Ulbek & Ulbek
[2020] FamCA 1097
•21 December 2020
FAMILY COURT OF AUSTRALIA
Ulbek & Ulbek [2020] FamCA 1097
File number(s): WOC 728 of 2017 Judgment of: WATTS J Date of judgment: 21 December 2020 Catchwords: FAMILY LAW – PARENTING – Where the children have resided with their mother since separation – Where the eldest child, who is 14, has adolescent limited conduct disorder and exposes the younger children, aged 13 and 11, to anti-social behaviour – Where the middle child has high functioning autism and the youngest child has a more severe form of autism – Where the single expert recommended the younger children be separated from the eldest child – Where the wife’s personality dysfunction affects her ability to parent all three children in the same household – Where it is in the best interests of the younger children to live with their father – Where the time the younger children spend in their mother’s household be limited for a period of six months – Where the wife is to forthwith engage with a local youth service and attempt to obtain assistance for the eldest child’s disorder.
FAMILY LAW – PROPERTY – Where it is just and equitable to make a property settlement order – Whether it is appropriate to take a global approach – Where the assets will be dealt with in one pool – Where there are disputes about monies paid and received from members of the husbands family – Where there are disputes about items to be included on the balance sheet – Consideration of contributions and 79(4)(d) – (g) matters – Determination as to what is an appropriate, just and equitable property settlement order.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60 CA, 60CC, 61B, 61DA, 65DAA, 79, 117
Family Law Rules 2004 (Cth) r 15.47
Cases cited: Kowaliw and Kowaliw (1981) FLC 91-082 Number of paragraphs: 552 Date of hearing: 2 – 6 November 2020 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Kovacevic Lawyers Counsel for the Independent Children's Lawyer: Mr Fermanis Solicitor for the Independent Children's Lawyer: Claremont Legal ORDERS
WOC 728 of 2017 BETWEEN: MS ULBEK
Applicant
AND: MR ULBEK
Respondent
AND INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
WATTS J
DATE OF ORDER:
21 DECEMBER 2020
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children namely Z born … 2007 and X born … 2009 (collectively referred to as “the younger children”) in relation to following major decisions relating to care, welfare and development of a long term nature:
(a)Health;
(b)Religious upbringing; and
(c)Education (both current and future).
3.The parents have equal shared parental responsibility in relation to all other major decisions relating to care, welfare and development of a long term nature in relation to the younger children including but not limited to:
(a)Names;
(b)Change to the younger children’s living arrangements that make it significantly more difficult to spend time with the other parent;
(c)Issue of Passports;
(d)International travel.
4.In the exercise of sole parental responsibility pursuant to Order 2 herein and excluding circumstances of emergencies, the following shall apply:
(a)The father shall give the mother reasonable notice of any such issue for which a decision needs to be made and all reasonable particulars about the circumstances that give rise to the issue, including the name and contact details of any professional person relevant to the issue;
(b)The father must genuinely consult with the mother about the issue;
(c)The parents will make a genuine effort to come to a joint decision about any such issue; and
(d)If, after making a genuine effort to come to a joint decision, the parents reach no agreement, then within 14 days of the father giving the mother notice of the issue, the father may make the decision and inform the mother in writing of the decision and all reasonable particulars of it, including the name and contact person of any relevant professional person.
5.Notwithstanding Order 2, that this Order be irrevocable authority for:
(a)The mother to receive directly from the younger children’s place(s) of education a copy of all reports, photos (at her cost), newsletters and other documents normally provided to parents;
(b)The mother to participate in parent-teacher interviews at the younger children’s place(s) of education;
(c)Any medical practitioner or health professional treating the younger child/ren to provide the mother with all information they are lawfully able to provide about the child/ren.
6.The mother is to have sole parental responsibility for Y, born … 2006.
7.Notwithstanding Order 6, that this Order be irrevocable authority for:
(a)The father to receive directly from the Y’s place(s) of education a copy of all reports, photos (at his cost), newsletters and other documents normally provided to parents;
(b)The father to participate in parent-teacher interviews at the Y’s place(s) of education;
(c)Any medical practitioner or health professional treating the Y to provide the father with all information they are lawfully able to provide about Y.
8.The parents shall make the decisions about day to day care, welfare and development of the children during periods when the children are in their respective care.
Live with and spend time with
9.The younger children, Z and X, live with the father.
10.The child Y is to live with the mother.
11.Y spend time with the father is accordance with her wishes.
12.X and Z spend time with the mother as follows:
(a)For a period of six months,
(i)Week one – Saturday and Sunday from 10am until 5pm;
(ii)Week two – Saturday from 10am to 5pm.
(b)Thereafter each alternate week during school terms from the conclusion of school (or 9.00am on a non-school day) Thursday until the commencement of school (or 7.00pm on a non-school day) Tuesday.
School holidays
13.During all school holiday periods, commencing after the conclusion of time pursuant to order 12(a) (and that Order 12(b) herein shall be suspended during such time) on a week about basis commencing on the first weekend and every alternate weekend thereafter from 11.00am Saturday until 11.00am the following Saturday (or the commencement of school on the first day requiring student attendance).
Special Occasion Time
14.Notwithstanding any Order to the contrary, the younger children spend time with the Mother on the following occasions:
(a)On the weekend of Mother’s Day from the conclusion of school Friday (or 3.00pm on a non-school day) until the commencement of school (or 11.00am on a non-school day) Monday;
(b)On Easter from 3:00pm on Thursday (immediately preceding Good Friday) until 11:00am Easter Monday in each year.
(c)On Orthodox Christmas each year from 11:00am 7 January until 11:00am 9 January;
(d)On Orthodox Easter period of three consecutive days from 11:00am on the first day until 7:00pm on the last day provided the mother has given the father no less than fourteen days (14) written notice of the nominated days (before the first day);
(e)In the event that the children are not otherwise in the mother’s care on the mother’s birthday on 3 July from then the children will spend time with the mother from the conclusion of school until 7:00pm if a school day or 11:00am until 2:00pm if a non-school day with all children being present.
(f)In the event that the children are not otherwise in the mother’s care on the children's birthday then the children will spend time with the mother from the conclusion of school until 7:00pm if a school day or from 11:00am to 7:00pm if a non-school day with all children being present.
(g)Any other times as agreed between the parents in writing.
15.Notwithstanding any Order to the contrary, the younger children are to be in the father’s care on the following occasions:
(a)On the weekend of Father’s Day from the conclusion of school Friday (or 3:00pm on a non-school day) until the commencement of school (or 11:00am on a non-school day) Monday;
(b)On Christmas Eve from 11:00am until 7:00pm Boxing Day in each year;
(c)On Ramadan each year during the last six days as nominated by the Father and provided the father has given the mother no less than fourteen (14) days written notice. With such time commencing from the conclusion of school (or 3.00pm on a non-school day) on the first day of Ramadan until 7:00pm on the last day of Ramadan.
(d)On Eid each year for the first three days as nominated by the father and provided the father has given the mother no less than fourteen (14) days written notice. With such time commencing from the conclusion of school (or 3.00pm on a non-school day) on the first day of Eid until 7:00pm on the third day of Eid.
(e)In the event that the younger children are not otherwise in the father’s care on the father’s birthday on … from then the younger children will spend time with the Father from the conclusion of school until 7:00pm if a school day or 11:00am until 2:00pm if a non-school day.
(f)In the event that younger children are not otherwise in the father’s care on the either of their birthdays then the younger children will spend time with the Father from the conclusion of school until 7:00pm if a school day or from 11:00am to 2:00pm if a non-school day.
(g)Any other times as agreed between the parents in writing.
Telephone communication
16.The children have telephone communication with each parent as follows:
(a)The parent in whose care the children are in shall do all acts and things to facilitate the children having telephone communication with the other parent in accordance with the child's wishes and that the same be initiated by the children AND for that purpose each parent shall ensure the children have access to the their charged personal electronic devices;
(b)Further, when the younger children are in the father's care, the mother shall be at liberty to contact the younger children by telephone or other electronic means on two occasions per week, being Tuesdays and Thursdays between 6pm and 6.30pm. The mother shall confirm her intention to make the call half an hour before by text messaging the father in order to facilitate the children’s availability. The mother is to initiate the call to the children by calling the father’s mobile number;
(c)Following the commencement of the mother’s time with the younger children referred to in order 12(b), when the younger children are in the mother’s care, the father shall be at liberty to contact the younger children by telephone or other electronic means on two occasions per week, being Tuesdays and Thursdays between 6pm and 6.30pm. The father shall confirm his intention to make the call half an hour before by text messaging the mother in order to facilitate the younger children’s availability. The father is to initiate the call to the younger children by calling the younger children’s mobile devices.
General
17.For the purpose of changeovers, when changeovers are not occurring to and from school, all changeovers shall occur by the father collecting and delivering the children from the front of the mother’s home at the commencement and conclusion of the children’s time with the mother.
18.The parents shall do all acts and things necessary to ensure that X attends all allied health related appointments scheduled whilst the children are in their care.
19.Both parents are to ensure that at all times whilst X is in their respective care that he is wearing his ID bracelet.
20.Each parent be at liberty to attend the younger children’s place/s of education or extracurricular activities for special occasions or events in which parents are explicitly invited to attend AND that the parents otherwise be restrained by injunction from attending upon the same without the written consent of the parent in whose care the children are in at that time.
21.In the event that any of the children suffer a medical emergency or significant illness in either parent’s care, that parent shall advise the other parent via text message at first available opportunity of the following:
(a)The nature of the medical emergency;
(b)The name, telephone number, and address of any medical practitioner or health care professional who has provided treatment to the children;
(c)Diagnosis received;
(d)Prognosis;
(e)The details of any medication that has been prescribed for the child that needs to be taken while the child is in the care of the other parent;
(f)Treatment rendered.
22.Within 7 days of the date of these orders, both parties provide to the other in writing by email details of any change in telephone contact details forthwith upon any change whilst they are in the care of each parent respectively.
Restraints and injunctions
23.Without admissions, both parents be restrained by injunction from:
(a)hitting, slapping or physically chastising any of the children, threatening to do so or permitting any other person to do so;
(b)operating a motor vehicle within which any of the children are travelling or taking X outside their home in their own sole care whilst pain medications or other medications are causing any subjective experience of sedation, disrupted focus and/or alertness;
(c)Criticising or denigrating the other parent, the other parent’s partner, members of the other parent’s family and/or household in the presence or hearing of the children, and they shall both use their best endeavours to ensure that no other third party does so;
(d)Speaking or permitting any other person to speak to or about the other parent, the other parent’s partner, the other parent’s household or the other parent’s family in a negative, offensive or unpleasant fashion in the presence or hearing of the children;
(e)Discussing with or in the presence or hearing of, or in written correspondence (including but not limited to email, text message or any social media platform) to or visible by the children:
(i)These proceedings;
(ii)Any other Court proceedings involving the parent/s.
(f)Showing, or allowing the children to access documents prepared in relation to these proceedings or any other Court proceedings involving the parent/s;
(g)Bringing or allowing the children to come into contact with the following persons:
(i)Mr E;
(ii)Mr F.
24.It is requested that the Independent Children's Lawyer explain any final Orders to the children having regard to the comments made in relation to the eldest child in the section in the reasons entitled “Any other relevant fact or circumstance”.
Treatment, Therapy and Support
25.As soon as is practicable after the date of the making of these orders the mother shall contact AA Services on … and do all things necessary including signing any documents, to ensure that Y and the mother engage with that service. The mother is to ensure that Y attends all appointments as scheduled by that service.
26.The father is to be notified by the mother when treatment commences at AA Services and subsequent appointments and attendance in writing.
27.These orders serve as authority for the father to be able to participate in any appointments as requested by workers of AA Services.
28.These orders serve as authority for the father AND Dr B to speak to workers from AA Services when requested by workers from that service or at the request of the father.
29.The Independent Children’s Lawyer have liberty to provide to AA Services the following documents;
(a)Copy of these orders and any reasons for judgement;
(b)The expert report prepared by Dr B.
30.The mother shall:
(a)Forthwith do all acts and things to engage with the G Pain Service at the earliest available appointment, and thereafter co-operate with the assessment and comply with all recommendations made by such service including to any subsequent treatment.
(b)Where at all possible the Mother is to engage with the same doctor at the G Pain Service;
(c)For at least 12 months following the making of these Orders and otherwise whilst ever the mother continues to take regular analgesic medication, make pre-emptive appointments at regular intervals (with such frequency to corresponded with her analgesic prescription renewal/s) so far as is practicable with the same General Practitioner in accordance with the recommendations made at paragraphs 768 of Dr B’s Report AND that the mother be granted leave to provide such practitioner with copies of the following:
(i)Dr B’s Report;
(ii)Any final Orders made and written reasons for judgment in these proceedings.
31.The mother is to continue to engage in individual therapy for a period of not less than 12 months so as to address her anxiety, depression and personality vulnerabilities as outlined at paragraph 768.4 of Dr B’s report, with psychologist, Mr H or such other therapist as might be recommended by Mr H. The mother is to co-operate with the assessment and comply with all recommendations made by such therapist including but not limited to attending all scheduled appointments.
32.The mother be granted leave to provide any therapist with copies of the following:
(a)Dr B’s Report;
(b)Any final Orders made and written reasons for judgment in these proceedings.
33.The father, the mother and the children (separately and/or together in accordance with the advice of the therapist), shall do all things necessary to engage in therapy with J Service in accordance with the recommendation made at paragraph 773 of Dr B’s Report AND for the purpose of the therapy, the mother and father shall:
(a)Obtain any available mental health plans for the children and themselves to engage in the therapy;
(b)Attend upon the therapist at a regular frequency for at least 12 months after the making of these Orders;
(c)Thereafter attend upon the therapist at such frequency as is recommended by the therapist;
(d)Follow all reasonable recommendations made by the therapist;
(e)Ensure the children attend upon the therapist at such frequency as is recommended by the therapist;
(f)Ensure that the children follow all reasonable recommendations made by the therapist;
(g)Ensure that the children engage in additional therapy with an alternate service in accordance with any recommendations made by the therapist
AND that the parents be granted leave, and that they shall, to provide such therapist with copies of the following:
(h)Dr B’s Report;
(i)Any final Orders made and written reasons for judgment.
34.This Order be irrevocable authority for:
(a)the practitioner referred to at Order 34 to discuss such therapy with:
(i)Dr B;
(ii)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by either parent and/or the child/ren;
(iii)The children’s place(s) of education.
(iv)the children’s place(s) of education to discuss the children’s progress with the following persons:
(v)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by either parent and/or the child/ren;
(vi)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by the child/ren to discuss such therapy with:
A.Dr B;
B.the children’s place(s) of education;
C.Any therapist providing counselling to the parent/s or child/ren
35.That the parents be granted leave to provide a copy of Dr B’s Report to any therapist, psychologist, social worker, psychiatrist, mental health practitioner, educational services or support services attended upon by either parent and/or the child/ren.
Y
36.The mother is to ensure that;
(a)Y does not consume illegal substances in the presence or view of either Z and/or X;
(b)She does not allow any other person to consume illegal substances in the presence or view of either Z and/or X;
(c)No person is allowed to smoke inside the home in the presence of either Z, X and/or Y and Y is not to smoke in the presence of either Z and/or X;
(d)She does not allow Y, or any other person, to engage in anti-social behaviours including swearing, screaming and sexualised behaviours in the presence or hearing distance of Z and/or X;
(e)For a period of six months from the date of the making of these orders, Y does not have any friends present when Z and/or X are in the mother’s care;
(f)She does not supply Y with cigarettes or tobacco;
(g)She does not keep alcohol in the home;
(h)She use her best endeavours to prevent Z viewing Y’s social media platforms and accounts on Z’s phone, by all means including but not limited to accessing Z’s phone account for the purposes of complying with this Order.
Family Law Watch List
37.Until further order each parent, his/her servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, Y (a female) born … 2006, Z (a female) born … 2007 and X (a male) born … 2009, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
38.The names of the children be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia provided that this order be suspended in respect to any or all the children respectively, during any period of time where the parents have mutually agreed in writing or a court has ordered that any or all of the children can be absent from Australia.
Independent Children Lawyer’s costs
39.Contemporaneously with the implementation of the property settlement order between the parties, the husband shall pay the ICL’s costs fixed in the sum of $16,734 and for the wife shall pay the ICL’s costs fixed in the sum of $11,559.
PROPERTY
40.Pursuant to s 79 Family Law Act 1975 (Cth), a property settlement order be made in accordance with paragraphs 41 to 51 hereof.
41.Within three (3) months the wife is to pay to the husband the sums of:
(a)$56,706
(b)$16,307 (for one half of Dr B’s fees)
42.Within three (3) months of the date of this order, the wife will do all acts and things and sign all such documents necessary to transfer to the husband all her right, title and interest in the L Street Property and thereafter the husband shall indemnify the wife and forever keep her indemnified against any liability in respect of the L Street Property including, but not limited to, the payment of water and council rates, land tax and insurance payments.
43.Within three (3) months of the date of this order, and simultaneously with the transfer pursuant to paragraph 42, the parties shall do all acts and things and sign all documents as may be necessary to discharge the mortgage loan secured over their share of the L Street Property.
44.Within three (3) months of the date of this order, and simultaneously with the transfer pursuant to paragraph 42, the husband shall do all acts and things and sign all documents as may be necessary to refinance into his sole name the mortgage loan secured over the L Street property and thereafter the husband shall be responsible solely for the repayments of all money due and payable under the mortgage and shall indemnify the wife and forever keep her indemnified in respect of such liabilities.
45.The wife be solely entitled to:
(a)The property at M Street, Suburb N, New South Wales;
(b)Jewellery in her possession;
(c)Her bank accounts.
46.The husband be solely entitled to:
(a)His Motor vehicle 1;
(b)The business trading as O Business;
(c)His bank accounts;
(d)His superannuation.
47.Within three (3) months of the date of this order, the wife, the husband, Ms R Ulbek and Mr S Ulbek shall do all acts and things to cause the sum of $35,000.00 (thirty-five thousand dollars) held in the trust account of Kells The Lawyers (pursuant to Orders made by the Honourable Justice Watts on 23 October 2020) to be paid to the husband.
48.Provided the husband has complied with paragraph 44 and in the event that the wife has failed to comply with paragraph 41, the wife shall do all acts and things necessary to cause the property at M Street, Suburb N to be sold by private treaty at the earliest available date at a price to be agreed on between the parties and failing agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the said sale be disbursed in the following order and priority:-
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)The payment necessary to adjust for any counsel and/or water rates;
(c)Payment of 14 per cent to the husband;
(d)Payment of 86 per cent to the wife;
Provided that in the event that the M Street property sells for more than $520,000, the amount of the sale price above that figure shall be divided 55 per cent to the wife and 45 per cent to the husband and in the event that the M Street property sells for less than $520,000, that decrease will be borne 55 per cent by the wife and 45 per cent by the husband.
49.In the event that the M Street property fails to be sold by private treaty within a period of six (6) calendar months of being listed for sale, then the wife shall do all acts and things necessary and execute all necessary documents to cause the M Street property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the said sale be disbursed in accordance with paragraph 48 of this property settlement order.
50.The husband indemnify and keep indemnified the wife from against all liabilities outstanding to any family member or friend and any liabilities arising from the husband’s business trading as O Business.
51.Other than as otherwise set out in this order, the wife and husband have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
52.If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of this order, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act to execute such documents on behalf of such party.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
WATTS J
INTRODUCTION
The parties, who lived together for 12 years, seek different parenting and property settlement orders. They have three children who were born within a period of three years immediately after they were married.
Y, (“the eldest child”), who is 14, has an “adolescent limited conduct disorder”; Z (“the middle child”) has high functioning autism and X (“the youngest child”) has a more severe form of autism and has a penchant for running from those caring for him.
In the three and a half years since the separation, the three children have been living with their mother.
The eldest child’s current behaviour in the wife’s household is highly problematic. She has a dysfunctional relationship with her father and he does not seek that she see him unless she wishes to, which she currently does not.
The Independent Children’s Lawyer (“the ICL”) and the husband propose that Z and X (“the younger children”) be moved to live with their father, primarily because of the potential effect the eldest child’s behaviour might have upon them and asserted inadequacies in the wife’s parenting capacity.
The parties seek significantly different orders to divide their modest assets of $882,000. Together they have incurred $500,000 on this litigation, most of which is still outstanding to their lawyers.
APPLICATIONS
Parenting
The applications of the parents and the Independent Children’s Lawyer (“ICL”) underwent a number of iterations between the outset of the hearing and the end of final submissions.
As indicated, the younger children have special needs. The middle child suffers from autism spectrum disorder and has an associated mild intellectual disability. The youngest child suffers from severe autism spectrum disorder and has a substantial intellectual disability and language impairment.
The position of the ICL and the parties was significantly affected by the oral evidence of the single expert, Dr B, who, having reviewed voluminous updating material, moved from a recommendation in his written report that all children should primarily live with the wife to a recommendation that the younger children should primarily live with their father.
The parties attended a mediation in March 2020. They agreed to a regime of the children seeing their father for increasing periods of unsupervised time. By the date of the hearing, the children had since the beginning of 4th term 2020, been spending four nights a fortnight with their father, being from Thursday after school to Monday morning before school.
The wife said that she had agreed to unsupervised time on the basis that there had been two and a half years of supervision and that the husband had sought help and done an anger management course.
The easiest way of describing the final parenting proposals by the ICL and the parties is to start with the ICL’s Further Amended Minute of Order (Exhibit 24) which is set out in Schedule 1 and to indicate which parts of it the parties do not agree with and what alternate orders each seeks.
The Independent Children’s Lawyer
The orders sought by the ICL can be summarised as follows:
·The husband have sole parental responsibility for the younger children in relation to health, religion and education
·In respect of that order for sole parental responsibility, there be an associated order for notice, consultation, a genuine effort to come to a joint decision and notice of final decision
·The parties have equal shared parental responsibility for the younger children in relation to names, changes to living arrangements that would make it significantly more difficult to spend time with the other parent; the issue of passports and international travel
·An order allowing the wife to obtain information from doctors and teachers about the younger children
·The younger children live with their father
·The eldest child live with the wife
·The wife have sole parental responsibility for the eldest child
·The eldest child spend time in accordance with her wishes
·The younger children spend time with their mother:
- For a period of six months, Saturday and Sunday in one week and Saturday in the alternate week from 10am to 5pm
-Thereafter each alternate week for five nights a fortnight (after school Thursday to 7pm Tuesday) and that school holidays be on a week about basis
-Various special occasions
·Changeovers from the front of the wife’s home
·The parents ensure that the youngest child wears his ID bracelet at all times
·General orders in relation to the youngest child attending medical appointments; parents attending school; up to date telephone details; responsibilities during a medical emergency or significant illness
·Various restraints and injunctions
·Specific orders in relation to treatment, therapy and support
·Specific orders in relation to the wife ensuring that the eldest child behaves in certain ways whilst the younger children are in her household
·Continuation of the children’s names on the watchlist
The ICL also sought costs orders against each of the parents
The wife
Initially the wife substantially embraced the recommendations that were in Dr B’s 2019 report. She indicated that she welcomes the husband having more time with the younger children and said that it is appropriate for that time to increase from the current four nights a fortnight to five nights a fortnight. She however seeks an order that once the middle child reaches 16 years of age she should spend such time with her father as she wishes. By the end of final submissions, the wife proposed a week about arrangement for the younger children.
Dr B’s 2019 report recommended that it would be in the best interests of the children for the wife to have sole parental responsibility in respect of their health and education and the wife adopts that recommendation and maintained it despite the changes in Dr B’s opinions during the hearing.
The wife’s final minute of order in relation to parenting (Exhibit 28) is set out at Schedule 2. The wife’s proposals were in summary:
·The wife to have sole parental responsibility for the younger children in relation to health and education
·The wife provide reasonable notice for any decision that is made
·The parties have equal shared parental responsibility in relation to religion and cultural upbringing in respect of the younger children
·The husband have authority to obtain information from doctors and teachers
·The younger children live with each of the parents during school terms and school holidays in a week about arrangement
·The eldest child live with the wife
·The wife have sole parental responsibility for the eldest child
·The eldest child spend time with the husband in accordance with her wishes
·Times on special days commencing at 11am rather than 9am
·Changeovers that didn’t happen at school happen from the front of her home
·An order for telephone communication with each parent in accordance with the child’s wishes and to be initiated by the child with a proviso that when the children are in the husband’s care the wife be at liberty to contact the children on the husband’s mobile phone and when the children were in the wife’s care, the husband be at liberty to contact the children on the children’s own personal electronic devices
·General orders in accordance with those as proposed by the ICL
·Restraints and injunctions in accordance with those proposed by the ICL and in addition:
-Restraint on exposing the children to hearing or seeing communication about proceedings
-Bringing or allowing the children to come into contact with Mr E and Mr F
·The ICL explain the final orders to the children
·Orders in relation to treatment, therapy and support
·The wife sought a change to order 31 as proposed by the ICL, by deleting reference to the G pain service and inserting a reference to her current treating psychologist
·The wife opposed order 32 as sought by the ICL (see Schedule 1) and the ICL agreed to withdraw that application
·The wife sought an order in accordance with a previous recommendation made by Dr B that the parties attend “Surviving Adolescence” parenting course run by Relationships Australia or an equivalent program and a group parenting course regarding parenting children with autism spectrum disorder run by ASPECT or an equivalent program
·The wife accepted the orders as to her control of the eldest child’s behaviour whilst the younger children were in her household and added to them:
-The wife not supply the eldest child with cigarettes or tobacco
-The wife does not keep alcohol in the home
-The wife use her best endeavours to prevent the middle child from viewing the eldest child’s social medial platforms and that she monitor the middle child’s phone to monitor the middle child’s viewing of the eldest child’s social media
·Watchlist orders remain
The husband
The parenting orders sought by the respondent husband are set out in an amended minute (Exhibit 25) which is set out at Schedule 3.
The significant parts of the husband’s proposals were:
·The husband to have sole parental responsibility in relation to the younger children in relation to health, religion and education
·The wife to have sole parental responsibility in relation to the eldest child except for religion
·Each party have equal shared parental responsibility for all of the children in relation to their names, change of living arrangements that make it significantly more difficult to spend time with the other parent, issue of passports, international travel and religion for the eldest child
·There be mutual obligations for notice, consultation, making a genuine effort to come to a joint decision and notice of the final decision in circumstances where one party had sole parental responsibility
·The younger children live with the husband
·The eldest child live with the wife
·The eldest child spend time with the husband in accordance with her wishes
·The younger children spend time with the wife as follows:
-Three days a fortnight for a period of six months in accordance with the proposal by the ICL
-Thereafter for a period of six months from the conclusion of school Friday until the commencement of school Monday
-Thereafter five nights a fortnight in accordance with the ICL’s proposal (accordingly the husband was proposing a 12 month period before the younger children were with their mother 5 nights a fortnight)
·School holidays to be week about after 12 months
·Changeover to be at the 7/11 Suburb V and not from the front of the wife’s home
·Special occasion time involving both Christian and Muslim religious festivals
·The wife be at liberty to contact the children by telephone or other electronic means on two occasions on Tuesdays and Thursdays between 6pm and 6.30pm each week
·Most of the general orders sought by the ICL
·In relation to the youngest child’s ID bracelet, the husband proposed that each parent was to purchase an ID bracelet and ensure that he wore it at all times whilst he was in their respective care
·The provision to the husband of all medical practitioners associated with the care of the children whilst in the wife’s care
·The children be restrained from being brought into contact with Mr E and Mr F
·The husband accepted the ICL’s proposals in relation to treatment, therapy and support but added an extension of the ICL orders so that the wife inform the husband of all appointments with AA Services and that the husband be able to initiate contact with those services in respect to that services’ interactions with the eldest child
·Material to be provided to treating practitioners, educational services and support services (with which the ICL agreed)
·The husband consented to costs as per the ICL’s notice in his amended minute, however spoke against that making of such an order in oral submissions
·The husband asked for the following notation to be added;
·“Notation: It is the husband’s wish that following the eldest child’s participation in treatment therapy and support programs as referred to in these orders, that the eldest child will spend time with the husband that will progress to a shared care arrangement”.
DOCUMENTS RELIED UPON
Wife
The documents the wife relied upon are as follows:
(a)Wife’s affidavit filed 15 October 2020; and
(b)Wife’s financial statement dated 15 October 2020.
Husband
The documents the husband relied upon are as follows:
(a)Husband’s affidavit filed 7 October 2020;
(b)Husband’s financial statement dated 6 October 2020;
(c)Affidavit of Ms W filed 6 October 2020 (husband’s treating psychologist since March 2017; Ms W was not required for cross examination);
(d)Affidavit of Mr BB filed 6 October 2020 (jewellery valuer);
(e)Affidavit of Mr BB filed 28 October 2020;
(f)Affidavit Ms R Ulbek filed 6 October 2020 (husband’s mother/paternal grandmother);
(g)Affidavit Ms CC filed 7 October 2020 (dietitian who gives evidence about the wife from July 2017);
(h)Affidavit of Mr DD filed 9 October 2020 (carpenter);
(i)Affidavit Mr EE filed 13 October 2020 (husband’s friend; neighbour of the wife;);
(j)Affidavit Mr FF Ulbek filed 6 October 2020 (husband’s brother; about a debt that is owed in the property case); and
(k)Affidavit Mr GG Ulbek filed 6 October 2020 (husband’s brother; about a debt in the property case).
Because of time constraints, both parties were given an opportunity to provide additional written submissions in respect of their property applications. The wife took up that opportunity; the husband did not but had provided a form of written submissions after the conclusion of the evidence. In addition to those documents made exhibits during the hearing, the additional submission which was provided in writing by counsel for the wife will be marked Exhibit 30.
The Independent Children’s Lawyer
The documents the ICL relied upon are as follows:
(a)The single expert report prepared by Dr B dated 22 October 2019.
SHORT HISTORY
The wife was born in 1969 and is 51 years of age.
The husband was born in 1973 and is 47 years of age.
The parties met and started a relationship in 1994.
On 14 February 2004 the husband says that the parties commenced living together.
In 2005 the parties married. It is the wife’s case that the parties’ date of cohabitation was the date they got married and that they did not live together prior to the marriage.
In 2006, the eldest child was born. She is currently 14 years of age.
In 2007 the middle child was born and she is currently 13 years of age.
In 2009 the youngest child was born and he is currently 11 years of age.
On 6 March 2017 the parties separated. At that time the children were 11, 9 and almost 8.
In June 2018 the parties were divorced.
CREDIT
The Wife
For the most part I gained the impression that the wife was trying to be as forthright as she can but she has her own anxieties, particularly an anxiety that the children will be taken away from her and that caused her to be reticent about answering some questions, causing me to doubt her candour. A notable example was the wife saying she was not sure, having read the disturbing note written by the middle child on the Monday before the commencement of the hearing, when it was she attempted to contact Mr H (a psychologist) for help.
As discussed later, I have found implausible some of the wife’s explanations for some of what was on the eldest child’s old mobile phone (Exhibit 10).
The wife was unable to concede making any contribution and took no responsibility for the current behaviours and vulnerabilities of each of the children. The wife took no responsibility for the eldest child’s behaviour over the last 2 ½ years.
On the other hand, the wife easily conceded the husband:
·Loves the children; and
·Had much to offer all of them at the current time (whilst tacitly indicating that she was pessimistic about her ability to get the eldest child to go to spend time with her father).
The Husband
Overall the husband was a less impressive witness than the wife. On occasions he seemed unable to focus on the questions he was being asked.
When the husband was questioned about the “home invasion” event on 22 October 2017, which the husband had caused to have recorded (I discuss this event in more detail below), he was asked about this statement he made to the wife in front of the youngest child at the 8 minute 20 mark of the recording:
Go back to your dad so he can show you what he used to show you.
In cross examination, it was put to the husband that this was a reference to a disclosure the wife had made to him during the marriage that her father’s friend had exposed himself to her when she was a child and the husband’s belief that the real perpetrator was the wife’s father. The husband (I thought at the time very unconvincingly) denied that this statement had anything to do with that topic. Counsel for the wife asks the husband “this is a reference to the wife’s father exposing himself to”. The husband relied “No, I didn’t know that until the Subpoena”. He subsequently said he found out about it through subpoena documents in December and only knew her father had exposed himself to others but not her. The husband maintained he had no idea what he meant because he could not remember what the wife told him her father had showed her.
The wife subsequently tendered an affidavit sworn by the husband on 6 September 2017 (Exhibit 21). In that affidavit the husband deposes:
9.Some months after we were dating, I noticed the Applicant taking medication. On one occasion I said to her:
“What are you taking that for?”
She said “A friend’s father exposed himself to me several times while playing with himself”…
…
88.Since separation I’ve been informed that the sexual assault upon the Applicant which occurred to her when she was a teenager was not in fact her friend’s father, but in fact her own father. My understanding is that she has repeated this to my family members and other friends who have conveyed this to me.
I find the husband gave evidence which he knew was false when he said that he had no idea what he was referring to in this statement he made to the wife, at the time of the “home invasion” on 22 October 2017. The statement made by him to the wife during the incident on 22 October 2017 was a direct reference to his belief as to what the wife’s father had done and was a very offensive thing for the husband to have said to the wife given his knowledge as to the effect that the sexual abuse had had upon her.
The husband’s denial, about what his statement to the wife on 22 October 2017 meant, affects his credibility. I also do not accept the husband’s explanation that he had attended the wife’s home on this day to recover some of his tools.
I discuss later the fact that the husband has fabricated conversations with his brother, Mr FF Ulbek, and his mother concerning various amounts of money that he said that he lent to Mr FF Ulbek in 2008 and other amounts he had borrowed from Mr FF Ulbek in cash in 2011.
I also found unconvincing the husband’s denial that on 12 January 2018 he had taken the eldest child in a headlock. The eldest child had told Dr B (at paragraph 304) that her father had “his arms in a headlock around my neck…”. The husband suggested, I thought unconvincingly, that he simply was embracing the children, gesturing during his oral evidence to indicate that was in a protective way with his arms around them. I prefer the wife’s version of what she saw which is consistent with the eldest child’s statement to Dr B.
Conclusion as to credit
I decline however to make any general findings of credit against the husband as invited by counsel for the wife. Nor do I make any general credit finding against the wife. I am unable to conclude that where the parties’ evidence is diametrically different I would prefer one party’s version over the other. I will attempt to deal with controversies on an individual basis, so far as I am able, or otherwise record the disputed allegation.
CHRONOLOGY
The wife was born in 1969 and is 51 years of age.
The husband was born in 1973 and is 47 years of age.
The husband says that he and the wife commenced dating in early 1994 at a time when the wife was nearly 25 years of age and the husband was nearly 21 years of age.
In 1996 the husband purchased vacant land for $62,000.
The parties became engaged on 14 February 1997.
In late 1997 the husband sold the vacant land for $95,000.
In 1998 the parties ceased their relationship for three and a half months.
In May 1999 the husband and his parents purchased land for $87,500.
In 1999 the wife moved from having three jobs to a single job at 44 hours per week.
On 31 December 1999 there was an incident between the husband and wife on New Years Eve which resulted in the police being called.
In January 2000 the parties again broke up for a short period of time and the husband travelled Europe for three months.
On 4 July 2000 the wife paid a deposit of $10,800 to purchase M Street, Suburb N (“the M Street property”).
On 14 July 2000 the parties obtained a loan approval from Westpac to borrow $86,000.
On 24 July 2000 the parties exchanged contracts to acquire the M Street property at a price of $108,000.
On 8 September 2000 the wife obtained loan approval from Westpac to borrow $93,200 with mortgage insurance.
The settlement of the acquisition of the M Street property took place on 18 September 2000. The property title and the loan with Westpac were in the wife’s name alone. The wife received a $7,000 first home buyer’s grant. It is the husband’s assertion that whilst the acquisition of this property was in the wife’s name only, it was a joint endeavour by them both.
Following the purchase of the M Street property, the wife’s father carried out the renovations to the property, supplying materials worth $20,000.
Between 2001 and 2003 the husband was involved in renovation work to the M Street property for about 10 to 12 weeks, after hours and on weekends. He says Mr DD assisted him (at paragraph 528 of his trial affidavit) but Mr DD gave evidence that he had not known the husband until 2004 (paragraph 5 of Mr DD’s affidavit).
In June 2001 the husband and his parents sold the land that they had acquired in May 1999 for $90,000,
In 2002 there was an incident between the husband and wife regarding a meal the wife had prepared.
In the middle of 2003 the wife moved into the M Street property.
In January/February 2004 the wife ceased paid employment and has never returned to the workforce. After the wife ceased work she was on a sickness allowance in 2004 and 2005.
The husband says that the parties commenced living together on 14 February 2004 (but I have not accepted his evidence about that).
During 2004 the husband demolished an old shed on the M Street property and laid the foundation to build a detached garage which he had designed on the property with a granny flat which included a bathroom and a little kitchenette.
In late 2004 there was an incident where the wife says the husband is violent to her neighbour.
In 2005 the parties married. It is the wife’s case that the parties’ date of cohabitation was the date they got married and that they did not live together prior to the marriage (and I have accepted the wife’s evidence about that).
In May 2005 there was an incident where the wife says the husband punched a door.
After the marriage the parties went on an overseas honeymoon and returned to Australia in late August 2005. At that time the wife was pregnant with the first child of the marriage.
By at least August 2005 the husband commenced paying the mortgage on the M Street property and continued to pay the mortgage from monies earned from his personal exertion after that time.
On 12 September 2005 the husband had a motor vehicle accident and thereafter was in receipt of a disability pension.
The husband alleges that during her pregnancy, the wife used his pain medication.
In 2006, the eldest child was born. She is currently 14 years of age.
From 2006 onwards the husband and wife undertook major renovations to the M Street property.
In 2007 the middle child was born and she is currently 13 years of age.
In 2007 the husband says that the eldest child hit her head on a table; swallowed a coin and swallowed a small toy. The eldest child was being supervised by her mother who has explained that she fell asleep. The husband said that the wife was not attending to any home duties at that time and complained about her falling asleep during the day.
In 2008 (the eldest child’s 2nd birthday), there was an incident where the wife says the husband punched a hole in the wall.
On 22 October 2008 the husband received $38,250 by way of a workers’ compensation payment.
On 20 December 2008 the husband paid $40,000 to his brother, Mr FF Ulbek, by cheque.
On 29 December 2008 the husband paid $4,050 to Mr FF Ulbek.
In 2008 the husband established “O Business” in Suburb Q.
On 12 January 2009 the husband paid a further $16,000 to Mr FF Ulbek.
In 2009 the youngest child was born and is currently 11 years of age.
The wife says there was an incident 2009 where the husband hit the eldest child.
In September 2009 the youngest child was diagnosed with severe autism. The husband asserted the wife struggled to deal with his condition, shouting at him “[the youngest child] what the fuck have you done”, “what the hell is this shit”, “what the fuck did you say”.
In October 2009 there was an incident where the wife says the husband threatened violence.
In early 2011 the husband says that the parties realised that the middle child’s speech was problematic and her social skills were poor (she was approaching her fourth birthday at around that time).
The wife says that in 2011 the husband ceased providing any assistance with the care of the children except for reading to the youngest child in late 2016.
In 2011 the youngest child walked away from his home whilst in the wife’s care. The first occasion when this occurred was when he was just two years old. There were a number of other occasions when this occurred during the next six years.
In 2012 the husband received about $38,000 in compensation, in relation to the motor vehicle accident that he had in September 2005.
In 2012, as the husband conceded in cross examination, he forced the eldest child and the middle child, then six and five, to face each other and slap each other as they were bickering. I accept the wife tried to intervene but the husband said, “Shut up or you’ll get it too”.
The wife says that in late 2013 there was an incident where the husband chased his daughters with a power tool. From the husband’s description during his oral evidence, I am satisfied he was angry at that time.
In September/October 2013 the husband and wife paid off the mortgage on the M Street property.
On 26 October 2013 contracts were exchanged for the purchase of a property at L Street at auction for a purchase price of $383,000. The deposit was 10 per cent. The purchasers were the husband, the wife and the husband’s parents. Stamp duty was $12,745. The details about this acquisition are discussed below.
On 29 October 2013 a rental appraisal was obtained for the M Street property, indicating the range for the market rent for this property was between $450 and $460 a week.
On 27 November 2013 Mr FF Ulbek says he transferred $20,000 to the husband’s bank account (which he says he has paid for his parents).
On 9 December 2013 settlement occurred for L Street. The amount of $290,000 is raised by way of mortgage. The stamp duty was $12,750 and the purchase funds, $70,365.
On 11 December 2013, $3,000 was withdrawn from the bank account of the husband’s mother.
On 12 December 2013, $6,000 was withdrawn from the bank account of the husband’s mother. She says both the 3,000 and the $6,000 was paid to the husband.
On 30 December 2013, $1,200 was withdrawn from the husband’s mother’s bank account.
In either 2013 or 2014 there was an incident where the husband and the paternal grandmother tied the youngest child up in order to prevent him from running.
In February 2014 there was an incident where the youngest child cut his foot and the husband smashed the wife’s laptop in front of the children, the wife and the paternal grandmother. At paragraph 59 of the husband’s affidavit, he says that there was an incident in 2016 where he smashed the wife’s laptop in circumstances where she was yelling at the middle child. The husband says he said the wife “fuck you and your Facebook, don’t talk to our daughter like that”. The husband conceded in cross examination that he had smashed the laptop in 2014 but also placed this incident at the same time as he destroyed a meal that the wife had prepared for him.
In 2014/February 2015 renovations were undertaken at L Street.
On 21 February 2015 the wife, husband and children moved to L Street.
In 2015 the wife was prescribed Oxycodone. She leaves the children alone at home to go shopping. The husband alleges she has a shopping addiction. On another occasion when the wife had left the children alone in the home, the youngest child microwaved popcorn, leaving the home with smoke damage. The wife said she needed to go shopping. The husband says the wife threatened to poison his meal.
In March 2015 the husband’s nephew and family moved into the M Street property without paying rent.
In January 2016 the middle child was diagnosed with autism (high functioning).
On 3 November 2016 there was an incident where the husband punched a desk and told the wife he was leaving her and he picked up a pair of scissors and approached her saying “don’t piss me off Jen because I swear to God I will fucken kill you” (wife’s affidavit paragraphs 137-139).
In late December 2016 the wife says there was an incident where the husband screamed at her for failing to answer her phone.
On 18 January 2017 the parties and the children holidayed in Asia.
On 19 January 2017 there was an incident in a hotel where the wife says the husband shouted at the daughters and scared them.
The husband asserts that the wife told him in 2017 that “the GP has cut me off Endone”. The wife continued to regularly use Oxycodone. The husband also made allegations about the wife “doctor-shopping” in order to obtain prescription drugs. These assertions were not explored with the wife during her oral evidence. This was not referred to in final submissions.
On 6 March 2017 the parties had an argument. There is controversy about what actually happened. It was agreed that this was the first occasion when the husband physically man-handled the wife who ended up on the ground at the bottom of the driveway at the front of the house. This incident is discussed below.
On 6 March 2017 the parties separated after the incident on that day. The wife says that they had been together 12 years; the husband says that they had cohabited a year before the marriage. At that time the children are 11, nine and almost eight.
After 6 March 2017 the children resided with their mother.
Between 6 March 2017 and January 2018 the husband did not pay any child support.
On 7 March 2017 the wife saw a doctor who noted her injuries.
On 7 March 2017 the police took out a provisional ADVO against the husband. The husband then spent no time with the children until he started seeing them again at school in October 2017.
On 7 March 2017 the mortgage balance was $179,950. The husband then withdrew $92,000 from the mortgage account in five withdrawals and paid $85,000 from the O Business account to an account of his brother, Mr FF Ulbek.
By 15 March 2017 the balance though was $266,181.
On 15 March 2017 the husband withdrew $17,700 from the mortgage account, marked as “solicitor’s advice”.
On 15 March 2017 an interim ADVO was made against the husband.
The husband asserts that in March and April 2017 the wife left the youngest child not supervised appropriately and he left the house unattended. The husband asserts the wife continued to leave the children in the house unattended.
On 26 March 2017 the husband’s nephew and his family moved out of the M Street property.
On 6 April 2017 the husband went to the L Street property to attempt to recover property. This event is discussed in more detail below.
On 20 April 2017 the husband sold shares and transferred further $12,135 to Mr FF Ulbek.
On 3 May 2017 the husband made a police statement.
In mid-May 2017 the husband paid $2,870 to Mr FF Ulbek.
On 6 July 2017 the wife filed the Initiating Application in these proceedings.
During 2017 the husband says he wound down the trading activities of O Business.
On 7 September 2017 the husband filed a Response to the wife’s Initiating Application.
On 21 September 2017 the interim ADVO was listed for contested hearing. The wife was cross examined. The order was not made on a final basis and the interim ADVO was dismissed.
On the following day, 22 September 2017, the husband approached the children’s schools (Suburb N Public School for the girls and JJ Public School for the youngest child) and explained that the ADVO had been dismissed. The husband contacted the wife to attempt to re-engage with the children. Initially the wife agreed but then withdrew her consent.
On 9 October 2017 the girls’ principal agreed for the husband to spend time with the girls at lunch at school. The youngest child’s acting principal agreed for the husband to spend time with him at school.
Between 9 and 30 October 2017 the husband attended the children’s schools almost every day and spent time with them.
On 22 October 2017 the husband went to L Street with Mr EE (he is a friend of the husband; he has recently had a back fusion; a neighbour of the wife; he is on affidavit for the husband). The wife describes this incident at paragraph 196 and refers to it in her summary of argument as a “home invasion”; the husband at paragraph 145. Mr EE at paragraph 6. There was a video taping of this incident which I discuss in more detail below.
In November 2017 the husband attended the girls’ school fete and spent 40 minutes with the eldest child and two hours with the middle child. He walked the girls’ to the wife’s car.
On 8 November 2017 the girls’ principal informed the husband that the middle child only wanted to see her father once a week at school until the court provides for her to be able to spend weekends with him. The principal said that the eldest child wanted to wait until the court decided.
On 9 November 2017 the husband spent time with the youngest child at school.
On 15 November 2017 the husband met with the younger children at their schools.
On 23 November 2017 the husband met with the younger children at their schools.
On 6 December 2017 interim orders were made by Le Poer Trench J:
·The husband and wife were to swap houses by 31 January 2018 with the wife and the children to move to M Street
·The children were to live with their mother and spend supervised with their father during school term on Sundays from 9am to 7pm and after school on Monday and Wednesday until 7pm (that is, the order was for the children to see their father three times a week supervised)
On 12 December 2017 the wife expanded approved supervisors to six more people.
In 2018 the husband annexed nude photographs of the wife to an affidavit. Senior Registrar Campbell struck the affidavit out and had it removed completely from the court file. In the husband’s affidavit he says that his brother Mr FF Ulbek had contacted him to let him know a stranger had sent him these photographs. In cross examination, the husband asserted that it was the wife’s then partner who initiated the contact and who had sent him the photos.
On 12 January 2018 the paternal grandmother assaulted the wife after the wife was asked to leave numerous times by police and failed to do so. The details about this incident are discussed below.
On 13 January 2018 a provisional ADVO was made against the paternal grandmother.
On 22 January 2018 the eldest child, then 11 years of age, sent her father a picture of herself with a nose ring. She said that the wife had let her get one as an early birthday present.
On 24 January 2018 the husband and wife swapped houses with the wife and the children moving to M Street and the husband moving to L Street in accordance with the orders made by Le Poer Trench J.
On 25 January 2018 the husband and wife attended a child inclusive conference.
In early 2018 the husband surrendered the site from which he had formerly carried on the business of O Business.
A child responsive program memorandum was published on 5 February 2018.
On 7 February 2018 the AVO against the paternal grandmother was made on a final basis.
The last time the husband spent time with the children was 4 March 2018 until 28 November 2018. During that nine month period the husband did not see the children apart from three occasions when the youngest child ran away and the husband retained him.
In May 2018 the husband commenced a relationship with Ms IJ.
On 26 May 2018 the youngest child absconded twice in one day whilst in the wife’s care; the first occasion found by a member of the public on D Street and was returned by the husband to the wife. The second occasion he ran away into Mr EE’s home, however he got out and was found by another neighbour Ms AM and returned to the wife.
On 11 June 2018 the youngest child absconded whilst in the wife’s care and was found on KK Street by police and Mr LL. The husband recovered the youngest child and retained him. The husband says that the police told him it was safer for the youngest child to be with him. The husband and wife exchanged various text messages.
On 13 June 2018 the wife filed an Application for a recovery order.
On 29 June 2018 orders were made returning the youngest child to the wife’s care. Dr B was appointed as a single expert. The youngest child was returned to the wife that evening.
In June 2018 the parties were divorced.
On 13 July 2018 the youngest child ran away from the wife’s home again. The husband retained him once more.
On 26 July 2018 Justice Rees made an order directing the husband to return the youngest child to the wife’s care which he does that evening.
On 2 August 2018 the youngest child absconded whilst in the wife’s care and was found by police.
On 1 September 2018 the youngest child absconded whilst in the wife’s care and was found by Mr EE and taken home to the wife.
On 9 September 2018 the youngest child absconded whilst in the wife’s care and was found by Mr and Ms MM on D Street. The husband retained him and refused to return him (for the third time).
On 9 September 2018 the wife went to hospital with a suspected panic attack.
On 20 September 2018 orders were made by the court directing the husband to return the youngest child to the wife’s care.
On 12 November 2018 the husband engaged with NN Service for independent visitation services.
On 28 November 2018 the husband commenced time with the children supervised by NN Service.
Between 28 November 2018 and 10 November 2019 the husband spent time with the younger children supervised by NN Service on 12 occasions. The eldest child also spent eight visits until April 2019 and one visit in September 2019.
On 2 December 2018 the youngest child absconded whilst in the wife’s care.
In 2018 until July 2019 the wife was in a relationship with Mr OO.
On 8 April 2019 Dr B conducted interviews for his report.
In early August 2019 the eldest child posted online an inappropriate sexualised photo of herself.
In late August 2019 the husband was admitted to hospital and in September 2019 underwent heart surgery having a quintuple bypass. The surgery was a success. The husband says he has made a full recovery.
In October 2019 the wife commenced a relationship with Mr PP. They do not cohabit.
On 22 October 2019 Dr B released his single expert report.
On 29 October 2019 the youngest child absconded whilst in the wife’s care and was found by Mr EE.
On 9 November 2019 the youngest child absconded whilst in the wife’s care and was found by police naked on a bridge.
On 4 September 2019 the husband’s lawyers wrote to the wife regarding the eldest child’s use of social media and inappropriate content.
On 11 December 2019 the wife’s solicitor wrote to the husband’s solicitor suggesting Ms IJ supervise the husband’s time with the children. There was further communication in relation to a mutual changeover location.
On 18 December 2019 the husband and Ms IJ attended his solicitor’s office to sign undertakings.
From 20 December 2019 onwards, the husband spent time with the younger children supervised by his partner, Ms IJ.
On 31 December 2019 the eldest child disappeared from the wife’s home and was not found until the next day.
On 3 January 2020 the wife took the eldest child for a mental health assessment.
On 21 January 2020 the youngest child took videos of himself walking by himself to Shopping Centre 1.
In 2020 the eldest child commenced seeing a psychologist, Mr H. He diagnosed her with complex PTSD and major depressive disorder.
In early 2020 the husband’s child support assessment was at nil after he began spending overnight time with the children.
On 20 February 2020 the husband had a telephone conversation with the vice principal of the QQ High School. The husband was informed that the school was reporting the wife to the child welfare authorities in relation to the eldest child’s non-attendance at school.
On 3 March 2020 the husband completed a Adolescent Parenting Program.
On 17 March 2020 the youngest child absconded whilst in the wife’s care and was found on D Street by Mr EE.
On 22 March 2020 Ms IJ refused to continue supervising with the husband asserting that it was due to the wife frequently changing arrangements.
On 25 March 2020 the parties attended a mediation and thereafter the younger children spent more time with their father (commencing two days per fortnight and gradually increasing thereafter). It was agreed that this time be unsupervised.
On 27 March 2020 the day the husband commenced spending unsupervised time with the younger children, the husband made a report to FaCS after viewing a 40 minute live stream of the eldest child engaging in drug and alcohol use.
On 30 March 2020 the husband completed a Managing Anger program.
In May 2020 the husband’s relationship with Ms IJ ended briefly and she moved to Queensland, however they later reconciled.
On 20 July 2020 Mr H wrote a letter advising of the eldest child’s diagnosis of complex PTSD and major depressive disorder.
On 21 July 2020 the youngest child was playing with the middle child’s phone whilst in the care of the husband and the husband saw a picture of the eldest child with a bong. He took the phone off the youngest child and checked the content on the middle child’s phone. It was a phone previously belonging to the eldest child. There were over 8,000 videos and 15,000 photos. The videos and photo content included:
·The eldest child smoking cigarettes, smoking a bong self-harming and drinking alcohol
·The wife smoking in the car with the eldest child
·The wife discussing the proceedings with the eldest child
·The wife telling the eldest child she can provide her with drugs “it is the same shit as marijuana its just you either breathe it in bong or you roll it up and smoke it. It’s the same shit”
·The wife swearing at the youngest child and encouraging him to swear “Don’t touch my mother fucking phone”
On 22 July 2020 the youngest child absconds and is found by a security guard in Shopping Centre 2.
On 25 July 2020 the eldest child drove the wife’s car and crashed it.
On 25 September – 5 October 2020 the younger children were in the husband’s care for 11 days. The wife asserted she had car troubles and illness and had not collected them when she was due to do so on 27 September 2020.
On 14 October 2020 the eldest child was interviewed by the police in relation to taking and crashing the wife’s car.
DISCUSSION ABOUT SPECIFIC ISSUES AND EVENTS
Family violence
There was no occasion prior to the date of the separation where the wife asserted she was actually physically struck or restrained by the husband. She said there was one occasion where he threatened her with a pair of scissors and said he was going to kill her. Most of the violence alleged by the wife against the husband was towards inanimate objects like punching holes in walls; smashing the wife’s laptop and destroying a meal which the wife had prepared for him, and the like. The wife’s evidence in relation to violence towards the children was at times equivocal. She said that she believes some of the physical discipline that the husband administered to the children was on reflection inappropriate even though at the time she did not think it was an assault. The wife was taken to a statement that she had made to the police on the day after the separation, 7 March 2017 (Exhibit 7), which is recorded in a transcript of a record of interview that apparently was on tape and was accepted by the wife’s counsel as an accurate transcript of the tape. In that record of interview the police ask:
[Police officer]: Has [the husband] ever assaulted you previously?
[The Wife]: Ah he’s never laid a hand on me, no
[Police officer]: Has he assaulted your children previously?
[The Wife]: No
[Police officer]:nHas he ever threatened, stalked or intimidated you or your children?
[The Wife]: Er me he threatened, yes
[Police officer]: When you say threatened, what ah, what do you …
[The Wife]: A lot of verbal, ah raising the voice, ah screaming in my face, yeah, threatening to kill me.
[Police officer]: So he has threatened to kill you previously?
[The Wife]: oh yeah yeah
[Police officer]: Ok.
Then a little later:
[Police officer]: Well what are those fears, or what do you think might happen?
[The Wife]: Well I’m scared that, I’m not gonna see them again he’ll probably take them or he’ll keep me from them like he has tonight
[Police officer]: Do you have fears that he may harm them?
[The Wife]: [unintelligible] I don’t know, but, he hasn’t harmed them in the past but the way he, he’s never laid a finger on me before but he did tonight so I don’t know
[Police officer]: Do you have fears, do you have fears that he may harm, harm yourself he may carry out those threats, or er
[The Wife]: yes
[Police officer]: That he made tonight?
[The Wife]: yes
The husband does not deny that he laid hands upon the wife on 6 March 2017. His version is that he took the wife by the shoulders and attempted to march her out of the house to calm her down. He asserts that in the process of doing that, she tried to hit him and he then took her more strongly by the arms and marched her through the house into the garage, using the remote control to open the garage door, when they got to the garage she just ran out, crying and yelling and ran down the driveway which was described as being a 50-60 degree steep driveway. The husband asserts that the wife’s bruises were as a result of her getting to the bottom of the driveway and taking a big leap and falling over. The wife’s version is that the husband propelled her out of the garage causing her to roll down the steep driveway. The wife called the police and the ambulance advised the wife she needed to go to hospital but she did not.
The husband annexes to his affidavit (at paragraph 90) a letter from his criminal lawyers to his family lawyers dated 21 September 2017 (page 56 of the husband’s annexures). The letter details what the husband’s criminal lawyers said was the outcome of the ADVO court proceedings. It appears that the interim ADVO was not extended by the presiding magistrate on the basis of concessions made by police officers and what the magistrate said was inconsistencies in the wife’s evidence.
The husband submits that the wife had no reasonable basis for a belief that he would harm her and accordingly there was no reasonable basis for the wife to withhold the children from the husband in the way that she did.
I find that on 6 March 2017 the husband did man-handle the wife, probably for the first time in their 23 year relationship. Him doing so had a severe emotional impact upon the wife because he had never actually laid a hand on her before, although the husband had engaged in behaviour previously which had caused the wife to be fearful.
The eldest child’s conduct disorder and behaviour
The eldest child smokes tobacco. It seems from the evidence that she probably is addicted to nicotine. There is evidence that she pressures her mother in attempts to obtain cigarettes from her. Her mother insisted that she does not supply the eldest child with cigarettes but says that the eldest child acquires cigarettes from elsewhere and also steals them from her. I have some difficulty in accepting the wife has not, on occasions, provided cigarettes to the eldest child in order to placate her but the text messages that the husband relied upon in his cross examination of the wife ironically demonstrate that she does her best to limit her responses to those demands from the eldest child for tobacco. The wife asserts she has given up smoking herself and no longer has cigarettes in the house.
The wife has fears for the eldest child arising from:
·The eldest child disengagement with school;
·The eldest child smoking tobacco;
·Her suspicion that the eldest child is using cannabis. The wife does not believe that she is into any heavier drug than that, although that belief may be misguided. The husband asserts that “[The eldest child] smokes cigarettes, drinks alcohol, and uses drugs (marijuana and cocaine)” (at paragraph 360). At page 608 of the husband’s affidavit, he annexes a screen shot of a text message where the eldest child has written “My head is full of coke n bad decisions”;
·The eldest child’s involvement in sexual relationships. The wife gave evidence that she had to go up to City RR and retrieve the eldest child who had gone to City RR to live with a relative because she had a “boyfriend” in the City RR area; and
·The eldest child’s body image problems. The wife said that she thought that there was some chance that the eldest child was showing early signs of being anorexic or bulimic or trending towards having some type of eating disorder (this arose from recent indications that the eldest child has an interest in attending a gym and general problems with her body image). The wife said this in response to questions about why she had made a favourable comment (“love you so much my beautiful girl”) in relation to the eldest child posting a picture of herself in a bra and underwear on social media.
The wife gave evidence that the eldest child has not self-harmed herself for several months now.
The wife was asked questions about a video clip that was found on the middle child’s phone by the husband that showed a boy masturbating on a lounge in the wife’s house. This video clip was not tendered in evidence. The wife said that she never saw that video clip and when the middle child’s phone was returned, that video was not on it anymore. The husband’s lawyers wrote a letter about the clip, referring to it being of “a boy”. The husband obviously reported this to the police; the police came and saw the wife about it but no further action was taken about it.
The wife says that she does not touch or monitor any media device in the eldest child’s possession. She said the last time she tried to do that was about 18 months ago and she ended up “black and blue” (a reference to the eldest child assaulting her). For the younger children, she does look at their phones once or twice a month through an account which she controls.
The wife stated that she has tried to get assistance for the eldest child from various sources.
As indicated, the husband accessed 8,000 video clips and 15,000 photographs from an old phone of the eldest child’s which had been handed down to the middle child. The husband gave evidence he had only reviewed 3,000 of the 8,000 video clips but I treat that evidence with considerable caution. There is no suggestion the middle child reviewed these videos or images.
36.That the parents be granted leave to provide a copy of Dr B’s Report to any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by either parent and/or the child/ren.
Y [TO BE MADE NOW]
37.The mother is to ensure that;
a)Y does not consume illegal substances in the presence or view of either Z and/or X;
b)She does not allow any other person to consume illegal substances in the presence or view of either Z and/or X;
c)No person is allowed to smoke inside the home in the presence of either Z and/or X;
d)She does not allow Y, or any other person, to engage in anti-social behaviours including swearing and screaming in the presence or hearing distance of Z and/or X;
e)For a period of six months from the date of the making of these orders, Y does not have any friends present when Z and/or X are in the mother’s care;
f)She does not supply Y with cigarettes or tobacco;
g)She does not keep alcohol in the home;
h)She use her best endeavours to prevent Z viewing Y’s social media platforms and accounts on Z’s phone, by all means including but not limited to accessing Z’s phone account for the purposes of complying with this Order.
Family Law Watch List
38.That until further order each parent, his/her servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, Y (a female) born … 2006, Z (a female) born … 2007 and (a male) born … 2009, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
39.That until further order, the names of the children be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
40.Costs as per the Independent Children’s Lawyer Cost Notice attached.SCHEDULE 3 - parenting orders sought by the husband
PARENTING
1)That the father have sole parental responsibility for the children namely Z born … 2007 and X born … 2009 (collectively referred to as “the children”) in relation to following major decisions relating to care, welfare and development of a long term nature:
(a)Health;
(b)Religious;
(c)Education (both current and future).
2)The mother is to have sole parental responsibility for Y born … 2006 except for Religion.
3)That the parents have equal shared parental responsibility for Z, X and Y in relation to all other major decisions relating to care, welfare and development of a long term nature including but not limited to:
(a)Names;
(b)Change to the children’s living arrangements that make it significantly more difficult to spend time with the other parent;
(c)Issue of Passports;
(d)International travel
(e)Religion of Y.
4)That the parents shall make the decisions about day to day care, welfare and development of the children during periods when the children are in their respective care.
5)In the exercise of sole parental responsibility pursuant to Order 1 herein and excluding circumstances of emergencies, the following shall apply:
(a)The father shall give the mother reasonable notice of any such issue for which a decision needs to be made and all reasonable particulars about the circumstances that give rise to the issue, including the name and contact details of any professional person relevant to the issue;
(b)The father must genuinely consult with the mother about the issue;
(c)The parents will make a genuine effort to come to a joint decision about any such issue;
(d)If, after making a genuine effort to come to a joint decision, the parents reach no agreement, then within 14 days of the father giving the mother notice of the issue, the father will make the decision and inform the mother in writing of the decision and all reasonable particulars of it, including the name and contact person of any relevant professional person.
6)Notwithstanding Order 1, that this Order be irrevocable authority for:
(a)The mother to receive directly from the children’s place(s) of education a copy of all reports, photos (at her cost), newsletters and other documents normally provided to parents;
(b)The mother to participate in parent-teacher interviews at the children’s place(s) of education;
(c)Any medical practitioner or health professional treating the child/ren to provide the mother with all information they are lawfully able to provide about the child/ren.
7)In the exercise of sole parental responsibility pursuant to Order 2 herein and excluding circumstances of emergencies, the following shall apply:
(a)The Mother shall give the father reasonable notice of any such issue for which a decision needs to be made and all reasonable particulars about the circumstances that give rise to the issue, including the name and contact details of any professional person relevant to the issue;
(b)The mother must genuinely consult with the father about the issue;
(c)The parents will make a genuine effort to come to a joint decision about any such issue;
(d)If, after making a genuine effort to come to a joint decision, the parents reach no agreement, then within 14 days of the mother giving the father notice of the issue, the mother will make the decision and inform the father in writing of the decision and all reasonable particulars of it, including the name and contact person of any relevant professional person.
8)Notwithstanding Order 2, that this Order be irrevocable authority for:
(a)The father to receive directly from the Y’s place(s) of education a copy of all reports, photos (at his cost), newsletters and other documents normally provided to parents;
(b)The father to participate in parent-teacher interviews at the Y’s place(s) of education;
(c)Any medical practitioner or health professional treating the Y to provide the father with all information they are lawfully able to provide about Y.
Live With, Spend Time and Communication
9)The children Z and X live with the father.
10)The child Y is to live with the mother.
11)That Y spend time with the father is accordance with her wishes.
12)That X and Z spend time with the mother as follows:
(a)For a period of six months,
(b)Week one - Saturday and Sunday from 11:00am until 6:00pm;
(c)Week two – Saturday from 11:00am to 6:00pm.
13)Thereafter for a period of six months from the conclusion of school (or 11.00am on a non-school day) Friday until the commencement of school (or 7.00pm on a non-school day) Monday.
14)Thereafter each alternate week during school terms from the conclusion of school (or 11.00am on a non-school day) Thursday until the commencement of school (or 7.00pm on a non-school day) Tuesday.
School Holidays
15)During all school holiday periods following the commencement of the mothers time with the children referred to at Order 9(c) herein shall be on a week about basis commencing on the first weekend and every alternate weekend thereafter from 11.00am Saturday until 11.00am the following Saturday (or the commencement of school on the first day requiring student attendance).
Changeover
16)That where changeover does not occur at school, to facilitate changeover the Mother shall collect the children from 7/11 Suburb V at the commencement of her time with the Children and return the children to 7/11 Suburb V at the conclusion of her time with the Children.
Special Occasion Time
17)That notwithstanding any Order to the contrary, the children spend time with the Mother on the following occasions:
(a)On the weekend of Mother’s Day from the conclusion of school Friday (or 3.00pm on a non-school day) until the commencement of school (or 9.00am on a non-school day) Monday;
(b)On Christmas Eve from 9:00am until 7:00pm Boxing Day in each odd numbered years;
(c)On Easter from 3:00pm on Thursday (immediately preceding Good Friday) until 9:00am on Easter Saturday in each even numbered years and from 9:00am on Easter Saturday until 9:00am Easter Monday in each odd numbered years.
(d)On Orthodox Christmas each year from 9:00am 7 January until 9:00am 9 January;
(e)On Orthodox Easter period of three consecutive days from 9:00am on the first day until 7:00pm on the last day provided the Mother has given the Father no less than fourteen days (14) written notice of the nominated days (before the first day);
(f)In the event that the Children are not otherwise in the Mothers care on the Mother’s birthday on 3 July from then the children will spend time with the Mother from the conclusion of school until 7:00pm if a school day or 9:00am until 2:00pm if a non-school day with all children being present.
(g)In the event that the Children are not otherwise in the Mothers care on the Children's birthday then the children will spend time with the Mother from the conclusion of school until 7:00pm if a school day or from 9:00am to 7:00pm if a non-school day with all children being present.
(h)Any other times as agreed between the parents in writing.
18)That notwithstanding any Order to the contrary, the children are to be in the Father’s care on the following occasions:
(a)On the weekend of Father’s Day from the conclusion of school Friday (or 3:00pm on a non-school day) until the commencement of school (or 9:00am on a non-school day) Monday;
(b)On Christmas Eve from 9:00am until 7:00pm Boxing Day in each even numbered years;
(c)On Easter from 3:00pm Thursday (immediately preceding Good Friday) until 9:00am on Easter Saturday in each odd numbered years and from 9:00am on Easter Saturday until 9:00am Easter Monday in each even numbered years.
(d)On Ramadan each year during the last six days as nominated by the Father and provided the Father has given the Mother no less than fourteen (14) days written notice. With such time commencing from the conclusion of school (or 3.00pm on a non-school day) on the first day of Ramadan until 7:00pm on the last day of Ramadan.
(e)On Eid each year for the first three days as nominated by the Father and provided the Father has given the Mother no less than fourteen (14) days written notice. With such time commencing from the conclusion of school (or 3.00pm on a non-school day) on the first day of Eid until 7:00pm on the third day of Eid.
(f)In the event that the Children are not otherwise in the Fathers care on the Father’s birthday on … from then the children will spend time with the Father from the conclusion of school until 7:00pm if a school day or 9:00am until 2:00pm if a non-school day with all children being present.
(g)In the event that the Children are not otherwise in the Fathers care on the Children's birthday then the children will spend time with the Father from the conclusion of school until 7:00pm if a school day or from 9:00am to 2:00pm if a non-school day with all children being present.
(h)On each New Year’s Eve from 3:00pm New Year’s Eve until 3:00pm New Year’s Day.
(i)Any other times as agreed between the parents in writing.
Telephone Communication
19)The mother is at liberty to contact the children by telephone or other electronic means on two occasions per week being Tuesday's and Thursday's between 6:00-6:30pm. The mother is so notify the father half an hour before each designated call to the children via text message to ensure the children's availability. With the mother to initiate the call to the children by calling the fathers mobile number.
General
20)The parents shall do all acts and things necessary to ensure that X attends all allied health related appointments scheduled whilst the children are in their care.
21)That within seven (7) days of the date of Orders, each parent is to purchase an ID bracelet for X and ensure that at all times whilst X is in their respective care that he is wearing his ID bracelet with both parent's telephone numbers listed. Each parent is to notify the other parent in the event X absconds in their care.
22)That each parent be at liberty to attend the children’s place/s of education or extracurricular activities for special occasions or events in which parents are explicitly invited to attend AND that the parents otherwise be restrained by injunction from attending upon the same without the written consent of the parent in whose care the children are in at that time.
23)Each parent is to advise the other of any change in telephone contact details forthwith upon any change.
24)In the event that any of the children suffer a medical emergency or significant illness in either parent’s care, that parent shall advise the other parent via text message at first available opportunity of the following:
(a)The nature of the medical emergency;
(b)The name, telephone number, and address of any medical practitioner or health care professional who has provided treatment to the children;
(c)Diagnosis received;
(d)Prognosis;
(e)The details of any medication that has been prescribed for the child that needs to be taken while the child is in the care of the other parent;
(f)Treatment rendered.
25)That within 7 days of the date of Orders the mother provide to the father in writing by email the details and contact numbers of all medical practitioners, psychologists, respite care companies and other third parties associated with the care of the children whilst they were in the care of the mother.
Restraints and Injunctions
26)Without admissions, both parents be restrained by injunction from:
(a)hitting, slapping or physically chastising any of the children, threatening to do so or permitting any other person to do so;
(b)operating a motor vehicle within which any of the children are travelling or taking X and/or Z outside their home in their own sole care whilst pain medications or other medications are causing any subjective experience of sedation, disrupted focus and/or alertness;
(c)Criticising or denigrating the other parent, the other parent’s partner, members of the other parent’s family and/or household in the presence or hearing of the children, and they shall both use their best endeavours to ensure that no other third party does so;
(d)Speaking or permitting any other person to speak to or about the other parent, the other parent’s partner, the other parent’s household or the other parent’s family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
27)That the parties be restrained by injunction from allowing the Children to come into contact with the mother’s father Mr E under any circumstances.
28)That the parties be restrained by injunction from allowing the Children to come into contact with the mother’s cousin’s husband Mr F under any circumstances.
Treatment, Therapy and Support
29)That within seven (7) days from the date of the making of these orders the mother shall contact AA Services on … and do all things necessary including signing any documents, to ensure that Y and the mother engage with that service. The mother is to ensure that Y attends all appointments as scheduled by that service.
30)The father is to be notified by the mother when treatment commences at AA Services and subsequent appointments and attendance in writing.
31)These orders serve as authority for the father to be able to participate in any appointments as requested by workers of AA Services.
32)These orders serve as authority for the father AND Dr B to speak to workers from AA Services when requested by workers from that service or at the request of the father.
33)The Independent Children’s Lawyer have liberty to provide to AA Services the following documents;
(a)Copy of these orders and any reasons for judgement;
(b)The expert report prepared by Dr B.
34)That the mother shall:
(a)Forthwith do all acts and things to engage with the G Pain Service at the earliest available appointment, and thereafter co-operate with the assessment and comply with all recommendations made by such service including to any subsequent treatment.
(b)Where at all possible the Mother is to engage with the same doctor at the G Pain Service;
(c)For at least 12 months following the making of these Orders and otherwise whilst ever the mother continues to take regular analgesic medication, make pre-emptive appointments at regular intervals (with such frequency to corresponded with her analgesic prescription renewal/s) so far as is practicable with the same General Practitioner in accordance with the recommendations made at paragraphs 768 of Dr B’s Report AND that the mother be granted leave to provide such practitioner with copies of the following:
i) Dr B’s Report;
ii) Any final Orders made and written reasons for judgment in these proceedings.
35)The mother is to engage in individual therapy for a period of not less than 12 months so as to address her anxiety, depression and personality vulnerabilities as outlined at paragraph 768.4 of Dr B’s report, with a psychologist at G Pain Service. The mother is to co-operate with the assessment and comply with all recommendations made by such therapist including but not limited to attending all scheduled appointments.
36)In the event that the mother is unable to engage with a therapist pursuant to Order 29, the mother is to attend upon her General Medical Practitioner and obtain a referral under a mental health care plan for her to engage with a therapist under the same conditions as per order 29.
37)That the mother is granted leave to provide any therapist with copies of the following:
(a)Dr B’s Report;
(b)Any final Orders made and written reasons for judgment in these proceedings.
38)The father, the mother and the children (separately and/or together in accordance with the advice of the therapist), shall do all things necessary to engage in therapy with J Service in accordance with the recommendation made at paragraph 773 of Dr B’s Report AND for the purpose of the therapy, the mother and father shall:
(a)Obtain any available mental health plans for the children and themselves to engage in the therapy;
(b)Attend upon the therapist at a regular frequency for at least 12 months after the making of these Orders;
(c)Thereafter attend upon the therapist at such frequency as is recommended by the therapist;
(d)Follow all reasonable recommendations made by the therapist;
(e)Ensure the children attend upon the therapist at such frequency as is recommended by the therapist;
(f)Ensure that the children follow all reasonable recommendations made by the therapist;
(g)Ensure that the children engage in additional therapy with an alternate service in accordance with any recommendations made by the therapist
AND that the parents are granted leave to provide such therapist, and that they shall, to provide such therapist with copies of the following:
(h)Dr B’s Report;
(i)Any final Orders made and written reasons for judgment.
39)That this Order be irrevocable authority for:
(a)the practitioner referred to at Order 33 to discuss such therapy with:
(b)Dr B;
(c)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by either parent and/or the child/ren;
(d)The children’s place(s) of education.
(e)the children’s place(s) of education to discuss the children’s progress with the following persons:
(f)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by either parent and/or the child/ren;
(g)Any therapist, psychologist, social worker, psychiatrist or mental health practitioner attended upon by the child/ren to discuss such therapy with:
i) Dr B;
ii) the children’s place(s) of education;
iii) Any therapist providing counselling to the parent/s or child/ren
40)That the parents be granted leave to provide a copy of Dr B’s Report and these Orders to any therapist, psychologist, social worker, psychiatrist, mental health practitioner, educational services and support services attended upon by either parent and/or the child/ren.
Y
41)The mother is to ensure that;
(a)Y does not consume illegal substances in the presence or view of either Z and/or X;
(b)She does not allow any other person to consume illegal substances in the presence or view of either Z and/or X;
(c)No person is allowed to smoke inside the home in the presence of either Z X and/or Y.
(d)Y does not smoke in the presence of either Z and/or X;
(e)She does not allow Y, or any other person, to engage in anti-social behaviours including swearing, screaming, and sexualised behaviours in the presence or hearing distance of Z and/or X;
(f)For a period of six months from the date of the making of these orders, does not have any friends present when Z and/or X are in the mother’s care;
42)Costs as per the Independent Children’s Lawyer Cost Notice attached
NOTATION: It is the fathers wish that following Y participation in treatment therapy and support programs as referred to in these orders, that Y will spend time with the father that will progress to a shared care arrangement.
SCHEDULE 4 – property orders sought by the wife
1.That within seven (7) days from the making of these Orders, the Wife, Husband, Ms R Ulbek and Mr S Ulbek shall do all acts and things to cause the sum of $35,000.00 (thirty-five thousand dollars) held in the trust account of Kells The Lawyers (pursuant to Orders made by the Honourable Justice Watts on 23 October 2020) to be released to the Wife payable to Rossi Simicic Lawyers AND that this Order acts as authority for Kells The Lawyers to make such payment.
2.That within 42 days from the date of these Orders, the Wife sign all documents and do all things necessary to transfer to Husband all her right title and interest in the property known as L Street, Suburb N, NSW being all of Lot … in Deposited Plan … (“the L Street property”).
3.That contemporaneously with the transfer set out above:
(a) The Husband shall pay to the Wife the sum of $90,000.00 (ninety thousand dollars) payable to Rossi Simicic Lawyers.
(b) The Wife, Husband, Ms R Ulbek and Mr S Ulbek shall do all acts and things to discharge the loan the Westpac loan currently secured against the L Street property (“the mortgage”) and that the Husband, Ms R Ulbek and Mr S Ulbek do all things to replace the mortgage with a mortgage in their sole names.
4.That in the event the Husband, Ms R Ulbek or Mr S Ulbek do not comply with their obligations pursuant to Order 31 of the Property Orders made herein, Wife, Husband, Ms R Ulbek and Mr S Ulbek shall do all acts and things necessary to cause the L Street property to be sold by private treaty at the earliest available date at a price to be agreed on between the parties and failing agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the said sale be disbursed in the following order and priority:-
(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Payment of any money due and owing to the mortgage;
(c) The payment necessary to adjust for any counsel and/or water rates;
(d) The net balance to be divided between the parties as follows:
(i) $90,000 (or such amount that remains outstanding) to the Wife payable to Rossi Simicic Lawyers (together with interest in accordance with Rule 17.03 of the Family Law Rules 2004, calculated from the date payment was required to be made until the date the payment is received by Rossi Simicic Lawyers);
(ii) The balance to the Husband, Ms R Ulbek and Mr S Ulbek
5.That in the event that the L Street property fails to be sold by private treaty within a period of two (2) calendar months of being listed for sale, then Wife, Husband, Ms R Ulbek and Mr S Ulbek shall do all acts and things necessary and execute all necessary documents to cause the L Street property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the said sale be disbursed in accordance with Order 32 of the Property Orders made herein.
6.That pending either transfer of the L Street property to the Husband, or settlement of the sale of the L Street property:
(a) The Husband, Ms R Ulbek and Mr S Ulbek shall be responsible for payment of
i. The repayments required to be made to the mortgage;
ii. Rates payable on the L Street property;
(b) The Wife be indemnified from and against the Westpac mortgage secured against the L Street property.
7.That the wife be solely entitled to:
(a) The property at M Street, Suburb N, New South Wales;
(b) Jewellery in her possession;
(c) Her bank accounts;
(d) Her superannuation
8.That the husband be solely entitled to:
(a) His Motor vehicle 1;
(b) The business trading as O Business;
(c) His bank accounts;
(d) His superannuation.
9.That the husband indemnify and keep indemnified the wife from and against all of the following liabilities past, present and future:
(a) Moneys outstanding to
i. Ms AQ;
ii. AD Company.
10.That the husband indemnify and keep indemnified the wife from and against all of the following liabilities past, present and future:
(a)Moneys outstanding to
i.Mr FF Ulbek;
ii.Mr AK;
iii.Mr GG Ulbek;
iv.Mr AC;
v.Mr ZZ;
vi.AB Business.
(b)Liabilities arising from the Husband’s business trading as O Business.
11.That other than as otherwise set out in these Orders, the Wife and Husband have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
12.That the Wife, Husband, Ms R Ulbek and Mr S Ulbek do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein. That in the event that the Wife, Husband, Ms R Ulbek or Mr S Ulbek refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument and to do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar of the Court shall be satisfied upon Affidavit evidence of the party alleging the refusal or neglect that a party is in breach of these Orders.
SCHEDULE 5 – property orders sought by the husband
1.That within twenty eight (28) days of these orders and simultaneously with Order 21 the Wife make a payment to the Husband of such sum as is necessary to effect an overall matrimonial property division of 65% to the Husband and 35% to the Wife. Noting that the matrimonial property pool is as set out in the balance sheet annexed to the Husband’s Case Outline document dated 27 October 2020 being Exhibit 3”
2.That within twenty eight (28) days from the date of these Orders, the Wife will do all acts and things and sign all such documents necessary to transfer to the Husband all her right, title and interest in the L Street Property and thereafter the Husband shall indemnify the Wife and forever keep her indemnified against any liability in respect of the L Street Property including, but not limited to, the payment of water and council rates, land tax and insurance payments.
3.That within twenty eight (28) days of the date of these Orders and simultaneously with Order [2], the parties shall do all acts and things and sign all documents as may be necessary to discharge the mortgage loan secured over their share of the L Street Property.
4.That within twenty eight (28) days of the date of these Orders and simultaneously with Order [2], the Husband shall do all acts and things and sign all documents as may be necessary to refinance into his sole name the mortgage loan secured over the L Street property and thereafter the Husband shall be responsible solely for the repayments of all money due and payable under the mortgage and shall indemnify the Wife and forever keep her indemnified in respect of such liabilities.
5.That the Wife pay the Husbands costs of and incidental to these proceedings.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Jurisdiction
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Costs
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Remedies
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Injunction
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Fiduciary Duty
0
0
2