Richter & Horvath

Case [2024] FedCFamC1F 129

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Richter & Horvath [2024] FedCFamC1F 129

File number: SYC 8189 of 2023
Judgment of: CAMPTON J
Date of judgment: 7 March 2024
Catchwords: FAMILY LAW – INTERIM PARENTING – LITIGATION FUNDING – SPOUSE MAINTENANCE – INJUNCTIONS – Where the wife makes allegations of family violence and sexual violence by the husband upon herself and the children – Where there is agreement between the parties that the husband’s time with the children should be supervised to mitigate any risk – Where the parties disagree as to the identity of the supervisor and the frequency and periods of time spent – Where other interim issues as to litigation funding, the preparation of a Child Impact Report, and various injunctive orders are resolved by consent – Orders made as the time and frequency of the husband’s time with the children and requiring such time to be supervised by a community-based supervision agency.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D, 69ZW, and s 79
Cases cited:

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Rochford & Fitzhugh [2019] FamCAFC 218

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Division: Division 1 First Instance
Number of paragraphs: 44
Date of hearing: 1 March 2023
Place: Sydney
Counsel for the Applicant: Mr Apelbaum
Solicitor for the Applicant: Gordon & Barry Lawyers Pty Ltd
Counsel for the Respondent: Mr Batey
Solicitor for the Respondent: Harris Freidman Lawyers

ORDERS

SYC 8189 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS RICHTER

Applicant
AND:

MR HORVATH

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

7 MARCH 2024

THE COURT NOTES THAT:

A.The following definitions for the purpose of these Orders:

(i)“Act” means Family Law Act 1975 (Cth)

(ii)“X” means X born 2017;

(iii)“Children” means X and Y;

(iv)“Y” means Y born 2017;

(v)“Husband/Father" means Mr Horvath born 1963;

(vi)“Parties/parents” means the Husband/Father and the Wife/Mother;

(vii)“Wife/Mother" means Ms Richter born 1962.

THE COURT ORDERS BY CONSENT THAT:

1.The husband shall pay to the wife by way of partial property settlement pursuant to s 79 of the Act the sum of $100,000, with such payment to be made within 14 days to the trust account of the wife’s lawyers being:

Gordon and Barry Lawyers Pty Ltd Law Practice Trust Account

Commonwealth Bank of Australia

BSB …

Account No. …84

2.The husband shall pay to the wife to such account as she may direct the sum of $50,000 with the characterisation of the payments to be determined at the final hearing within 14 days.

Family report

3.That a report be prepared in these proceedings for parenting orders relating to the care and welfare of the children pursuant to Part 7.1 (rr 7.04 and 7.07) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the family report”).

4.The parties shall do all acts and things and sign all documents…

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AGLC
Richter & Horvath [2024] FedCFamC1F 129
Case
[2024] FedCFamC1F 129
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia concerns an interim parenting application brought by Ms Richter against Mr Horvath, with the parties having separated under one roof. The wife alleged family and sexual violence by the husband against herself and the children. The primary issue before the court was the nature and extent of the husband's supervised contact with the children. The court also had to consider other interim issues, such as the preparation of a Child Impact Report, litigation funding, and various injunctive orders.

The court determined that the husband would have supervised contact with the children for three days each week during both the school term and school holidays. The supervision would be conducted by a community-based agency, with costs borne by the husband. The court was satisfied that this arrangement would allow the husband to maintain a meaningful relationship with the children while mitigating any risk of harm. Other interim matters were resolved by consent, including the preparation of a Child Impact Report, the division of costs, and several injunctive orders.

The court made orders consistent with the wife's proposal, allowing the husband to spend three days each week with the children under supervision. The matter was adjourned for further case management. The court emphasised that the form of the order was subject to review for any minor errors or necessary variations. The decision underscores the importance of safeguarding the welfare of the children in cases involving allegations of family violence.

Orders

Orders of the court

SYC 8189 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RICHTER

Applicant

AND:

MR HORVATH

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

7 MARCH 2024

THE COURT NOTES THAT:

A. The following definitions for the purpose of these Orders:

(i) “Act” means Family Law Act 1975 (Cth)

(ii) “X” means X born 2017;

(iii) “Children” means X and Y;

(iv) “Y” means Y born 2017;

(v) “Husband/Father" means Mr Horvath born 1963;

(vi) “Parties/parents” means the Husband/Father and the Wife/Mother;

(vii) “Wife/Mother" means Ms Richter born 1962.

THE COURT ORDERS BY CONSENT THAT:

1. The husband shall pay to the wife by way of partial property settlement pursuant to s 79 of the Act the sum of $100,000, with such payment to be made within 14 days to the trust account of the wife’s lawyers being:

Gordon and Barry Lawyers Pty Ltd Law Practice Trust Account

Commonwealth Bank of Australia

BSB …

Account No. …84

2. The husband shall pay to the wife to such account as she may direct the sum of $50,000 with the characterisation of the payments to be determined at the final hearing within 14 days.

Family report

3. That a report be prepared in these proceedings for parenting orders relating to the care and welfare of the children pursuant to Part 7.1 (rr 7.04 and 7.07) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the family report”).

4. The parties shall do all acts and things and sign all documents necessary to attend upon Dr B for the purpose of preparing the family report, with the husband to meet the cost at first instance.

5. That the family report considers the following matters:

(a) The nature of the relationship between the children and the parents;

(b) The nature of the relationship between the parents;

(c) The likely effect of any change in circumstances, including the likely impact on the children and their relationships with either parent, of any separation from either parent or household;

(d) Any views expressed by the children or any factor, such as the maturity or level of understanding, that would impact the weight placed on those wishes;

(e) The capacity of the parents or any other person to provide for the needs of the children, including physical, emotional and/or intellectual;

(f) The maturity, sex, culture and any other characteristics of the children or either parent that the single expert thinks are relevant to the welfare of the children;

(g) Any physical or psychological abuse of the children which has occurred or is likely to occur;

(h) Any ill treatment, family violence or other abusive behaviour that is directed towards the children, a member of the children’s family, extended family or a person present in the children’s lives and the likely impact on the children;

(i) Whether either parent or any associated person has any psychological impairment or mental health condition that has affected or will affect their ability to capacity to parent the children and the relevance/impact of same;

(j) Whether the children suffer from any psychological or psychiatric condition and the relevance of such condition to the parenting needs of the children;

(k) The attitude of each of the parents to the responsibilities of parenthood; and

(l) Such further or other issue as the expert considers relevant.

6. The parties’ lawyers shall have leave to provide to the single expert Dr B by way of instructions the following:

(a) A copy of these orders;

(b) Copies of all documents filed by each of the parents in the proceedings;

(c) Copies of any documents produced under subpoena;

(d) Such further or other documents that the parties may agree upon in writing; and

(e) A copy of the Child Impact Report.

7. The parties’ lawyers shall be granted leave to photocopy all documents held at the exhibits office for the provision of those documents to the agreed single expert and the cost of such photocopying shall be waived.

8. That, in the event the single expert requires wither parent to undertake any further testing or analysis as part of the assessment process, such parent shall do all acts and things and sign all documents necessary to comply with that request on such reasonable terms and conditions may be requested by the single expert.

9. The costs of the family report and the single expert be paid by the husband at first instance.

10. Upon the release of Dr B’s report and the single expert real estate valuations currently being prepared by C Valuers, the parties shall do all acts and things and sign all documents necessary to attend upon a private mediator.

11. For the purposes of Order 10, the wife shall provide the names and details of three mediators and the husband shall within seven days of receiving the list nominate one mediator.

12. The husband shall meet the cost of the mediator at first instance.

13. Without admission, the husband agrees to the following Orders from the wife’s Amended Initiating Application:

(a) That pending further order, the husband be restrained by injunction from doing any act or thing so as to sell, encumber, mortgage, lease or otherwise dispose of his interest in the property at D Street, Suburb E.

Injunction

(b) Pending further order, the husband be restrained by injunction from doing any act or thing so as to bathe/shower either child.

(c) …

(d) Pending further order, the parties be restrained by injunction from using physical discipline with respect to either child.

(e) Pending further order, the wife shall be entitled to the sole use and occupation of D Street, Suburb E.

(f) Pending further order, the husband shall be restrained by injunction from doing any act or thing so as to disturb the wife’s quiet enjoyment of D Street, Suburb E.

(g) That pursuant to section 68B of the Act the husband is restrained from:

(i) Intimidating, threatening, harassing, and assaulting the wife or causing any other person to do so.

(h) Pending further order, the husband shall do all acts and things and sign all documents necessary so as to pay all motor vehicle insurance, including comprehensive and compulsory third-party insurance, registration and toll charges with respect to the Motor Vehicle 1, registration no. ….

(i) Pending further order, the husband shall be restrained by injunction from doing any act or thing so as to interfere with the Wife’s enjoyment and use of Motor Vehicle 1, registration no. ….

(j) Pending further order, the husband shall be responsible for payment of all rates, outgoings, utilities and mortgage instalments payable with respect to any mortgage registered on D Street, Suburb E.

THE COURT NOTES THAT:

B. For the purposes of Order 3, the parties note that Dr B has availability on 8 April 2024 and 12 August 2024.

THE COURT ORDERS BY CONSENT THAT:

14. Pending further order, the children live with the wife.

15. Pending further order, without admissions, the husband be restrained by injunction from doing any act or thing so as to sleep in the same bed and/or in the same bedroom as either child.

16. Pending further order, without admissions, the wife not do any act or thing to encourage or facilitate the children sleeping with her during the night. The wife is permitted to assist in settling the children to sleep in their own beds.

THE COURT ORDERS THAT:

17. Pending further order, the children are to spend supervised time with the husband during the school term and the school holidays on a 2 weekly cycle as follows:

Week 1:

(a) Monday and Wednesday from conclusion of school or 3.20pm until 6.00pm;

(b) Saturday from 2.30pm to 7:30pm.

Week 2:

(c) Monday and Wednesday from conclusion of school or 3.20pm until 6.00pm;

(d) Sunday from 9.30am to 2.30pm.

18. The children’s time with the husband shall be supervised by a community based professional supervision agency as agreed between the parties in writing within seven days for the date of these orders, and in the event such agreement is not achieved, the agency shall be F Family Services (“the agency”).

19. The cost of supervision is to be met and paid by the husband.

20. If either parent wishes to request a report from the supervisor for which there is an additional fee, the cost is to be paid by the husband in the first instance, with the wife to reimburse the husband for half of that cost at the time of making any final s 79 orders.

21. Within 14 days of the date of these orders the parents shall do all acts and things and sign all documents to undertake any necessary intake procedures with the agency.

22. The parties are to make the arrangements for the visits by way of writing with the agency and otherwise do all acts and things to comply with the ongoing reasonable requirements of the agency.

23. Save and except as provided for by these orders, the interim relief as sought by the wife in her Amended Initiating Application filed 28 February 2024 and the interim relief as sought by the husband in Response an Initiating Application filed 14 December 2023 is dismissed.

24. The matter is adjourned and listed case management in person on 10 July 2024 at 9.30am.

25. The parties are at liberty to submit any consent orders to chambers for consideration.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, orders will be made for the husband to spend three days each week with the children during both the school term and school holidays supervised by a community-based supervision agency, with the cost of such supervision to be met by him.BACKGROUND The wife was born in 1962 in Country G and is currently 61 years old. The husband was born in 1963 in Australia and is currently 60 years old. The wife contends that the parties commenced cohabitation from in or around mid-2015. The husband contends they commenced cohabitation sometime in 2016. They married in 2017 and separated under one roof on or about 25 October 2022. In early 2024, on a NSW Police complaint, an Apprehended Domestic Violence Order (“ADVO”) was made restricting and prohibiting the conduct of the husband, with the children and the wife named as the protected persons. That ADVO provided:1.You must not do any of the following to [the wife], [X], [Y], or anyone they have a domestic relationship with:A) assault or threaten them,B) stalk, harass or intimidate them, and C)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [the wife], [X], [Y]Orders about where you cannot go7. You must not live at:A) the same as [the wife], [X], [Y], orB) any of the following places[D Street, Suburb E] In early 2024 the husband was also arrested and charged. He was summoned to attend court a short time later, being released on the following bail conditions:(3) These are the conditions of your bail:(a)that I enter into an agreement to observe specified requirements as to my conduct while at liberty on bail as set out hereunder;(4)I agree to observe as a condition of my bail the following requirements as to my conduct while at liberty on bail:-To comply with the conditions of the Apprehended Domestic Violence Order, in relation to the Person In Need Of Protection [X] and [Y] The husband’s criminal charges are grounded from the husband installing cameras inside the Suburb E property recording the wife and children. The cameras generated real time surveillance by way of an app. The vision recorded was stored and could be accessed. The wife reported and made complaint to the police in early 2024. The Police directed the husband to remove the cameras. He did not. The Police removed them a few days later. The wife and the children have lived in the Suburb E home since early 2024 to the exclusion of the husband. The husband has from that time lived close by with his parents. The wife contends that the children have been exposed to significant family violence occasioned by the husband. This includes the children observing the husband locking the wife in the bathroom of the home and shouting loudly at her, making threatening comments directed at both she and Y, including that the husband told the children’s grandparents that he “wants [the wife] dead”, told the wife that he would “destroy [her] financially and drag this out indefinitely”, and telling Y that he would “throw [him] out of the house”. She says that the husband controlled their finances, including by “deciding how much money” the wife would receive for groceries and scrutinising receipts. She said that the husband would speak to her in a derogatory fashion, providing examples such as the husband telling her that she had “mental issues”. She further gave detailed evidence as to the husband recording her on multiple occasions during their conversations, and continuing to do so after she had told him that she did not consent.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Orders shall be made in accordance with the wife’s proposal. I am satisfied that at the present time, in all of the circumstances, three days per week of spending time with the children is sufficient for the husband to maintain a meaningful relationship with both of them.CONCLUSION For all of the above reasons, I make the orders as set out at the forefront of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.