Richter & Horvath (No 2)
[2024] FedCFamC1F 839
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Richter & Horvath (No 2) [2024] FedCFamC1F 839
File number(s): SYC 8189 of 2023 Judgment of: BOYLE J Date of judgment: 27 November 2024 Catchwords: FAMILY LAW – CHILDREN – Interim Hearing – Where the children live with the mother and spend professionally supervised time with the father – Where the father seeks orders for time to be supervised by a member of his family – Where the mother seeks changes to the time arrangements and order to permit her to travel overseas to Country G with the children – Where orders are made for the father to spend time with the children during the school holiday period supervised by a member of his family – Where no orders are made with respect to overseas travel. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Isles & Nelissen (2022) FLC 94-042 Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 27 November 2024 Place: Sydney Counsel for the Applicant: Mr Lawrence Solicitor for the Applicant: Gordon & Barry Lawyers Pty Ltd Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Pearson Emerson Family Lawyers Solicitor for the Independent Children’s Lawyer: Russell Kennedy 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:
BOYLE J
DATE OF ORDER:
27 NOVEMBER 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The matter remains listed for Final Hearing on 28, 29 and 30 April, 1 and 2 May 2025 at 10am.
2.Orders 7 to 22 of the Orders made on 7 March 2024 are discharged.
Interim parenting orders
3.Until the conclusion of Term 4 in 2024, the father shall spend time with the children Y born 2017 and X born 2017 (“the children”) during the school term on a 2 week cycle as follows:
Week 1
(a)Monday and Wednesday from the conclusion of school or 3:20pm until 6:00pm.
(b)Saturday from 2:30pm to 7:30pm.
Week 2
(c)Monday and Wednesday from the conclusion of school or 3:20pm until 6:00pm.
(d)Sunday from 9:30am to 2.30pm.
4.Commencing Term 1 in 2025, the father shall spend time with the children during the school term on a 2 week cycle as follows:
Week 1
(a)Wednesday from the conclusion of school or 3:30pm until 7:20pm.
(b)Saturday from 9:30am until 6:30pm.
Week 2
(c)Wednesday from the conclusion of school or 3:30pm until 7:20pm.
(d)Sunday from 9:30am until 6:30pm.
5.The father shall spend time with the children during the 2024/2025 summer school holiday period commencing 20 December 2024 (“summer school holiday period”) on a 2 week cycle as follows:
Week 1
(a)Wednesday from 9:30am until 6:30pm.
(b)Saturday from 9:30am until 6:30pm.
Week 2
(c)Wednesday from 9:30am until 6:30pm.
(d)Sunday from 9:30am until 6:30pm.
6.The father’s time with the children shall be supervised by P Contact Service or such other professional supervision agency as agreed between the parties in writing.
7.The father shall meet the cost of supervision and any reports provided by P Contact Service.
8.The father’s weekend time with the children during the summer school holiday period shall occur in a public location and shall be supervised by one of the following people, conditional upon the filing of a signed Undertaking to the Court in the terms annexed to these Orders, and having their obligations as a supervisor pursuant to the Undertaking explained to them by the Independent Children’s Lawyer:
(a)Mr M;
(b)Ms N;
(c)Ms K; or
(d)Mr L.
(“the supervisors”)
9.The father or his legal representative shall advise the mother or her legal representative no less than 24 hours prior to any weekend time over the summer school holiday period, of the name of the nominated supervisor and their contact details.
10.In the event that the supervisors referred to in order 8 are not available, the father’s time with the children shall be supervised by P Contact Service or such other professional supervision agency as agreed between the parties in writing.
11.The father’s time with the children pursuant to order 5 shall be suspended on 25 December 2024, and he shall spend time with the children from 2:30pm until 6:30pm, supervised in accordance with Orders 8 to 10.
Restraint
12.The father is restrained during any period of supervised time from bathing the children, changing their clothes or assisting with toileting or hygiene matters.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
These are interim parenting proceedings with respect to the two children of the parties, X and Y, who are seven year old twins.
The children reside with their mother and pursuant to orders of 7 March 2024 they currently spend time with their father on three occasions each week, supervised by a professional supervision service.
THE APPLICATION
The parties seek a variety of different orders in the interim application. The father seeks to maintain the Monday and Wednesday time after school until 6.00 pm, and then seeks that time occur on Saturday and Sunday in alternate weekends, from 9.30 am to 7.20 pm. The father seeks orders that time be supervised by his brother, sister, niece, or Mr L.
The mother seeks orders to permit her to travel to Country G over the summer holiday period, and although her orders suggested a bond of $10,000 would be provided, a bond of up to $50,000 has been proposed in submissions. The specific dates for travel have been provided, that is from late 2024 to early 2025. She proposes to provide to the father an itinerary and the like.
The mother sought a change of primary school for the children, and sole decision-making authority which is no longer pressed. She seeks that the father's time with the children occur twice each week, from 9.00 am to 4.00 pm on Saturdays and on Wednesdays from after school until 8.00 pm or, in the school holidays, from 10.00 am until 6.00 pm. The mother proposes that the supervision remain in place with a professional agency, being P Contact Service.
There is an agreement with respect to the parties undertaking family therapy, as was recommended in Dr B's report. The terms of the family therapy are being considered by the parties and they will provide orders in due course.
The Independent Children's Lawyer seeks orders that time between the father and the children occur from 10.00 am until 5.00 pm on not less than one day per week during the Christmas holiday period, supervised by a family member of the father, on the proviso that time occur in a public location with various restraints on the father's conduct towards the children and the like.
There is an undertaking being resolved between the parties, that should I order members of the father's family undertake supervision will be the proviso for supervised time. That undertaking will also be explained by the Independent Children's Lawyer to the proposed supervisors so that it is done independently. Should they not wish to participate, they can indicate that to the ICL.
CONSIDERATION
The main issue is whether or not time should continue to be supervised on a professional basis during the school holiday period. The father seeks that it be lifted altogether, in the sense that all future time be supervised by a family member.
The risk that needs to be balanced from the mother's perspective is risk of sexual abuse or grooming by the father. Those risks are sought to be mitigated by independent supervision.
The father denies having engaged in any inappropriate conduct with either of the children, in particular with X. Dr B identified in his report some issues for the father that impacts his parenting. In particular he referred to a lack of reflective functioning and empathic attunement to the children.
The court is required to assess risk and consider what might be put in place to mitigate risk. That is in terms of the test as is set out in Isles & Nelissen (2022) FLC 94-042. The overarching consideration is the best interests of the children.
The mother is concerned that family members of the father would not be appropriate because they would not be suitably diligent, in that they may be overborne by the father. There may be issues for them in ensuring the children's safety, were the father seek to be involved in a way that would breach their Undertakings.
The additional risks for the children are that, were they on return to the mother to say something of concern to her, there may be further investigation by the Department of Communities and Justice. Clearly further investigation and interviewing of X would not be in her interests.
The risk when one looks at what has been alleged arose from an incident where the father insisted on applying cream to X's vaginal area. He would not permit the mother to do so and instead, as Dr B referred to, in a manner asserting his rights determined that was something that he would do.
The father’s conduct has been investigated by both the Department of Communities and Justice and the police. The evidence is clear that there has been no disclosure by X to anyone about any inappropriate conduct towards her by the father. There has been no disclosure by either X or Y to Dr B of inappropriate conduct by the father.
The other risks for the children go more to an emotional risk that the father may speak inappropriately or critically about the mother in a manner that may undermine the children's relationship with her. Dr B made some recommendations with respect to assistance the father could obtain from two different kinds of parenting courses. The first is one which goes to managing children's behaviour. The father has, as I understand it, almost completed a Triple P Parenting Program. This was one of the programs recommended by Dr B and it is to provide better skills at managing behaviour.
The other kind of course that was recommended, the Circle of Security course, is intended to teach parents to better be able to assist children when they are emotionally dysregulated, and it involves different kinds of parenting skills and training. The father is on a waitlist for that program and has not yet had the opportunity to complete it.
When looking at the balance of risks, it is accepted that supervision mitigates the risk. It is whether that supervision is formal and independent of the father, or a family member.
The children in this matter have an established relationship with their father. The Independent Children’s Lawyer has proposed a hybrid arrangement over the upcoming Christmas school holiday period. One day a week where there is an opportunity for an excursion, which would be supervised by a member of the father's family. That would take place on the basis that it is not at anyone's home, and occurs outside or in a play centre. That would make it easier for a supervisor to control the conduct between the father and the children during any visit. The Independent Children’s Lawyer also proposed that the father not be involved in toileting or changing the children.
The advantages of that proposal are that it would ensure that there is still reporting by an independent supervisor once each week about the progress of time between the children and the father, which goes to things like maintenance of appropriate boundaries between the children and the father. There would also be independent reporting about, for example, any subtle kinds of undermining of the mother, or those sorts of matters.
The other form of supervision, through family members, allows the development of the children's relationship with their paternal family. That clearly is to their advantage. They have established relationships from the past with those people, although since the parties separated the opportunities for that have been far more limited.
This proposal would revert to supervised time on a formal basis at Term 1 in 2025 so that it continues to be supervised in the lead up to the Final Hearing which is listed in April 2025. The time envisaged to be supervised by the paternal family members would not start until the beginning of the school holidays.
In balancing the risks, I accept that the Independent Children’s Lawyer’s proposal maintains for the children safety by time with their father being supervised. It puts in place requirements for family supervisors to be bound by undertakings given to the Court, and allows over the summer period excursions to occur. It maintains the formal aspect of supervision with reporting once each week.
The proposed supervisors
One of the supervisors nominated by the father is his niece Ms O. I do not say any of the following matters in any way critical of her, but it is difficult for a person who has been a child growing up with an adult, to then be in a position of having to create boundaries or rules or enforce a particular arrangement. It would seem to me in those circumstances that it may be difficult for that person to do so. Given there are other supervisors proposed, I find that she would not be a suitable supervisor.
On the basis that there are constraints around the father that are clear, and that the giving of Undertakings will be discussed by the Independent Children's Lawyer with the supervisors, I am satisfied that over the summer school holiday that is an appropriate course to meet the best interests of the children and promote their safety.
The time arrangements
The mother has sought a reduction of one of the midweek periods, and that during the school holiday period time be extended. She has sought particular orders with respect to the length of that time. The father opposes that and seeks that that time occur as it has been ordered twice each midweek and once on the weekends.
These children have as I have referred to, an established relationship with their father. The proposal of the mother does not appear to me to diminish in any way the children's relationship with their father.
The mother is moving to Suburb Q from the start of 2025, and that that will involve a longer trip home for the children on the weekdays after school. It is likely to be, at least at the start of the school year, somewhat unsettling for them to have a different arrangement returning from school to a new home, given they are only moving at the beginning of 2025.
In those circumstances it does not appear to me to diminish their relationship with their father were that time to reduce to one occasion on the midweek basis.
Whether the mother should be permitted to travel with the children to Country G
The other aspect of the application is the mother's proposal that she be able to travel to Country G for the specified period during the upcoming school holidays. It is trite to say that Country G is not a country signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The father opposes the travel. In his Amended Initiating Application, he seeks final orders that travel occur on the posting of a bond of $1,000,000. The orders are proposed on the basis that the children are residing with him, as I understand his application.
One of the difficulties with dealing with this matter now, is that there are problems with the mother's evidence with respect to her ties to Country G. She tells the court that she is no longer a Country G Citizen, and that she no longer holds a passport. It is not entirely clear what her status is in Country G. It is clear that she has previously lived there. Her two older children were educated there for various reasons she says agreed between herself and the father of those children. The evidence is fairly limited in terms of her capacity to remain in Country G on a long-term basis, and the basis upon which the children could do so.
The mother has family in Country G, she has friends there, and she has previously lived there. At the present time, on the evidence that I have, there is a risk that the children could be retained by the mother in Country G in the lead up to this Final Hearing.
The Final Hearing gives an opportunity for all those matters to be explored, including the mother's status in Country G. It is appropriate that this matter be dealt with as part of the Final Hearing. There is, in terms of the children's interests, no particular need to travel at this point in time. It was not put by her that there are ageing relatives who have health issues, or something of that sort that often drives these kinds of applications.
I appreciate that is disappointing to the mother, but as the Final Hearing is set down in April 2025, it is a matter that will not remain unresolved for long. I do not propose making orders with respect to overseas travel at this point.
CONCLUSION
The orders that I make will progress the matter until the final hearing in April 2025, anticipating that I will receive shortly from the parties and the Independent Children's Lawyer, the Undertaking as drafted, to be provided to the supervisors by the Independent Children's Lawyer.
The current regime of time will continue until the conclusion of school term, and the new regime will begin from the start of the Christmas school holidays, being 20 December 2024.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 12 December 2024
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