Richter & Horvath
[2024] FedCFamC1F 129
•7 March 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richter & Horvath has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Ms Richter (“the wife”) filed an Initiating Application on 30 October 2023 subsequent to the breakdown of her marriage with Mr Horvath (“the husband”), seeking orders as the adjustment of property and as to the parenting of their twin six-year-old children, X and Y (collectively, “the children”), both born 2018. On 14 December 2023 the husband filed a Response to an Initiating Application seeking different orders as to parenting and property adjustment.
The wife in her Amended Initiating Application filed 28 February 2024 sought interim orders as to parenting (including that the children live with her), litigation funding, spouse maintenance, injunctions for the preservation of property, and exclusive occupation of the home of which the husband is the sole registered proprietor at D Street, Suburb E (“the Suburb E property”). The husband opposed the wife’s relief for litigation funding and spouse maintenance, seeking he occupy the home to the exclusion of the wife, and different interim orders as to parenting (including that the children live with him).
The parenting issue focused on allegations that the husband posed an unacceptable risk of sexual abuse to X and an unacceptable risk of family violence, either directly or indirectly, to the wife and to both children.
Over the course of the interim hearing the parties compromised many of the issues in dispute by way of proposed consent orders (Exhibit 8). Orders will be made in terms of Exhibit 8. The parties agreed that the children shall pending further order live with the wife. Such order will be made. The remaining issues to be determined were as to:
(a)The terms of an injunctive order regulating the parties sleeping in the same bed and/or room as the children;
(b)The identity of the supervisors of the husband’s time spent with the children; and
(c)The frequency and periods of supervised time to be spent by the husband with the children during the school term and school holidays.
The consent orders provide that Dr B will prepare a single parenting expert opinion and that a single expert nominated to value their real property interests. The parties will undertake a private mediation after the expert evidence distils.
These reasons determine the identified remaining interlocutory disputes between the parties.
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 go
7. You must not live at:
A) the same as [the wife], [X], [Y], or
B) 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.
The wife also gives evidence that the husband has physically dragged Y by the wrists, that he has struck and manhandled Y, and occasioned bruising to his arm.
The husband contends that he and the children have been exposed to family violence and psychological abuse occasioned by the wife. This includes the wife engaging in outbursts, using extreme language, and makes false allegations against him. He contends that there is a risk that the wife will abduct the children to Country G.
Each of the parties agree that the parental relationship is characterised by extremely high conflict, mutual distrust, and inability to communicate.
Each of the parties have made complaints to the police. In late 2022 the wife attended the Suburb H police station and made a complaint as to the husband recording her without her consent. On two dates in late 2022, the husband attended Suburb H police station to report his concerns, as he was fearful of the wife’s behaviour and action. He said he informed the police that the wife may attend to station to falsely report violence at the home. At that time, the wife attended the Suburb H police station and reported violence. She said a Constable asked her if she wanted to take out an ADVO against the husband, however, she declined.
In early 2023 the wife called the police alleging an incidence of family violence that occurred a few days earlier. She said the husband picked up Y by his shoulders and dropped him onto the floor. Both Y and the husband were interviewed by police. Y was interviewed in the presence of both parties. The wife says that he answered each question with “I do not remember”.
On or around late 2023, the wife made a report to the Department of Communities and Justice (“the DCJ”) regarding allegations of child sexual abuse by the husband upon X, reporting the husband’s use of Vaseline on X, and him sleeping in X’s room. She particularised evidence such as:
(a)The husband going into X’s room most mornings around 4.30/5.00am, remaining there for 30 – 45 minutes, and that “99% of the time” he brings a Vaseline jar when he is not noted to use it at other times;
(b)The husband wanting to clean X on the bidet and dress her;
(c)The husband being protective over X as opposed to Y and does not clean Y’s private areas in the same way;
(d)Excessive discipline and physical abuse of Y by the husband; and
(e)Domestic violence by the husband towards the wife.
The DCJ and the NSW Police produced documents pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) in early 2024 (Exhibit 11). Those documents record that there have been twelve reports for X, eight of which have screened in as “RoSH” (risk of significant harm). In addition to the complaints as reported by the wife above, the documents produced by the DCJ also noted that X had made six comments of concern, such as “Poppa touched my privates”, and calling her vagina “sweetie”, however when asked about this, that she did not want to talk about it.
In late 2023 the wife received a call from the NSW Police that day informing her that they had interviewed X at her school, and that the wife would receive a call from the DCJ. The wife received a safety plan from the DCJ that day.
On the same day, the DCJ developed a safety plan with the parents. They both signed the plan. It stipulated:
(a)The husband can only be exposed to the children when the wife is in the same room supervising;
(b)The husband will not sleep in the same bed or room as the children;
(c)The children will bathe separately and wash themselves in the bath. If they need assisted, the wife will assist;
(d)The wife will attend to the children’s toileting and the husband will not use a bidet for the children;
(e)Any cream to be put on the children’s genital area will be instructed by the wife, and the children do this independently;
(f)The parties will not talk ill of each other to or in front of the children;
(g)Each the husband and the wife will refrain from acting in an abusive way to each other; and
(h)The parties would not expose the children to “adult topics”.
The DCJ documents that the wife “appears genuinely concerned for the welfare of the children, and is observed to interact in an appropriate and gentle manner with them”. The DCJ concluded that there was “no information” to suggest that the wife employed excessive or inappropriate discipline towards the children, nor that she is overly controlling or bullying.
It is noted in the s 69ZW exhibit (Exhibit 11) that in the late 2023 interview, X answered “don’t know” and “don’t remember”, to many of the questions. In early 2024, the Police conducted an audio-visual interview with X. They concluded in their report in early 2024 recording that they would not charge the husband because:
(a)There was no disclosure of any sexual offences occurring to X on this occasion;
(b)X refers to her vagina as “vagina” and not “sweetie”, as stated in the DCJ Report;
(c)X refers to her father as “Daddy” and not “Poppa”, as stated in the report;
(d)In relation to X going to bed with day attire on and waking up to find X has her pyjamas on and no underwear, it appears the wife is drawing an inference that something sexual has occurred overnight without evidence; and
(e)X denied anything happening to her at home which she did not like and stated that she felt “happy” at home.
The police material also recorded a conclusion that the husband had not committed an offence by initially installing the surveillance cameras in the Suburb E property. However, an offence may have been committed by the husband continuing to record once the wife had requested him to stop.
The parties are in dispute as to whether the DCJ and police investigations are now completed. The evidence suggest that it may have been transferred up within the DCJ to an J Centre.
COMPETING PROPOSALS
The parties did not disagree by the end of the hearing as to the terms of orders to be made without admissions regulating the sleeping arrangements for the children. It was agreed that there was no evidence in the husband’s case criticising of any aspect of the mother’s sleeping behaviour with the children that her historical conduct on this matter presents a risk to the children.
An order will be made without admissions that the husband is restrained by injunction from sleeping in the same bed or bedroom as the children. An order be made without admissions that the wife not do any act or thing to encourage or facilitate the children sleeping with her during the night, however she would be permitted to assist in settling the children to sleep in their own beds.
The wife’s minute of order (Exhibit 9) seeks:
THE COURT ORDERS:
Parenting:
2.Pending further Order, the children live with the Mother and spend supervised time with the [husband] on a 2 weekly cycle as follows:
Week 1:
2.1.Tuesday and Thursday from conclusion of school or 3.20 pm until 6.00 pm;
2.2. each Saturday from 2.30 pm to 7:30.
Week 2:
2.3.Tuesday and Thursday from conclusion of school or 3.20 pm until 6.00pm;
2.4. each Sunday from 9.30 am to 2.30 pm.
3.Pending further Order, the children shall spend supervised time with the [husband] during school holidays in accordance with the previous Order.
4.The children’s time with the [husband] shall occur in the presence of a qualified supervisor from a professional supervision agency and if the agency is not agreed within 24 hours of the date of these Orders the agency shall be [F Family Services] (“the agency”) with the cost to be paid for by the [husband], and in the event that 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 this regard:
5.On or before 5 pm 5 March 2024 the parents shall do all acts and things and sign all documents so as to undertake any necessary intake procedures with the agency.
6.That the parties are to make the arrangements for the visits via the agency and otherwise do all acts and things to comply with the ongoing requirements of the agency.
(As per the original)
The husband’s minute of orders (Exhibit 10) seeks:
Pending further order:
Week 1
Saturday 9.30am – 3.30pm
Monday 3.20pm (after school) – 7.50pm
Wednesday 3.20pm (after school) – 7.50pm
Friday 3.20pm (after school) – 7.50pm
Week 2
Sunday 9.30am – 3.30pm
Monday 3.20pm (after school) – 7.50pm
Wednesday 3.20pm (after school) – 7.50pm
Friday 3.20pm (after school) – 7.50pm
School holidays – Alternate day 9.30am – 3.30pm
To be supervised at all times by either:
1. [Ms K] – Sister in Law
2. [Mr L] – Brother in Law
3. [Mr M] – Brother
4. [Ms N] – Sister
5. [Ms O] – 20 yr old Niece
THE LAW
Pursuant to s 65D(1), subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC. The relevant questions that underpin the remaining issues in dispute in this case are:
(a)The identification of the risk to the children in the husband’s care, an assessment as to the magnitude of that risk, and as to how that risk, if unacceptable, can be mitigated to make it no longer unacceptable. The parties in this matter implicitly agree that the evidence grounds a realistic possibility that the children will be exposed to an unacceptable risk of harm spending time with the husband, and that time is to be limited to during the day only on the basis that supervision of time spent by the husband with the children operates as a vehicle to mitigate risk (see Isles & Nelissen (2022) FLC 94-092). They disagree as to the terms of that supervision to achieve the desired mitigation of risk; and
(b)How the differing proposals as to the frequency and periods of time spent by the husband with the children during the school term and school holidays will permit the children to maintain a meaningful relationship with him pending a final trial.
In interim parenting hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests (see Salah & Salah (2016) FLC 93-713).
THE DISPUTE AS TO THE IDENTIFY OF THE SUPERVISOR
The wife submitted that time spent by the husband with the children ought to be a professionally supervised by a community-based agency because:
(a)This method of supervision was recommended by the expert in the Child Impact Report due to the “allegations of family violence and boundary violations”. I accept this submission.
(b)The allegations of sexual risk are very serious, being identified by the wife as “grooming” behaviours exhibited by the husband of the child X. She gave precise evidence as to the integers she says establishes her contention, being:
(i)The husband’s fixation of he co-sleeping with the child, commencing in 2022 when he started to sleep in the same room as X, to which the wife protested. As recorded earlier in these reasons, these complaints progressed to the DCJ complaint and investigation. Restrictions were placed on the husband’s conduct in the safety plan of 14 November 2023 requiring him not to sleep in the same room and X and for him to sleep downstairs in the property. Both parties agreed to the safety plan and signed it. Implicitly, both parties agreed that the plan promoted the best interests of X and afforded her some protections. After entering the plan, the wife has recorded detailed observations of the husband shifting back on occasions into X’s bedroom. Her affidavit is very particularised as to the dates, what she observed on each occasion, and her concerns. The evidence of the husband not complying with the safety plan tends to demonstrate inability for him to control this behaviour;
(ii)The husband wiping X’s vagina and anus with his hands; and
(iii)The husband washing X’s underwear on almost a daily basis.
(c)The wife articulated the subtly of the husband’s behaviour continuing over an extended period of time, saying that it illustrates an obsessiveness in the husband and an incapacity to maintain boundaries and comply with orders and directions, including the DCJ safety plan. I accept these factors. They attract significant weight.
The husband submitted that the children have been engaged with a number of professionals, and that it would be destabilising to introduce the children to another stranger who is not family as a supervisor of time spent. He contended that the “sanitised nature” of professional supervision does not give rise to the children spending meaningful time with him. The husband submitted that he was the primary carer to the children prior to and after separation, that both children have an “incredibly loving and close relationship” with him, and that it was in the children’s best interest for this contact to continue in the most natural setting as is available, being supervised by his family.
The husband conceded in submissions that he is sensitive and aware of the wife’s concerns. He concedes broadly, without specific identification, that some of his interactions with the children and the mother may have been inappropriate. These concessions attract weight.
For the reasons submitted by the wife as recorded above, when coupled with the following reasons, leads to the conclusion that it is in the best interests of the children to spend time with the husband supervised by a professional community-based supervision agency, because:
(a)The supervisors proposed by the husband have familial relationships with him. The husbands’ parents, on his own case, are elderly and their capacities or absences thereof are unknown. Some of the proposed supervisors also have financial relationships with him. These factors raise a spectre of an absence of independence of his proposed supervisors.
(b)There is no evidence that any of his proposed supervisors are aware of, or have any knowledge of, the fact of or the particulars of, the very serious allegations of risk.
(c)No evidence has been adduced as to the husband’s proposed supervisors having knowledge of, or being aware of, their duties in their role as supervisors of time spent, including that their primary obligation is to ensure the protection of the children and to remove them from the husband’s vicinity if required. I accept that the wife would have no confidence that the husband’s family members would be as diligent as a professional supervision agency.
(d)I accept the wife’s submission that a professional supervision agency will undertake a close observation of the husband’s interactions with the children and can record and report subtleties of behaviour and exchange. They will have an independent role in managing the husband’s relationship with the children, especially with the child X.
(e)A community-based supervision agency can provide reports to be available to each of the parties, the Court expert and to the Court by way of an independent person recording the circumstances of time spent. There is no evidence as to husband’s proposed supervisors having that capacity. These reports can give comfort and assurance to the wife as to the terms and mechanics of time spent. This in turn may reduce the wife’s anxiety and inquiries of children, giving the children some respite as to the conflict between the parents and her concerns.
(f)The parties anticipate that the matter may be ready for allocation of trial dates by mid-2024. The period of operation of the supervision regime is not inordinate.
(g)Professional supervision is likely to be a methodology to prevent further allegations, benefiting each of the parents and the children. It assists the husband in ensuring that his relatives and those with whom he has familial relationships are not strained.
The husband’s financial circumstances are superior to that of the wife. He will meet the cost of the community-based supervision. In the event either parent wishes to obtain a report from the supervision agency, the husband shall meet that cost in the first instance, with the wife to reimburse him with half that cost from her s 79 verdict.
FREQUENCY OF TIME
The husband proposed to spend time with the children four days per week. The wife sought that the husband spend time with the children three days per week.
The parties both sought for the children to spend time with the husband on alternate weekend days. The husband additionally sought to spend time with the children on Monday’s, Wednesday’s, and Friday’s. Over the course of the hearing the wife consented to amending her relief sought so that the children would spend time with the husband on Monday’s and Wednesday’s during the week, as opposed to Tuesday's and Thursday’s, as the children are enrolled in language lessons on a Thursday afternoon. The dispute therefore centred on whether the children would spend time with the husband during the school term on Friday’s and when that mid-week time is to conclude.
The husband submitted at the hearing that the “policy seems to be” that the younger the children are, the more frequent the visitation with each parent should be, and therefore four days a week would more effectively promote a meaningful relationship between he and the children.
Although “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant” (see McCall & Clark (2009) FLC 93-405). What is required to be considered by the legislation is the benefit to the child of having a “meaningful” relationship with each parent, not an “optimal” relationship. A relationship may be less than optimal but nonetheless meaningful (see Rochford & Fitzhugh [2019] FamCAFC 218).
The husbands’ proposal would require eight changeovers of the children each week during the school term and every second day during the school holidays. The children have lived with significant changes in their lives in recent times. It promotes their best interests to achieve some degree of stability in the future. Currently those interests are progressed by the terms of the wife’s proposal, reducing the number of changeovers between the parents and for the regime of spending time to continue during both the school term and the school holidays. The husband’s proposal that the children be returned to the wife at 7.50pm in the evening during the approaching winter months appears to disregard the darkness and cold, and the necessity for six-year-olds to be in bed at an earlier hour for school the next day. The wife’s proposal for time on weekends ensures that the children will spend either a morning or an afternoon with the husband.
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.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 7 March 2024
0