PRAIN & LEVY

FAMILY COURT OF AUSTRALIA

PRAIN & LEVY

[2011] FamCA 745

FAMILY LAW – CHILDREN – Whether children’s time with husband should be supervised – Appropriate steps for gradual increase in time children spend with husband including progression to overnight time – Arrangements for the Jewish High Holidays – Orders made for children to spend unsupervised time with husband – Children’s increased time including progression to overnight time in accordance with recommendations of family report writer – Parties reached agreement as to the Jewish High Holidays

FAMILY LAW – PROPERTY – HOGAN ORDER – Determination that it is just that husband be provided $250,000 for litigation funding and that such be characterised at the trial as an addback against husband

Family Law Act 1975 (Cth) s 60CC, s 79

A & A (1988) FLC 92-800
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92-378
Russell & Close [1993] FamCA 62
Strahan & Strahan (2011) FLC 93-466
Zschokke & Zschokke (1993) FLC 92-693

APPLICANT:

Mr Prain

RESPONDENT:

Ms B Levy

FILE NUMBER:

MLC

3288

2011

DATE DELIVERED:

14 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

O’Reilly J

HEARING DATE:

12 and 13 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC with him Ms Stewart

SOLICITOR FOR THE APPLICANT:

Ms Grobtuch

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC with him Ms Johns

SOLICITOR FOR THE RESPONDENT:

Mr Teasdale
Kenna Teasdale

Orders

IT IS ORDERED UNTIL FURTHER ORDER

Parenting orders

The interim parenting orders made on 1 June 2011 be varied so that paragraphs 3 and 5.1 no longer operate and the children spend time with the husband unsupervised at all such times as the parties may agree but failing agreement as follows:
a.for four weeks commencing next Monday:
i.       each Monday and Wednesday from 5.30pm until 6.30pm
ii.      each alternate Saturday from 9.00am until 6.30pm
iii.    each alternate Sunday from 9.30am until 4.30pm
b.for the following eight weeks:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on weekends in a two weekly cycle:
A.from 5.00pm Saturday until 4.30pm Sunday on the first weekend
B. from 9.30am until 4.30pm Sunday on the second weekend
c. following that, until the commencement of Term 1 2012:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on weekends in a two weekly cycle:
A.from after school Friday until 6.30pm Saturday on the first weekend
B. from 5.00pm Saturday until 4.30pm Sunday on the second weekend
d. following that, from the commencement of Term 1 2012 until the review referred to in paragraph 3 of these orders:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on alternate weekends from after school Friday until 4.30pm Sunday.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

In relation to High Jewish Holidays, in the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

Family report

The parties arrange for Ms Z to provide an updated family report by 30 May 2012 for the purpose of a review of the interim parenting orders after the receipt of that report.

AND IT IS FURTHER ORDERED

Litigation funding

The wife provide litigation funding to the husband of $250,000 to be paid into the husband’s solicitor’s trust account within 21 days, such sum to be used solely for the husband’s litigation costs past and future, including for any forensic report/s and/or valuations he may seek, up to and including the conclusion of a mediation in the matter to be scheduled by the parties in relation to both parenting and property issues, this amount to be characterised at the trial as an addback against the husband.

AND IT IS FURTHER ORDERED

Spousal maintenance

The husband’s application for spousal maintenance $6500 per week be listed before Registrar FitzGibbon on a date to be arranged between the parties and the Court, or otherwise before a judge as may be directed by the Honourable Justice Cronin as the Case Management Judge.

AND IT IS FURTHER ORDERED

The original minute of orders signed by the parties be placed and kept on the Court file.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable for the parties to brief Counsel, including Queen’s Counsel and two Counsel.

Annexure A

The husband spend time with the children of the marriage on the High Jewish Holidays as follows:
a.   on 29 September 2011 from 6.00pm until 10.00pm (and the husband’s time be suspended on 28 September 2011 for Rosh Hashanah)
b.   on 30 September 2011 from 9.00am until 4.30pm
c.   on 7 April 2012 from 5.00pm until 10.00pm
AND THE COURT NOTES
A.   The husband will have all of Yom Kippur in 2012 and the first night of Rosh Hashanah in 2012 and the parties agree in principle that the high holidays will be shared.

IT IS NOTED that publication of this judgment under the pseudonym Prain & Levy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3288 of 2011

Mr Prain

Applicant

And

Ms B Levy

Respondent

REASONS FOR JUDGMENT

Applications

The interim applications for determination concern variation of existing interim parenting orders and litigation funding for the husband.

Background

The parties married in 1999.
They separated on 15 May 2010. They have four children, J 10 years, C 8 years, D 6 years, nearly 7 years, and N 4 years.
There are parenting and property proceedings on foot, commenced by the husband on 18 April 2011.

Parenting proceedings

The children have lived with the wife since separation and spent only supervised time with the husband. This has occurred in two phases, at first, from separation until 1 June 2011, as agreed between the parties, and from 1 June 2011 to date, pursuant to orders made on 1 June 2011, on 2 afternoons in each week 5.00pm until 6.30pm, on alternate Saturdays 9.00am until 6.30pm and alternate Sundays 9.30am until 4.30pm. The supervision has been by a nanny, Ms O, but with provision for another person if agreed.
The parties seek resolution at present on the interim basis of 3 matters concerning the parenting orders:
a.      whether the children’s time with the husband should continue to be supervised or be unsupervised
b.      the steps for gradual increase of time, in particular when it should progress to overnight time and the periods or intervals for each step
c.      arrangements between the parties for the Jewish Holidays, in particular the Jewish High Holidays.

Best interests principle

The resolution of these matters requires a determination of the outcome which will be in the children’s best interests by reference to the s 60CC factors, in the context of the parties’ proposals and other matters: Goode & Goode (2006) FLC 93-286 at [81], [82]. However, in this particular case, as the issues for determination are discrete, it is necessary to refer to the s 60CC factors only in so far as may be relevant.
The existing interim parenting orders, which were made by consent, provide that the parties have equal shared parental responsibility for the children and that the children live with the wife.
The parties do not propose any change to those orders on the interim basis. Hence, it is not necessary to consider, at this stage, either an equal time order or a substantial and significant time order.

Supervision

The aspect of supervision requires consideration of the matters in s 60CC(2), namely the “twin pillars” of the benefit to the children of having a meaningful relationship with the husband and the need to protect them from physical or psychological harm by being subjected to or exposed to abuse neglect or family violence.
The husband seeks that from now on his time with the children be unsupervised.
The wife seeks that the supervision continue.
The genesis of the supervision regime is well documented in the material. The husband, in April 2010, consulted with a Professor G in Los Angeles. A diagnosis of depression was made, and Zoloft prescribed. There had been 2 previous episodes of depression, one about 10 years beforehand and one about 5 years beforehand, the material including that from these earlier episodes the husband had made spontaneous recovery.
When the parties returned to Australia, the wife’s father arranged for the husband to see Professor T, psychiatrist, who saw him first on 21 May 2010, and who has had longitudinal involvement now with the husband for more than 14 months, initially fortnightly, until September 2010, then monthly. Professor T, however, arranged also for the husband to see Professor K, clinical psychologist, initially intermittently, but from September 2010 onwards weekly.
Professor T, whose impressive curriculum vitae is annexed to his affidavit filed 20 May 2011, has provided 3 reports concerning the husband.
In the first report, 17 September 2010, Professor T said that as of that date the husband “appeared to have made good progress in terms of his recovery from his depressive episode”, as a result of the pharmacological treatment combined with the psychological counselling by Professor K and himself. Professor T expressed the view that the husband’s clinical state, as at that date, was that:
…he poses no risk to his children in terms of access and he is fit and well enough to have unsupervised access for greater than the current six hours per week.
In his second report, 6 May 2011, Professor T said he had seen the husband 9 more times, that the husband’s antidepressant was changed from Zoloft to Lexapro, on which “he is now stabilized” and said:
…His clinical depression is being successfully managed and as I stated in my previous report I see his mental status as stable and that he poses no risk to his children in terms of unsupervised access to them.
Professor T, like Professor K, has rooms at Y Clinic. He said that the husband continues to see Professor K on the weekly basis and that Professor K “also believes he [the husband] has made considerable gains”.
In this third report, 22 July 2011, Professor T responded to specific questions put to him in a letter 19 July 2011 from the husband’s solicitors, such that the third report not only was more detailed but contained historical reference. Professor T referred to Professor G’s report, noting consistency of history given to Professor G and to himself, but noting that whilst Professor G had diagnosed ADHD, Professor T did not agree with that diagnosis.
Professor T said that whilst on mental state examination of the husband he noted “some personality characteristics of a dependant type”:
The diagnosis is clearly major depression, as defined in DSM IV with some suggestion initially that he might have a bipolar II tendency. However, I’m no longer of this opinion on this latter diagnosis. He has clearly responded to the Zoloft and my advice to him was to continue it at the then dose of 150mg per day. I also suggested that it might be worthwhile linking him up with a psychologist, and I referred him to [Professor K] who he has been seeing weekly for counselling.
Clearly enough, that paragraph has historical reference.
Professor T said further:
[The husband’s] mood has returned to normal and he has experienced no upward swings in mood as a result of treatment and to my observation [the husband’s] clinical state is now stable and he is coping with the stresses relating to his marital situation and restricted access to his children as well as unemployment. To my knowledge, [the husband] has been compliant with all treatment advice including restricting his consumption of alcohol. I consider him to have major depression now successfully treated with antidepressants.
…
His prognosis is good in that his condition has stabilized but he requires ongoing medication into the future for at least 5 years and possibly indefinitely. I continue to see him on a 6-weekly basis to monitor medication, and [Professor K] is seeing him weekly.
…
[The husband’s] current clinical state is such that, as far as I can see, he is fit and well enough to have unsupervised access to his children and poses minimal risk to his children’s welfare. In her affidavit, his wife raises a number of issues re [the husband’s] parenting abilities and her concern about these.
These differ from [the husband’s] views about this and I am in no position to make a judgement on which is correct only to comment on his improved clinical state.
…
…I think that extension of time [the husband] spends with his children would not pose an unacceptable risk to his children’s welfare.
8.1    I did describe his condition as being one of major depression with low grade anxiety and a suggestion that he might have bipolar II. However since this discussion, I no longer am of the view that he has bipolar II as there has been no evidence of this in my 14 months of treatment. I said [Professor G], the American psychiatrist, had suggested he might have had ADHD but I did not agree.
…
8.4    … In response I conceded that on rare occasions some patients with medication-controlled depression have deteriorated in circumstances where they come off medication suddenly and without supervision.
8.5    A psychiatrist is to a large extent dependent on the information that his patient gives him but however I also had corroborative evidence from his stepfather and brother to justify my conclusion as well as [Professor K’s] observation. I had been given information by her husband which his wife informed me was not true. If some of the allegations made in the affidavit are true they could obviously influence my opinion but I am in no position to judge between two versions of events. I can only comment on my observations of my patient’s clinical mood state and this is determining my judgement on the low risk that [the husband] poses to his children.
…
9.      … I have no doubt that [the husband’s] condition impacted on his children, however his condition is now improved.
10.    In the 14 months I have been treating him I have seen no evidence of suicidal tendencies, consequently I can not see why contact needs to continue to be supervised. However if suicidal tendencies were present then continued supervision would be appropriate.
11.    My comments on these impressions are:
(i)Her husband does have major depression.
(ii)These illnesses can be treated but such conditions can recur but also can be controlled. Antidepressants will be required for a long period but not necessarily for the rest of his life.
(iii)As mentioned above whilst the majority of information is gained from the patient I have additional corroborative information. It is possible however that the patient’s reports may not be entirely truthful or comprehensive. I have now had the benefit of longitudinal observations over 14 months and therefore am more confident of the long-term improvement.
(iv)The success of treatment is dependent upon the patient monitoring his treatment which he has taken reliably according to his reports to me and also supported by his regular attendance to all his healthcare appointments and the fact he presents as stable.
(v)Prediction of the future is difficult and while relapse on treatment is very unusual, it is impossible to give a guarantee that it will not occur.
Professor K, in a report 8 September 2011, said:
[The husband’s] primary diagnosis is depression as defined in the Diagnostic Statistical Manual of Mental Disorders (DSM-IV-TR-2000). His condition is mild in presentation, is non-compromising and stable. He is presently taking 10mg Lexapro, an anti-depressant, with the treatment being managed by [Professor T]. His prognosis is favourable. His condition will not impact upon his ability to be an effective father to his children regardless of access arrangements.
In reply to the allegations by [the wife] regarding the consultations with [the wife] and her father, […] on 12 October 2010:
8.The diagnosis “bipolar” was given by those attending the consultation. Neither party were aware of the diagnostic criteria for this disorder
…
10.No – The attendees have clearly taken the discussion of denial out of context. It was the attendees who were in denial.
…
15.[The wife’s] impressions are only her impressions. The reality is that [the husband’s] life is not compromised by his mild depressive illness regardless of her impressions.
Ms Z, the family report writer, is also a psychologist. Her curriculum vitae shows extensive experience. In her family report 22 August 2011, she referred to interviews with the husband on 22 July 2011 and 10 August 2011, and to collateral material including the first 2 reports of Professor T (both annexed to the one affidavit described in the list of material provided to her). She noted that the husband’s parenting is “somewhat untested” because he has not had a primary carer role (par 43) and because he has had a “limited” parenting role (par 43); and referred to the supervision issue at pars 4, 6 and 7, and then in her “Evaluation” section at pars 37, 47 and 51.
In par 47, Ms Z said she has “considered” the assessment of Professor T, and “notes” his opinion that supervision is “unnecessary at this time”; and at par 51 set out her recommendation that the children’s time with the husband be unsupervised.
I have the impression, however, from the structure and content of the family report, that Ms Z formulated her recommendation on the basis of Professor T’s opinion, rather than herself undertaking fresh psychological assessment. Indeed, although Ms Z is a psychologist, psychiatric or psychological assessment was not her role in preparing the family report. I have no doubt, however, that if Ms Z had noticed anything in her interviews with the husband at odds with Professor T’s opinion she would have said so.
Against the strong evidence of Professor T and Professor K, Mr Ackman QC, for the wife, mounted the argument that objectively the wife’s evidence provides strong opinion by her that the children would be likely to be at risk in the husband’s care unsupervised, such that the time the children should spend with the husband be supervised; that, as explained in and justified by her evidence, her strong opinion is reasonably held; and that the experts’ opinions are untested in cross-examination; such that I should prefer the wife’s first hand evidence and opinion that the children would be likely to be at risk in the husband’s care in unsupervised time; rather than preferring the untested opinions of the experts.
Mr Ackman referred to the wife’s parenting capacity, in light of her firmly held views, but denounced any reliance on the Russell & Close principle: Russell & Close [1993] FamCA 62, as discussed in the leading authority A & A (1988) FLC 92-800 at 3.27-3.29:
3.27It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692, which has some similarities with this case.
3.28If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
3.29It appears to us that his Honour’s approaches confused these two aspects. The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance. The approach of his Honour of determining whether the wife had a genuine and objectively valid belief in the events giving rise to her concerns is to confuse these two separate issues. The result is, in our view, that his Honour’s approach was erroneous.

Indeed, not only did Mr Ackman denounce any reliance on the Russell & Close principle, even if he had wished to rely on it he presented no expert evidence that the wife’s parenting capacity would be affected in the manner described in A & A so as to impinge upon the children’s best interests.
Rather, Mr Ackman’s submission was limited to the context I have stated, namely that objectively the wife’s evidence as the children’s mother that unsupervised time would not be in their best interests should be preferred to the experts’ opinions and in the balance be given greater weight.
This was Mr Ackman’s principal submission.
It is not necessary for me to set out or summarise all of Mr Ackman’s other careful submissions on this matter. They will be available on transcript if required and also by reference to Mr Ackman’s written submissions. It is sufficient to say that all of Mr Ackman’s submissions were “linked” to his principal submission, including in relation to the mother’s concerns as to the husband’s lack of parenting skills and experience with the children’s needs.
The difficulty I have with Mr Ackman’s principal submission is twofold.
First, the wife’s evidence also is yet untested in cross-examination as to the foundation for her opinion, in particular as to whether it may have substance, or be unwarranted as overly cautious.
The wife’s opinion is sourced in her affidavit filed 27 May 2011 pars 2 (nn) -(zz), (ooo), (sss) and (uuu); 4-12 and 18-19. Based upon the matters exhaustively referred to in the earlier paragraphs mentioned, the wife said at par 18 and 19:
18.I am concerned to ensure that my children are properly and adequately looked after whilst with my husband, and as there are still doubts as to his ongoing medical condition, the welfare and best interests of the children, not to mention their safety, is best served by the modest supervision which is presently arranged, and with which my husband has complied since our separation. Reassurance from the medical specialists as to the safety and wellbeing of the children, as well as that of my husband, is integral in the ongoing contact arrangements which will be made. A full and comprehensive report as to my husband’s relationship with the children, and my relationship with them, will also need to be provided.
19.I therefore respectfully request that this Honourable Court make no order as sought by my husband in relation to either the children, or ongoing time spent with the children, until proper and adequate medical, psychological and counselling reports are obtained.
The wife’s affidavit filed 5 September 2011, plainly after the interim orders made on 1 June 2011, which orders were made by consent, provided her evidence as to events of concern to her since then: pars 4-46. Based on those matters and the matters in her earlier affidavit she further expressed her opinion on the matter at pars 7 and 45:
7.Since our separation, as a result of the husband’s history of mental illness, I have been concerned as to his ability to provide a safe and secure environment for the children. It is as a result of those concerns that the Orders included a provision that the husband’s time with the children be supervised.
…
45.…I continue to be concerned that the husband’s mental health issues are distorting his decision making, his capacity to appreciate consequences, and his ability to care for the children. Consequently, I seek orders that the husband’s time with the children continue to be supervised.
The wife’s concerns are wide ranging, including evidence of the children reporting to her inappropriate things the husband is alleged to have said to the children eg “Dad told me why he can’t look after us because Grandpa took all his money away”, and “Dad said Grandpa is mean and tells lies”; allegations of aggressive and abusive approach towards her; that the husband has little insight as to the impact of his behaviour on her and to the children; inability to maintain the children’s routines and dietary needs; and other matters.
However, a cursory glance at some of the husband’s criticisms of the matters of complaint by the wife show that perhaps in many circumstances she may be seeking to have a “controlling hold” on the children; an intolerance for a different parenting style of the husband; and be unduly critical of minor matters concerning him: husband’s affidavit filed 8 September 2011, pars 37-50.
The wife’s factual allegations, and their refutation by the husband, cannot be tested until there is a trial.
Secondly, the difficulty I have with Mr Ackman’s principal submission is that the tenor of the wife’s evidence, and case, is that she wants supervision to continue until she is satisfied that unsupervised time would pose no risk for the children.
However, assessment of risk is a legal decision for the Court, not a matter for the wife’s opinion or exercise of discretion.
In this regard, Ms Z in her report, par 43, described the wife as having a “controlling personality”, and at par 46 questioned “by what criteria” the wife would “judge” the husband’s mental health not to pose a risk for the children:
46.The fundamental issue or question is at what stage and by what criteria will [the husband’s] mental health be judged not to pose a risk to the children for [the wife]? It is unclear what reassurances [the wife] requires for her to feel comfortable and reassured that the children are safe with their father. …
There can never be a “guarantee” that a parent does not pose a risk to a child.
Indeed, saliently, Professor T said in his third report (par 11(v), above) that “it is impossible to give a guarantee” that a relapse by the husband, even while on his treatment, might not occur, expressing however that such would be “very unusual”.
Thus, if the wife in her case is seeking or wanting to wait for a “guarantee”, either by expert opinion, or her own opinion, in effect she is waiting for the impossible.
In this Court, assessment of risk, as I have said, is a legal decision, usually based upon expert opinion rather than lay opinion, even the lay opinion of a parent litigant.
Against this background, I have carefully considered Mr Ackman’s submission that, in this particular case, I should prefer the mother’s lay opinion that the husband poses a risk to the children in his unsupervised care rather than the expert opinions of Professor T and Professor K that he does not.
Having considered very carefully Mr Ackman’s submission, the mother’s opinion, and her as yet untested evidence on which it is based, I am not persuaded that I should prefer the wife’s opinion, rather than the opinion of the experts in the matter.
The primary question presently for interim determination is whether on all of the evidence the husband poses a risk of harm to the children if they should spend unsupervised time with him.
Doing the best I can, and recognising that these are interim proceedings, such that if there be any new evidence at any time of danger or risk to the children urgent relief may be sought and obtained, the overwhelming effect of the expert evidence is that the husband poses no present risk to the children if they should spend unsupervised time with him.
Mr Ackman expressly drew my attention to part of par 9 in Professor T’s third report:
I have no doubt that [the husband’s] condition impacted on his children, however his condition is now improved;
and the circumstance that, as noted in par 11(v) in the same report:
Prediction of the future is difficult and while relapse on treatment is very unusual, it is impossible to give a guarantee that it will not occur.
I have dealt with, and considered, this evidence.
However, it falls far short of any evidence that would warrant a continued supervised regime in respect of the children’s safety having regard to the totality of the expert evidence although as is plain it is yet untested in cross‑examination.
Mr Ackman, during argument, recognised expressly that there is no expert evidence that the children are at risk of physical harm by the husband, and no expert evidence that they are at risk of psychological or emotional harm by him.
Further, there is no evidence that the children’s existing meaningful relationship with the husband would be detrimentally affected by the commencement of unsupervised time. Rather, on the evidence, at this stage, the contrary is true. Ms Z, in her family report, par 44, referred to the necessity for the husband to be given the opportunity to relate to the children beyond the “Disneyland” role he currently has, that is, to enhance a meaningful parental relationship rather than the sort of relationship conveyed by that expression used by Ms Z.
The children have had only supervised time with the husband since the parties’ separation, now some 14 months.
Ms Z’s description of the husband having a “Disneyland” role conveys to the reader a sense of artificiality in the present relationship the children have with the husband, rather than there being afforded a more realistic setting for the development of a more meaningful “parent/child” relationship. Ms Z’s observations in this regard are important, and I will set out the relevant paragraph in her report, par 44:
44.While the children can benefit from more time with their father and him participating in their lives, it is necessary for [the husband] to be given the opportunity to relate to his children beyond the “Disneyland” role he currently has. However, it is recommended that this occur with a graduated increase in his time with the children where he gradually assumes some of the tasks and responsibilities that [the wife] currently assumes. The writer is erring on the side of caution and ensuring that, should there be merit to [the wife’s] concerns, a graduated increase would ensure that opportunity is provided for learning and trust building between the parents.
Interestingly, Mr Ackman submitted that, in these interim proceedings, I should “err on the side of caution”, in ordering continuation of supervised time. However, as Mr Geddes pointed out in reply, Ms Z, at par 44, expressly said that she was “erring on the side of caution”, that expressly being in relation to “[the wife’s] concerns”. I appreciate that the focus of Ms Z’s par 44 was that there be “increased time”, rather than, expressly, non‑supervision, which she dealt with elsewhere in her report, in particular pars 47 and 51. Nonetheless, the necessity for the husband “to be given the opportunity to relate to his children beyond the “Disneyland” role he currently has”, is unlikely to obtain in a supervised setting, as I have explained.
As to the s 60CC(3) factors, the children are too young to express meaningful views about supervision, it being an adult concept, particularly in the context of their parents’ conflict.
Although the children’s time with the husband since separation, 14 months, has been supervised there is no reason to think that transition for the children to unsupervised time cannot be relatively seamless for them.
As to the wife’s willingness and capacity to support unsupervised time, whilst it is clear that she struggles to attain comfort that the children will be safe with the husband in his unsupervised care, and I am sensitive to her concerns, she needs to understand that objectively, based upon the expert evidence, he does not pose any risk of physical or psychological harm to them. It will be difficult for her to surrender “control”, because of her beliefs and opinion. However, underneath all of this there is no reason on the material to doubt that she wants the children to have a full and meaningful relationship with her former husband, the children’s father.
In all of the circumstances, I am satisfied on the interim basis that the children’s best interests will be met by spending time with the husband from now on unsupervised, and I will so order.

What amount of time should the children spend with the husband and how should it progress to over night time

This issue occupied considerable time at the hearing.
The husband, by Mr Geddes QC, provided a schedule attached to his written submissions, said to mirror Ms Z’s recommendations, with minor changes.
The schedule, for the most part, reflected the content of a letter from the husband’s solicitors to the wife’s solicitors, annexure AJP1 to the husband’s affidavit filed 8 September 2011, with graduated increased time before overnight time.
The wife, in her proposal, urged a move to immediate overnight time, but in a supervised regime, so that, according to Mr Ackman’s submissions, the wife could monitor and assess the children’s adaption to the change to overnight time. In particular, the time the wife proposed is:
a.      each alternate week from 6.30pm Saturday to 4.30pm Sunday
b.      each Monday from 3.00pm to 6.30pm and
c.      each Wednesday from 5.00pm to 6.30pm.
The wife’s proposal does not reflect Ms Z’s recommendation as to the gradual introduction of overnight time.
Mr Ackman emphasised, in his submissions, that the wife’s proposal is for the immediate introduction of overnight time (albeit, supervised).
However, guidance is needed for the difficult progression which will ensue, given that the children have not spent overnight time with the husband for 14 months, since the separation.
No issue was raised at the hearing as to the husband’s present accommodation circumstances, nor as to his ability to provide suitable overnight accommodation for the children. Indeed, as the wife sought the immediate commencement of overnight time, I can and will safely presume that either the husband has, or can arrange, suitable overnight accommodation for the children, with sufficient space and bedrooms for them all, bearing in mind that there are 4 children ranging in age from 10 years to 4 years.
Leaving aside this matter, the wife, I think needs to understand the need for expert guidance now that she and the husband have separated. The children will have their own life with the husband, not controlled by her, and indeed their own life with her, not controlled by him.
The parties’ parenting styles undoubtedly differ and will differ, but the wife, as presently foreshadowed, always will be and will remain the children’s primary carer.
In relation to the s 60CC factors, I note the wife’s evidence as to the children’s wishes, her concern as to the husband’s parenting style, alleged denigration by him of her and her father, and other matters. I note also Mr Geddes’s analysis of the s 60CC factors in his written submissions, as to these and other relevant matters.
I take all of these matters into account.
Largely, the difference between the parties’ respective proposals related not so much to Monday and Wednesday afternoon time, although there were minor differences. The main difference was that the wife proposed that until further order overnight time be only on each alternate weekends 6.30pm Saturday until 4.30pm Sunday, whereas the husband’s proposal was that this be progressively increased to one overnight each week culminating in 2 consecutive overnights each fortnight, with a review after an updated family report by Ms Z.
Doing the best I can, although there is “no magic” in a family report, the impasse between the husband’s and the wife’s proposals has effect that in Chambers I will formulate orders based on Ms Z’s recommendations, which, I note, seem in part to reflect the positions of both parties, but based also in part upon the schedule in the husband’s solicitor’s letter annexure AJP1, which appears to be a sensible reflection of Ms Z’s recommendations and which I am satisfied is in the children’s best interests.
These are interim proceedings, which I reminded the parties and Counsel over the last 2 days of hearing. It is not my role presently to find facts. It is simply my role at this stage to ensure the children’s safety and the benefit to them of the development and continuation of a meaningful relationship with both the husband and the wife until trial.

Jewish High Holidays

The parties have reached agreement as to one matter, namely the Jewish High Holidays. I will include their agreement in the orders.

Husband’s application for litigation funding

It is common ground, as stated by Mr Ackman QC, for the wife, that there should be litigation funding for the husband, and common ground that the amount provided will be added back against the husband at the parties’ s 79 trial. The matter in issue is the amount of funding to be provided.
The circumstance that such is common ground has effect that many of the factors in Zschokke & Zschokke (1993) FLC 92-693, I need not consider.
In particular, it is not necessary to determine whether the husband has the need for funding if he is to be legally represented (although, if this were not in effect conceded by the stated common ground position, on the husband’s evidence I would readily have made that finding). Further, I may take it as conceded that, as observed in Zschokke, at 83,220, the desirability of legal representation in family law proceedings is “self evident”, and in particular I would add in my view is very “self evident” in this particular case concerning both the parenting and property issues.
I need not thus, in this particular case, proceed to consider or balance the other criteria in Zschokke, referred to in Strahan & Strahan (2011) FLC 93-466 at [138]-[141], because of the stated common ground position, such that what I am to determine is not whether there be litigation funding but only its amount.
The husband seeks $250,000, as detailed in Ms Grobtuch’s affidavits filed 24 May 2011 and 12 September 2011. Initially, $200,000 was sought, the increase now being sought being as explained in the second of those affidavits. In particular, even at this stage, $121,000 has been reached in fees and outlays.
Mr Ackman QC, seemingly on instructions, mentioned the figure $50,000 at the Bar table, in the context of a remark. The mention of that amount is likely to be either an amount the wife would not resist, or would consider reasonable. The context of Mr Ackman’s remark however was not clear, so that I am not able to consider it as a concession of any kind. I will, therefore, determine the amount not as in the range of between $50,000 and $250,000, but solely on the basis of the husband’s case seeking $250,000.
Usually, as I remarked during argument, judges do not second guess the genuine estimates of experienced litigation solicitors, unless there is a feature which strikes the judge as plainly unreasonable for the litigation steps described, or plainly unreasonable in an assessed amount. Judges usually, however, will determine an amount by a stage or phase of the litigation, in order to provide funding up to the conclusion of a specified stage or phase, as plainly there is liberty for fresh application if that stage is reached without final resolution of the matter, eg, by settlement at that stage.
In this case, the funding described by Ms Grobtuch is until the end of a proposed mediation, with specified amounts anticipated for a forensic report and valuations. There is nothing in Ms Grobtuch’s analysis of the proposed steps and expenditure that strikes me as unreasonable, nor the amount assessed by Ms Grobtuch as the amount of funding likely to be required for the husband until the conclusion of a mediation.
I would therefore determine and assess, subject to consideration of the remaining relevant matters, that the amount of funding sought is reasonable and should be $250,000.
The remaining relevant matters are that I need to be satisfied (1) that the funds justly can be made available: Zschokke (above) at 83,220-1; and (2) as to the “adjustment issue”, or the “claw-back issue”, as it is called in the cases, namely that at the eventual property settlement or trial, the husband will be entitled at least to such an amount to permit the moneys advanced satisfactorily to be taken into account: Zschokke, also at 83,220-1. See also Harris & Harris (1993) FLC 92-378 at 79,930, left column at (3):
… the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so. …

See also, more recently, Strahan’s case (above) at [136] and [137]:
136. As to the third matter identified at 79,930 by the Full Court in Harris, in discussion before us it was described as the “adjustment issue” or “claw-back issue”. It was submitted by senior counsel for the Wife that it is relevant to consider whether an order would give the applicant “more than they would be indubitably entitled to on a final hearing” or alternatively “would it give them so much that it could not be adjusted on a final hearing?” As we have observed the Full Court in Zschokke at 83,220-221 stressed the importance of consideration of the “adjustment issue” if the power in s 80(1)(h) of the Act is being exercised. We accept the submission and observe that this matter is relevant because the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power”.
137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
Whether funds justly can be made available includes examination of the question of the wife’s own costs of legal representation, in the context of “the financial circumstances of both of the parties”: Strahan [140].
Thus, in essence, the common ground matter that there should be litigation funding for the husband, and my view that if it is to be provided $250,000 is reasonable, has effect that I need now to consider whether justly that amount should be provided, or the husband’s application refused.
I am conscious that in Strahan, the Full Court made clear, at [139], that “more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.”
However, in this particular case, the “more” largely is supplied by the matter of common ground.
The real issue thus for my determination in this particular case, as the matter was argued, is the “adjustment issue”, and the aspect of the wife’s funding of her own litigation costs.
All of this requires me to turn immediately to the wife’s evidence as to her financial circumstances, and her attitude to the husband’s claimed entitlement to investigate or go behind her sworn evidence as to her financial circumstances, which she describes as a “fishing expedition” by the husband, her attitude being that, in these proceedings, the husband should accept without question what she says about her financial circumstances.
The wife deposes to having net assets of $229,413, if her chattels, jewellery and superannuation are excluded: wife’s affidavit filed 27 May 2011, pars 13 -16, summarised by Mr Ackman in his written submissions, pars 53-60, describing her financial affairs as “not complex”:
53.The wife’s assets and liabilities are set out in her Financial Statement filed 27 May, 2011 (“the Wife’s Financial Statement”). The wife’s assets may be summarised as follows:-
53.1   [… H Street, Melbourne Suburb 1]  8,500,000
53.2   Westpac Savings  87,422
53.3   Loan to [B Levy] Investments                 346,170
53.4   Shares ([Company 1] and [Company 2])           30,000
53.5   Chattels  638,000
53.6   Jewellery  135,000
E$9,736,592
54.The wife’s liabilities, as disclosed in the Wife’s Financial Statement are:-
54.1   [Company 3]   174,663
54.2   [BL] Property Trust           8,559,516
E$8,734,179
55.Hence, the wife’s net assets total $229,413 if one does not take account of chattels and jewellery (estimated at $773,000) which in any event are yet to be valued and superannuation. Accordingly, the wife’s net assets may be valued at an amount less than that estimated in the Wife’s Financial Statement.
56.It is submitted that there is no source of funds available to the wife with which to meet the husband’s claim.
57.The wife is reliant upon loan repayments from [B Levy] Investments in order to meet the shortfall between her income and household expenditure for herself and the 4 children of the marriage.
58.The husband alleges that he requires the payment in order to “investigate the wife’s financial position, which is complex and bound up in her family’s financial affairs”. It is submitted that the wife’s financial position is clearly set out in the Wife’s Financial Statement. The wife has disclosed financial interests in:
58.1[B Levy] Investments Pty Ltd;
58.2[Company 3];
58.3[BL] Property Trust (which loaned monies to the wife to facilitate the purchase of the property at [H Street]); and
58.4[E] Superannuation Fund (the wife’s private superannuation fund).
There are no other entities which require investigation by the husband or his advisors. The husband has produced no evidence that the wife’s “financial affairs are complex and bound up in her family’s financial affairs” and essentially the husband is seeking significant funding for what is at this stage a fishing expedition.
59.That the wife’s father is a man of substantial means is beyond question. However, he is not a party to these proceedings and his financial circumstances are irrelevant to the issues between the parties to the marriage.
60.As disclosed in the Wife’s Financial Statement, there is little complexity to her financial circumstances.
Mr Ackman submitted that for the husband to have litigation funding of $250,000, or any amount, it would need to come from the wife’s loan account (see above), already depleted to $346,000, and that such is the source of her meeting her own shortfall of expenses for herself and the children (detailed elsewhere in her evidence) as well as her own litigation funding.
Based on the wife’s evidence alone, I would need to conclude not only that the wife cannot afford to provide the husband the amount he seeks for litigation funding, or any amount, but that the adjustment issue would have effect that the amount the husband seeks ought not be ordered because, on the wife’s evidence, as submitted by Mr Ackman, I could not have confidence that the husband would be awarded that amount in the s 79 proceedings: Harris, Zschokke, and Strahan (above).
However, Mr Geddes relied on the husband’s evidence in his affidavit filed 8 September 2011, par 29:
29.As stated above the wife still has not yet produced all documents which she has been ordered to produce, some of which are critical to assessing the wife’s position. However the documents produced to date, do not support the wife’s allegations and in particular:
29.1The wife alleges she owes to [BL] Property Trust an amount which she variously claims to be either $7,495,111.00 (in her affidavit) or $8,559,516.00 (in her financial statement). I note the Statement of Financial Position for the [BL] Property Trust, as at 30 June 2010 had a loan account with a balance of $7,495,111.00. Annexed and marked “AJP3” is a copy of the said Statement of Financial Position. The wife has, as deposed above, been ordered to provide documents indicating movements in the loan account, and the current position of the loan account in [BL] Property Trust, but has not done so.
29.2I assert that this loan is not repayable, in any event, leaving the [H Street] property effectively unencumbered. Even if the loan is repayable, which I deny, using the figures in the wife’s affidavit, as confirmed in the Statement of Financial Position for the Trust, the property has substantial equity in excess of $1 million.
29.3The wife claims she lent her distribution in 2007, of in excess of $2 million, to [BL] Investments Pty Ltd. However there is no such corresponding entry, in the loan account of [B Levy] Investments Pty Ltd. Annexed and Marked “AJP4” is a copy of the General Ledger noting movements in the wife’s loan account with [B Levy] Investments Pty Ltd for the period of 1 July 2006 to 30 June 2010.
29.4The wife claims that she now has a loan account balance, in [B Levy] Investments Pty Ltd, of $349,794.00. However the documents produced, as at 30 June 2010, indicate the loan balance at that date, to be $458,300.00. The wife has not complied with court orders requiring her to produce documents to indicate the current position. On any view, she has a loan account in her favour of at least $349,749.00, and this is an asset she can readily access.
29.5As to the loan account, in [B Levy] Investments Pty Ltd, the wife’s affidavit suggests that this loan account credit, derives from a distribution of about $2 million, she received upon the sale of the property at [K Street], in 2007, and she has drawn against it to pay expenses. However the General Ledger of the loan account indicates:
29.5.1There is an opening balance, as at 1 July 2006, and before the sale of [K Street], of $4,290,322.17. This has not been explained by the wife.
29.5.2This balance was increased, in January 2007, by $386,644.00, which is stated to be “[initials of Company 4] admin fee”. Almost immediately thereafter, there is a debit of $417,245.00 which is stated to be “[levy].[initials of Company 4] admin fee”. Assuming “[initials of Company 4]” is a reference to [Company 4], the […] business, the wife clearly has a greater interest in that business, than she has disclosed.
29.5.3On 6 March 2007, there is a debit of $1,300,000.00 which is stated to be “loan repayment by [bl] to [initials of Levy Trust]”. There are other references to “[initials of Levy Trust]”, and “[abbreviation of Levy Trust]” including further debits on 29 January 2009, 24 March 2009, 15 October 2009 and 25 November 2009. Assuming “[initials of Levy Trust]” and “[abbreviation of Levy Trust]” is a reference to [Levy Trust], which entity also appears in the wife’s tax return (with the wife declaring a loan account in the Trust dating back to 2000, in the sum of $26,169,836.00) then the wife clearly has an interest in the [Levy Trust], which she has not disclosed.
29.5.4As at 30 June 2009, and prior to adjustments in the year we separated, the wife had a balance in the loan account of $2,311,526.74. However in the last year, and since separation the wife has made very substantial adjustments to the loan account including:
(a)An adjustment of $889,231.83, said to be “[Company 5] debtor transferred from sundry debtor to [B Levy] Loan Account” and a further adjustment of $130,000.00 said to be “[Company 6] loan transferred to [B Levy] loan account”. [Company 5], and [Company 6], were both businesses that I ran, and which the [Levy] Group took over my debt at conclusion. The wife stated in her first affidavit, that these businesses still owe the [Levy] Group money. However it appears, that post separation, the [Levy] Group have debited the debts, to the wife’s loan account. I say this is not a permanent debit, and is likely to be transferred back to the [Levy] Group, in due course. As evidence of such a practice, I note that on 30 June 2010, there is another adjustment, this time a credit of $600,000.00 which is said to be “Offset [Company 5] against debtor in [B Levy] Investments via cpt loan”.
(b)An adjustment of $770,574.78, said to be “Reallocate [B Levy] loan in [B Levy] Investments Pty Ltd” and a further adjustment of $86,209.00 said to be “Reallocate [W] loan acct from [Company 7] to [B Levy] loan”. These suggests that the wife has interests in [Company 7], or at least, had such interests, at separation.
29.6I say the wife has deliberately drawn down on that loan account, post separation, by at least $1.6 million in the last year, by way of “adjustments” both to diminish the asset, and to defeat my property interests. This series of transactions requires closer consideration.
29.7In terms of the wife’s allegation, that she does not have an interest in the property at [… P Street, Town 1], owned by Company 8, I note the loan account in [BL] Investments Pty Ltd indicates that the wife paid, from her loan account, between March 2009 and Aprl 2010, sums totalling $309,039.00 that were used, to pay [Company 9] for […] construction […] on the property. [Omitted pursuant to s 121 Family Law Act 1975 (Cth)]. Whilst the wife has claimed, […], that she has no interest in the property, the movements in her loan account with [B Levy] Investments Pty Ltd confirm that she paid personally, from that account, for the construction […]. It has been, and continues to be my assertion, that the wife is the effective owner of the [Town 1] property, and the payment of the [construction] costs from the wife’s loan account, confirms this. I note the [Town 1] property and the [associated building], are registered in the name of [Company 8], and the wife has refused to provide any documents in relation to this entity.
29.8In addition to these matters, I note the wife has produced tax returns, which indicate that she has another loan account interest, in [Levy Trust]. I note that for the whole of the period for which the wife has provided tax returns, being from the year ended 30 June 2000 to date, she has had an interest in that loan account, which at 30 June 2000 had a balance of $26,169,836, and with movements, by 30 June 2010, had a balance of $25,696,277. Until 2009, the wife claims to own the loan account, but in the 2009 and 2010 years, a note has been added to the returns stating
“[The wife] holds on trust all rights and entitlements to the funds owed by the [Levy Trust] (“the loan account trust”). [The wife] is not a beneficiary of the loan account trust and has no beneficial entitlement to any part of the fund in the loan account trust.”
29.9I note that in 2009, when the note first appears, the wife’s brother […] separated from his wife. Clearly this loan account, and the disposition of her interest in it, requires further investigation. The wife has to date, not made available any documents as to this loan account, or her disposition of legal ownership, which appears to have occurred around 2008. I recall discussion about this loan account during the marriage. It derives, I recall, from the sale of shares by the wife’s father or an associated entity in around 1999. My recollection, from discussions during the marriage, was that the wife, and each of her siblings, were gifted around $25 million each, at this time.
The principal matters, it seems to me, deposed to by the husband are:
a.      even if the loan in relation to H Street is repayable, there is equity in that home in excess of $1 million
b.     B Levy Investments Pty Ltd, according to its general ledger, showed an opening balance of some $4.2 million in 2006, before the sale of K Street in 2007, tending to negate the wife’s evidence that the loan account she still draws on, now $349,000, was sourced by the sale proceeds or solely by the sale proceeds
c.     the wife’s tax returns, referred to in par 29.8, for the 2007, 2009 and 2010 years, tendered into evidence by Mr Geddes (exhibits 1-3) show that the wife has or is likely to have an interest in a substantial loan account with Levy Trust, the balances being:
·$22,549,000 in 2007
·$25,868,000 in 2009 and
·$25,696,00 in 2010,
the husband deposing from his own knowledge, based upon discussions with the wife during the marriage, that such is sourced in a gift of about $25 million by the wife’s husband to each of his three children in about 1999.
Mr Geddes drew my attention to the circumstance that the wife’s tax returns are “High Wealth” Income Tax Returns for the years mentioned. As is understood, the Australian Taxation Office High Wealth Task Force is able to require persons to submit High Wealth tax returns when it is considered that the taxpayer, together with associates, effectively controls $30 million or more in net wealth.
Mr Geddes drew my attention to the circumstance that the wife’s 2009 and 2010 tax returns bear the notation, beneath reference to the Levy Trust, as follows:
[The wife] holds on trust all rights and entitlements to the funds owed by the [Levy Trust] (“The Loan Account Trust”). [The wife] is not a beneficiary of the loan account trust and has no beneficial entitlement to any part of the fund in the loan account trust,
this notation being not being on the wife’s 2007 tax return, but appearing for the first time on her 2009 tax return.
At first, I was concerned that the notation appeared on the wife’s 2009 tax return, before the parties separated in May 2010.
However, the husband shed light on this in his affidavit, par 29.9:
I note that in 2009, when the note first appears, the wife’s brother […] separated from his wife. Clearly this loan account, and the disposition of her interest in it, requires further investigation.
Mr Geddes submitted that the 3 tax returns show that in the 2007 year, the wife owned the loan account with the Levy Trust, but by 2009 it had been apparently transferred or reversed and that this plainly requires investigation as to whether in truth the wife still owns the loan account, presently standing in excess of $25 million.
The husband’s affidavit, par 29, raises also whether a property at Town 1 is owned by the wife or held for her beneficially; and other matters.
The very circumstance of the wife’s denial of any ownership other than net worth of $229,413, in light of the 3 tax returns to which I have referred, and in light of the husband’s clearly presented evidence in his affidavit, par 29, strengthens his case for funding to investigate and obtain a forensic report as to the wife’s wealth.
Whether or not the husband contributed to the wife’s wealth, or apparent wealth, is not to the point at this stage. The first step at any trial is for the assets of each of the parties to be clearly identified and valued.
Mr Ackman, I should say, placed on record that the wife does not accept Mr Geddes’s submissions concerning the wife’s tax returns, or in relation to the Levy Trust.
These, however, are matters to be investigated by the husband, to be the subject of a forensic report to be obtained by him, and ultimately will be the subject of determination by the trial judge, if the property matter does not earlier settle.
According to the evidence to which I have referred, it does not appear to me, as claimed by the wife, and as submitted by Mr Ackman, that her financial affairs are simple, but rather that indeed they are complex, and I reject, on the basis of the evidence, even as it presently stands, that the husband’s forensic mission is a fishing expedition.
On all of the evidence, taking all relevant matters into account, I am satisfied, to the extent that I need to be for this interim hearing, that it is just that there be provided $250,000 litigation funding for the husband, and on the basis of the evidence adduced to date that the adjustment issue, on the balance of probabilities, also is met.

I will, therefore, order that the wife provide litigation funding to the husband of $250,000 to be paid into the husband’s solicitor’s trust account within 21 days, such sum to be used solely for his litigation costs, past and future, including for any forensic report/s which he may seek and/or valuations he may seek, up to and including the conclusion of a mediation in the matter to be scheduled by the parties in relation to both the parenting and property issues, this amount to be characterised at the trial as an addback against the husband.
I will not include in the order, but I note, that the amount the subject of the order at this stage is based on, as I have mentioned, Ms Grobtuch’s evidence. It is implicit however throughout proceedings such as these that there is liberty to apply for top up from time to time after an anticipated phase is reached or, in some circumstances, even before it is reached, such to be assessed on the merits at those various times.

Parenting orders

The interim parenting orders made on 1 June 2011 will be varied so that paragraphs 3 and 5.1 no longer operate, and until further order the children spend time with the husband unsupervised at times I will formulate in Chambers based upon Ms Z’s recommendations and Ms Grobtuch’s letter to which I have earlier referred. That will culminate in 2 nights per fortnight throughout the first two terms next year. The overnight weekend time will conclude at 4.30pm on Sundays, as sought by the wife, to enable the children to have time to resettle before the commencement of the school week. I will build also into the orders that the parties arrange for Ms Z to provide an updated family report by 30 May 2012 with a view to review after that stage.
The next order will be in relation to the Jewish High Holidays, to be made by consent.

Litigation funding

I will make the order already indicated.

Spousal maintenance

The husband’s application for spousal maintenance at $6500 per week will be listed before Registrar FitzGibbon on a date to be arranged between the parties and the Court, or otherwise before a judge as may be directed by Cronin J, as the Case Management Judge.

Certify for Counsel

I will certify for Counsel, including Queen’s Counsel and two Counsel.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on O’Reilly.

Associate:

Date: 23 September 2011

[2011] FamCA 745

14 September 2011

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Consent

Costs

Remedies

Constructive Trust