parties agreed to appoint Dr B as a single expert to prepare a report for the purpose of the proceedings.

21. The child ran away on 11 June 2018. The circumstances in which he came into his father’s care are not explained in the material before me but it is agreed that, after the child came into the father’s care, the father withheld the child from school.

22. The mother made an application for the child to be returned and that matter was listed before Justice Loughnan on 29 June 2018. His Honour made orders for the child to be returned to the care of his mother.

23. There was no contact between the child and the father from 29 June 2018 until 13 July 2018.

24. On 13 July 2018, the child ran away from the mother’s home. On that day, he was not in the care of the mother but was being cared for by a respite carer, Ms C. She is a professional care worker who has worked with the child for a number of years and is well known to him. The mother needed to attend a medical appointment.

25. Ms C deposed that she went to the bathroom and heard a loud noise. She rushed out and saw the child was not in his room. She saw the child running down the driveway, grabbed her keys and ran after him, calling to him to come back. Ms C followed the child in her car, whilst calling the mother who was on her way home. They both drove around looking for the child. The mother notified the police that the child was missing. After a short time the mother was told by police that the child had been located and was with his father.

26. The father deposed that, on 13 July 2018, he was contacted by a neighbour of the mother who told him that the child was on D Street were two women had found him. The father took the child to his home.

27. The father sent a text message to the mother stating, inter alia, “… [the child] will remain with me for his safety until we are back at court”.

28. The following day, in response to the mother’s request that the child be returned, the father sent a text saying, “You have again shown you can’t provide the care he needs. For his safety, he will not be returned unless the Court sees fit…”

29. The mother again requested the child’s return and the father replied:

    Why so you can leave the kids home alone again. So he can end up running onto the 6 lane highway again in peak hour. There are independent witnesses. Please stop the rubbish & get the help you need.

30. The mother continued to request the child’s return. The father continued to decline to return him.

31. The father deposed:

    Since [the child] has been with me he has not been to school as I fear that [the mother] will remove him from school. I have sought, through my solicitors … an undertaking from [the mother] that if I do send [the child] to school that she will not remove him from school. I have not received such undertaking. 

32. As a consequence of the father’s position, the child has not been to school since 14 July 2018. It would also seem that he has not seen his speech therapist.

33. The family has participated in a Child Responsive Program interview and a report dated 8 February 2018 was prepared by a Family Consultant.

34. Each parent alleged the other had perpetrated family violence. The father told the Family Consultant that the mother neglected the children. The mother said that the father abused substances.

35. The Family Consultant saw all three children. In relation to Y, the Family Consultant stated:

    [Y] said that she had always had a “good” relationship with her father and is enjoying being able to spend time with him. She is, however, clear that she wants this time to continue to be supervised. She described her father as being the angriest person in her family and seemed concerned with the fact that, from her perspective, he gets angry over small things such as whether or not the children have eaten all their food. She contrasted the way each of her parent’s (sic) manage their anger: her mother by removing herself to another part of the home or going outside for a period; her father by yelling at and threatening her and her siblings. …

36. Y told the Family Consultant that she was saddened when her father discussed the separation with her, particularly the allegations relating to violence and that she was sad and unhappy when her father denigrated her mother.  

37. The Family Consultant observed a positive interaction between the child and his sisters and also between the three children and their father.

THE COMPETING APPLICATIONS

1. The mother seeks an order that the child be returned to her care. She does not seek a suspension of the supervised contact orders that were made on 6 December 2017.

2. In the mother’s care, the child will be re-united with his sisters from whom he has been separated since 13 July 2018 and who are clearly an integral part of his family dynamic. He will be returned to school and will be able to continue with his organised activities and therapies.

3. He will be able to continue to spend time with his father if the conditions of supervision can be met. It is a matter of some concern that, although the mother has agreed to a large number of proposed supervisors, including the paternal grandmother and five other family members, none appears to have been willing to supervise since 4 March 2018.

4. I cannot be confident that, in the father’s care, the child will be returned to school. He will not be able to maintain his current schedule of activities and therapies.

5. Whilst the father, through his Counsel, told the Court that the child should continue to see his mother, Counsel, when pressed, told the Court he had no specific proposal for this to occur.

6. I cannot be confident that, if the child remains in the care of the father, he will see either his mother or his sisters.

7. I do not accept the basic premise of the father’s application, that it is necessary for the child to live with him for the child to be safe. On any version of the evidence, the mother was not caring for the child on 13 July 2018 when he ran away. The child has run away from school and, if the mother’s evidence is ultimately accepted, he has also run away from his father.

8. The most significant factor is that the child is spending unsupervised time with the father when orders have already been made after a judge determined that supervision was necessary for the child’s protection. No appeal was lodged in relation to the orders for supervision.

9. The child will be returned to his mother.

10. The interim parenting proceedings are before Senior Registrar Campbell on 20 September 2018. The father’s current application for the children to live with him will also be listed before Senior Registrar Campbell. The Senior Registrar will then have an opportunity to consider where the best interests of these children lie, having regard to the evidence relating to all three children.

11. In the meantime, the children should not be separated.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 July 2018.

Associate: 

Date:  27 July 2018