VOSSEN & VOSSEN

[2018] FamCA 564

FAMILY COURT OF AUSTRALIA

VOSSEN & VOSSEN [2018] FamCA 564

FAMILY LAW – CHILDREN – Application by wife seeking a review of registrar’s decision and a stay of orders allowing husband to spend unsupervised time with the children – Interim Orders that children spend supervised time with the father – Interim Orders that the father communicate with the children – Interim mutual injunctive orders

FAMILY LAW – PROPERTY – Application by wife seeking a partial property order – Interim property orders made whereby husband and wife each receive an equal sum by way of a partial property settlement

Family Law Act 1975 (Cth)

Treloar and Nepean (2009) FLC 93-417

APPLICANT: Ms Vossen

RESPONDENT: Mr Vossen

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYC 8184 of 2016

DATE DELIVERED: 27 July 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 25 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies SC

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Diamond Conway

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

Orders

1. All previous parenting orders relating to the children X born … 2011 and Y born … 2011 (collectively ‘the children’) are discharged.

UNTIL FURTHER ORDER

1. Ms Vossen (‘the mother’) and Mr Vossen (‘the father’) have equal shared parental responsibility for the children.

2. The children live with the mother.

3. The children shall spend time with the father as follows:-

   (a)each Tuesday and Thursday from the conclusion of school (or 3.00pm in the event that it is a non-school day) until 6.30pm;

   (b)each Saturday from 11.00am until 6.00pm; and

4. For the purposes of order 4 the children’s time with the father shall be supervised by a supervisor nominated by the M Group or such other supervisor as is agreed in writing between the parties and the Independent Children’s Lawyer.

5. The father shall communicate with the children by telephone/Facetime on no fewer than three (3) nights per week between 6.30pm and 7.30pm while the children are with the mother.

6.In relation to the supervision provided by the M Group pursuant to these orders, the mother is restrained from giving any direction to the children that:-

(a)   requests M Group to restrict the activities in which the father engages in while the children are with him; and

(b)  requests M Group to restrict the father from coming into contact with any person.

1. Both parties be restrained from:-

   (a)discussing these proceedings with the children or in the presence or hearing of the children;

   (b)showing the children any documents relating to these proceedings including supervision reports or discussing the contents of those documents with the children; and

   (c)denigrating the other parent to the children or in the presence of the children.

2. The father and mother are to facilitate the continued attendance by the children with Ms B in relation to the children’s therapy and both parties be restrained from giving any direction to Ms B restricting her ability to communicate with each party.

3. Each party be given leave to provide a copy of the single expert report prepared by Ms C dated 18 May 2018 to that parties’ treating general practitioner, psychologist or therapist provided notice of the provision of that report to such treating medical provider is given to the other party and the Independent Children’s Lawyer within seven (7) days of its provision.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. Costs of all parties for this interim application are reserved.

6. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

INTERIM PROPERTY ORDERS

1. By way of interim property orders; within seven (7) days of the date of these orders the wife and husband will each sign all documents necessary to pay from the ANZ Bank Equity Manager Account BSB … Account No. …18 the sum of two hundred thousand dollars ($200,000) to the wife and the sum of two hundred thousand dollars ($200,000) to the husband.  If the amount available in that account is less than $400,000 then such amount shall be paid equally between the wife and husband.

2. The costs of both the husband and wife to this application in a case are reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vossen & Vossen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 8184 of 2016

Ms Vossen

Applicant

And

Mr Vossen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Vossen (‘the wife’) and Mr Vossen (‘the husband’) are engaged in parenting proceedings in respect of their three children Z (aged 11), X (aged seven) and Y (aged seven) (collectively ‘the children’).  They are also involved in property proceedings.

2. The parenting and property proceedings have been listed for final hearing before me in December 2018.

3. The parties separated on 2 December 2016.  Later that month the parties reached an agreement whereby the children would spend time with the father on a supervised basis.

4. That supervised time has continued on a weekly basis until the date of the interim hearing and presumably continues.

5. The wife asserts that the time the children should spend with the husband ought to be supervised.  The husband contends that such time ought not to be supervised.

6. Proceedings were commenced by the wife on 9 December 2016 in the Federal Circuit Court.  They were subsequently transferred to the Family Court.  The parties engaged in interim proceedings before a Senior Registrar of the Family Court on 3 and 4 August 2017.

7. On the second of those days the Senior Registrar made orders providing that the children live with the wife and spend time with the husband on an unsupervised basis.

8. On 7 August 2017 the wife filed an application in a case seeking a review of the Senior Registrar’s decision and a stay of the orders of the unsupervised spend time with orders made on 4 August 2017.  On 10 August 2017 the Senior Registrar granted a temporary stay of the orders.

9. The matter came before me on 20 December 2017 in a busy pre-Christmas duty list.  The parties relied on a large quantity of documentation and a single expert report was in the process of being ordered.

10. As a consequence the review application, which is a hearing de novo, was stood over for hearing before me at Sydney on 25 May 2018.  The purpose of that late hearing date was that it was anticipated, as it turns out – correctly, that a report of the single expert would be available at that time.

11. At the same time the wife was seeking orders that the husband cause the sum of $200,000 to be paid to her by way of an interim property order.  The husband did not oppose an interim property order, but argued the quantum to the wife and sought an amount for himself.

12. On 20 December 2017 supervised interim parenting arrangements were put in place and directions were made in respect of the property and further directions were made in relation to the parenting disputes.

THE PARENTING DISPUTE

1. At the commencement of the interim hearing the Independent Children’s Lawyer tendered a draft minute of order to which she adhered at the conclusion of the interim hearing.[1]  The order provided that the children live with the wife and that for a period of two months from the date of the orders they spend supervised time with the husband, such supervisor to be a nominee of the M Group.

   [1] Exhibit E19.

2. Following that there was to be a period of two months during which the children spent limited time with the husband, on an unsupervised basis and after that period of time the children spend more unsupervised time with the husband.  The detail of which is set out in the Exhibit.

3. This time was to be conditional upon the husband undertaking some managing anger courses with Ms D in respect of addressing issues of boundaries with the children, parenting skills and communication with the wife.

4. It was also conditional for the husband to continue to engage with his psychologist Dr E and to comply with all reasonable requests and referral by him.  The draft order also provided for electronic communication.  It also provided for an order that the children continue to engage with Ms B for the purpose of therapeutic counselling and that the wife engage with the therapist to address her anxiety regarding the husband’s parenting.

5. Finally, leave was sought to provide copies of Ms C’s single expert report to some therapists.

6. The Independent Children’s Lawyer sought orders that the parties be restrained from discussing these proceedings with the children or showing them any documents concerning these proceedings.

7. The wife’s case was now that the current arrangements should remain in place until the hearing which is to take place in December of 2018, albeit there will be some weeks after that time to enable orders to be considered and a judgment to be written.

8. The wife had initially sought a reduction in time for which she was criticised by counsel for the husband.  However, in submissions senior counsel for the wife (sensibly) adopted the submissions outlined above.

9. The husband sought orders as set out in his outline of case filed 24 May 2018.[2]

   [2] Exhibit E21.

BACKGROUND

1. The husband is aged 48 years, he says he is a small business owner by occupation. The wife is aged 45 years and says she is self-employed.  Neither of the parents assert the other has any physical condition which would prevent that parent from caring for the parties three children.  Each parent asserts that the other parent has behavioural, psychiatric, emotional and/or psychological issues as would adversely impact on that parent’s capacity to property care for and/or emotionally support their children. 

2. The wife alleges the parties commenced cohabitation in 2000 and married in 2005.  The parties’ separated in November or December 2016.

3. As discussed earlier there are three children of the marriage, Z aged 11 years and the twins, Y and X each aged seven years.  The children primarily live with the wife and spend limited supervised time with the husband.

4. The wife asserts that she has been the victim of family violence over many years. She claims that this involved the husband yelling, pushing, standing over her, and demanding obsessive cleanliness of the parties’ home.  She says he was verbally abusive to the children at times and has been violent in their presence.  

5. The wife asserts that the husband is irresponsible and is a serious risk taker in terms of his care of the children.  This includes an allegation that he left a gate open and one of the children, then aged about two, went alone to a park.  The wife asserts the husband indicated this may have been done on purpose.  Further, she says the husband left the elder child unattended in a car which adversely impacted on the child’s health.  Other examples asserted by the wife include claims that the husband allowed the elder child to play on a roof, took the children swimming in unsafe circumstances, took one of the twins close to the edge of rocks exposing her to danger, demonstrated to one of the twins a dangerous way to dry clothes and on one occasion took the twins out on rocks close to the edge of the sea and he refused to bring them in when asked.  The wife asserts that the husband took the children kayaking and encouraged them to get out of kayak and swim in the harbour which was against the kayaking company's rules.

6. The wife asserts that the husband has allowed the children to touch his penis and engage in other inappropriate behaviour in terms of their interaction with him.  Furthermore, the wife claims that the husband has been reluctant to modify this alleged behaviour.

7. The husband denies or explains the various incidents raised by the wife and contends that the children are safe in his care.  He asserts that the wife does not support the children having a meaningful relationship with him. 

8. These proceedings were commenced by the wife and now involve both property and parenting issues.  The husband sought interim unsupervised parenting orders.  That application was heard by a Senior Registrar in early August 2017 and orders were made for unsupervised time between the children and the husband.  The wife has reviewed that decision and a stay was put in place by the learned Senior Registrar.  

9. The wife has made complaints about the husband’s interaction with the children.  There has been police investigations, and in late 2017 Provisional Apprehended Violence Order taken out by police for the protection of the children.  This was later converted to an Interim Apprehended Violence Order made by Suburb F Magistrates Court.

10. These parenting and property proceedings are now listed for final hearing before me in December 2018.   

EVIDENCE

1. There has been a tsunami of evidence provided by each of the parties.  The wife relied upon the following:-

   (a)a further amended initiating application filed 18 December 2017;

   (b)her affidavits filed 21 July 2017, 5 September 2017, 15 November 2017, 18 December 2017 and 16 May 2018 (by leave);

   (c)her financial statement filed 18 December 2017;

   (d)her Notice of Risk filed 9 December 2016;

   (e)her response to an application in a case filed 15 November 2017;

   (f)an affidavit of Ms G filed 1 August 2017;

   (g)an affidavit of Ms H (the wife’s sister) filed 25 July 2017;

   (h)an affidavit of Ms J (mutual friend of parents) filed 22 July 2017;

   (i)an affidavit of Ms K filed 27 July 2017; and

   (j)an affidavit of Ms L filed 21 July 2017.

2. The wife also relied upon the Child Responsive Program Memorandum dated 10 November 2017.

3. The husband relied upon the following:-

   (a)His minute of order attached to exhibit E21.

   (b)his affidavits filed 26 May 2017, 5 September 2017, 3 August 2017, 15 December 2017, 8 May 2018 and 23 May 2017 (by leave);

   (c)affidavit of Ms N filed 24 May 2017;

   (d)an affidavit of Ms O filed 25 May 2017;

   (e)affidavits of Mr P filed 25 May 2017 and 5 September 2017;

   (f)affidavit of Ms Q filed 29 May 2017;

   (g)affidavit of Ms R filed 29 May 2017 and 18 December 2017;

   (h)affidavit of Mr T filed 7 June 2017; and

   (i)affidavit Mr U filed 5 September 2017.

4. In addition the husband sought to rely upon parts of the affidavit of the wife filed 9 December 2016 together with bundles of other documents.

5. A single expert report had been prepared by Ms C, a forensic and clinical psychologist (‘the single expert’) dated 14 May 2018 (‘the single expert report’) and was part of the material before the Court.

6. In addition there was material tendered in evidence on 20 December 2017, namely:-

   (a)Exhibit E10 – tagged document from Dr V;

   (b)Exhibit E11 – tagged documents from the NSW Department of Families and Community Services;

   (c)Exhibit E12 – tagged documents from Mothercraft;

   (d)Exhibit E13 – tagged documents from NSW Police;

   (e)Exhibit E14 – documents from Ms W;

   (f)Exhibit E15 – tagged documents from Dr AA;

   (g)Exhibit E17 – tagged documents from Dr E;

   (h)Exhibit E17 – email from Ms BB dated 21 November 2017;

   (i)Exhibit E18 – tender bundle;

   (j)Exhibit E19 – minute of order prepared by the Independent Children’s Lawyer;[3]

   [3] Minute of order by ICL E19.

   (k)Exhibit E20 – wife’s case outline;

   (l)Exhibit E21 – husband’s case outline;

   (m)Exhibit E22 – exhibit to husband’s May 2018 affidavit;

   (n)Exhibit E23 – tender bundle on behalf of the husband including report of Ms B, letters between the husband’s solicitor and Dr E, notes of Dr E produced in response to subpoena;

   (o)Exhibit E24 – index to documents in the wife’s affidavit; and

   (p)Exhibit E27– part of the material before me were the costs notices from the parties solicitors.  These disclosed that each of the parties had spent on costs:-

   (i)the husband paid costs were $166,909.73;

   (ii)the husband’s unpaid costs to the conclusion of the review hearing on 25 May 2018 were $65,527;

   (iii)the husband’s estimated future costs, based on a five day hearing, were $130,000;

   (iv)the wife’s legal costs were $220,625; and

   (v)in addition to this the wife had incurred further legal costs and disbursements of $15,011.

7. I have read the affidavits upon which the parties rely, I have gone to those parts of the documents tendered in evidence to which I was taken by counsel with the exception of the supervision reports[4] which, at the request of counsel for the husband, I have read in its entirety.

   [4] Exhibit E26.

8. These 139 reports up to 19 May 2018 apparently missed out on two visits and those reports were before me, namely Saturday 21 April 2018 and Thursday 27 December 2017. I have read both of those reports.

9. There was, initially, an issue as to whether the material tendered on 20 December 2017 ought to be available.  After the matter had been stood down for a short period of time it was conceded that this material should be read and I did so.

The Law in interim parenting matters

1. Senior counsel for the wife provided an outline as to the law regarding interim

2. are necessarily abridged with a significantly curtailed parenting proceedings, saying:-[5]

   [5] Case Outline of the Applicant Mother – Exhibit E20 – pages 5 and 6.

   Interim proceedings scope of inquiry. The Court ordinarily cannot make findings of fact and should not, ordinarily, be drawn into issues of fact or matters relating to the merits of the substantive case. Rather the Court will generally look to the less contentious matters, such as the agreed facts and issues not in dispute in determining interim parenting orders: Goode & Goode (2006) FamCAFC 1346 at [68].

   That does not mean that a case should be determined solely by reference to the agreed facts or that because an issue is in dispute it should not be considered in interim proceedings: Eaby v Speelman [2015] FamCAFC 104 at [18] citing In SS v AH [2010] FamCAFC 13 at [88] and [100] and Marvel v Marvel [2010] FamCAFC 101 at {122] and [123]. That said, any findings of fact in disputed interim proceedings need to be “couched with great circumspection”: ibid.

   The Full Court in Salah & Salah [2016] FamCAFC 100, recently considered the question of what to do about contested family violence allegations in interim hearings and the impact of those findings upon the presumption in s61DA(1).

   Their Honours May, Ainslie-Wallace & Cronin JJ said that just because an allegation of family violence is disputed does not mean it should not be considered: [41], [42] and [58].

   [41] …. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH): at [41].

   As to this case there is a corroboration as to some of the allegations and patterns of behaviour alleged by the Mother. However, corroboration is not a necessity for allegations to be taken into account in an interim hearing.

   Their Honours in Salah further said there is no requirement for allegations of family violence to be corroborated ([41], [43]) nor satisfy the civil standard of proof ([45]) before they are considered by a Court in interim proceedings, the Full Court noting:

   [43]… Family violence often takes place in private in circumstances where no corroboration is available.

   The Full court in Amador & Amador [2009] FamCAFC 196 made similar observations at [79] to [81].

   The Full Court in Gong & Wei [2017] FamCAFC 55, which dealt with an interim determination as to supervision, noted at paragraph 47:

   There is no obligation on a trial judge in determining an interim parenting order to find that the presumption provided for in s 61DA(1) of the Act has been rebutted or shown not to apply, or to find that it would not be appropriate to apply it, simply because allegations of family violence have been raised by one parent against the other and are not able to be determined definitively one way or the other. Of course, such allegations must be considered carefully, particularly having regard to all the provisions of s 60CG and s 61DA, but such allegations are but part of the evidence that must be evaluated in determining the proper order to make in the children’s best interests and the part they play in the determination is a matter within the discretion of the trial judge.

   In the context of interim decision the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 at 120 said as follows:

   … Decisions judicial officers have to make in interim proceedings are difficult and often for very good reason a conservative approach or one which is likely to avoid harm to a child is adopted…

   It is submitted that these authorities are apposite to the case at hand.

1. The seemed no issue taken with this outline and it reflects the current law.

2. Counsel for the husband took me to the Full Court decision Coleman, May and Dawe JJ in Treloar and Nepean (2009) FLC 93-417, where it was correctly submitted that the talks of an important recommendation by an expert at an interim stage of the proceedings. In particular the Full Court observed:-

   [52]The orders made by the Federal Magistrate appear to be inconsistent with the uncontested evidence from the jointly engaged expert. Nor did his Honour explain in his reasons why he was departing from the recommendations.

   …

   [78] We are mindful of the limitations on an appeal court allowing an appeal such as this, being largely a discretionary matter, especially from an interim decision. However, we are of the view that in the unusual circumstances of this case, particularly having regard to the very clear opinion and recommendations of Professor Quadrio, an order on an interim basis for equal shared parental responsibility should not have been made. It follows that as the orders in relation to the father’s time with the child were based on the equal shared parental responsibility decision, those orders also should be set aside.

3. In the particular proceedings the fundamental task of the Court, in the light of voluminous and contested evidence, is risk assessment.  That is to understand the various risks and consider what can be put in place (if needed or if possilbe) to ameliorate such risks so that the children are not at a prospective unacceptable risk of harm in the unsupervised care of the father.  

DISCUSSION

1. Senior counsel for the wife asserted that the reasons why supervision should continue, at least in the interim, falls into five areas of risk, namely:-

   (a)lack of sexual boundaries by the husband;

   (b)the husband is a risk taker and so imperils the well-being of the children;

   (c)the husband’s anger management;

   (d)the husband’s mental health; and

   (e)family violence.

2. There are allegations of family violence which were the subject of submissions by senior counsel for the wife and counsel for the husband.  Given the evidence, I am not satisfied that alone, even if the level of family violence comes to proof, it would present an unacceptable risk to the children in the unsupervised, at least on an interim basis, care of the husband. 

3. The single expert discusses the question of the husband’s mental health in her report, including paragraph 120 where the single expert says:-

   Considering [the husband’s] mental illness, it is positive that he has now received a clear diagnosis and that he has responded well to medication to manage this. While his insight into his symptoms of his illness is limited at this point in time, this is not uncommon for individuals with newly diagnosed Bipolar Disorder and it is positive that he expresses openness to gaining further insight into his psychological functioning. The significance of [the husband’s] mental illness in the current matter is with regards to how it impacts his parenting capacity. It is possible that his past erratic and aggressive behaviour has been a function in some ways of his then-undiagnosed mental illness, although clearly other factors contributed to this. The children have been exposed to significant turmoil in their parents’ relationship and all reported memories of their parents shouting. However, since [the husband] and [the wife] separated in December 2016, and [the husband] commenced his mood stabiliser medication in January 2017, the children have not been exposed to a similar level of discord. They remain impacted by the acrimonious relationship between their parents, but are not witnessing the possible impacts of [the husband’s] mental illness. Should [the husband] cease treatment without support and supervision by his psychiatrist, he may be at risk of developing a further depressive or hypomanic episode. In such a scenario, his parenting capacity would no doubt be negatively impacted through the impairment of his own psychological functioning and the likely lack of insight that would accompany this. However, if [the husband] remains treated as per his psychiatrist’s instructions, the impact of his mental illness on his parenting capacity seems minimal.

4. The wife raises the issues in her affidavits in various places.  The concern of the wife is that the husband has limited insight into his illness and that in itself constitutes a risk to the children.

5. The wife ties this to a history of family violence, which is also an issue.

6. I am not satisfied that the evidence as to the husband’s mental health is such alone it would create an unacceptable risk to the children spending some unsupervised time, at least on an interim basis, with him.  Whilst her evidence is untested the single expert observes, at paragraphs 46 and 47:-

   46.[The husband’s] account of his psychological functioning suggests that while he acknowledges periods of poor coping, he remains ambivalent as to whether his functioning is a result of external or internal stressors. However, he demonstrated adequate insight into his early warning signs and recognised that medication, combined with reduced stress, has resulted in improved overall functioning for him.

   47.With regards to the impact of his mental illness on his parenting, [the husband] suggested that if he were experiencing active symptoms of Bipolar Disorder, he would have difficulty “being present” and find it harder to be patient with the children. He acknowledged he may be short-tempered, but denied any risk of physical aggression to the children, noting that there has been no allegation of him doing this in the past and he cannot see that it would be an issue in future. I note that he maintains his aggressive behaviour in the past has been prompted by interpersonal stressors in his relationship with [the wife] and that such interpersonal stress may increase as the children grow older and begin to exert stronger will and desire for independence. As such, it is important that [the husband] remain appropriately treated for his mental illness and that he continue to monitor his psychological functioning, while also increasing insight into his risk factors and early warning signs.

7. The areas which are primarily concerning relate to the husband’s alleged lack of sexual boundaries, his risk taking combined with anger management. 

8. Much of this evidence is untested and often disputed.  It may be, that after a final hearing and the evidence has been tested, the concerns raised in this material are such as would not expose the children to risk of harm of exposure to sexual harm or emotional or psychologist harm in the husband’s unsupervised care.

9. The evidence about the husband’s boundaries is significant.  Counsel for the husband submitted that I ought to read all of the reports of the supervisors, which I did.  As his counsel submitted, the vast majority of that material was benign.  However, there were issues which were not benign. 

10. One such event was when one of the children touched the husband’s penis and the exchange of which appear to show some casualness of that behaviour on 12 May 2018 particularly where it is alleged the child said ‘I am so sorry it’s just been a long time, there are no boys at home’ and onwards.  Fairly, for the husband he endeavoured to dissuade that behaviour.

11. I accept the submissions of senior counsel for the wife that there is no evidence of sexual gratification by the husband, but that may miss the point, as there is an submission that husband may have difficulty in managing those behaviours.  If the wife is to be believed in relation to paragraph 19(n) in her affidavit[6] it is clearly inappropriate behaviour and inappropriate education for these children in terms of the husband and his boundaries with these children and his failure to take it seriously.

    [6] Wife’s affidavit 20 July 2017 paragraph 19(n).

12. The husband denies the context of the incident and the factual matrix of the incident.  In relation to this the single expert observes, at paragraph 75:-[7]

    The father said nobody had ever told him his behaviour was inappropriate.

    [7] Single expert report paragraph 75.

13. The single expert observed that:-

    This was a curious position to take given that the husband was subject to an interview with JIRT.

14. The single expert said the husband would take that seriously.  It was put to me that the approach of the husband was troubling particularly having regard to the evidence he gave in the Magistrates Court on 3 April 2018, about three weeks after he was interviewed by the single expert, where the husband said[8] of this behaviour in his statement given to the police:-[9]

    Because of everything that has happened since we have separated, I now accept that her boundaries on many issues differ from mine and I respect her entitlement to hold them.  I also accept that given we are now separated it is important to reassure her that her boundaries will be respected by me as we move forward especially when the children are with me and away from her. 

    [8] Exhibit E22 page 51.

    [9] Exhibit E28 paragraph 107.

15. This was a statement given in November 2017 and I accept, if this is his view into the future, and that has yet to be tested, it shows limited insight.

16. In the single expert report at paragraph 75 the single expert says of the father:-

    [the father] recognised that the children have been ‘curious’ of points about his genitals and that he ‘never took a strong response’ as he didn’t want to stigmatise the idea of body parts.

17. Much was made of the evidence of Ms G in terms of her affidavit and her report.  If this comes to proof after being tested it is troubling as to the husband’s behaviour.

18. There are of course issues in respect of that evidence given the difference between it and the material in the report.  However, one of the effects of the submissions made on behalf of counsel for the husband is that I ought to in effect reject that evidence in the absence of cross-examination.  That may be what I decide  do at the final hearing, however, that is not my role at the present time.

19. The husband’s interaction with the children is troubling, if it is to the extent asserted by the wife.  There is some evidence that Dr E spoke to the father about boundaries.[10]

    [10] Single expert report paragraph 71.

20. In relation to the husband’s ‘risk taking’ behaviour the wife sets that out in her affidavits at length.  These include paragraphs 10(a),(b), (c),(d), 19(a), (b), 19(e). Some of these are alone innocuous and some paragraphs contain hearsay, to which I have not given any weight. 

21. It is raised in paragraph 72 of the single expert report, where she said:-

    [The wife] said that she was uncertain about [the husband’s] behaviour and whether it constituted sexual abuse or not. She spoke with a friend of hers and [the husband’s] (Ms [R]), who reportedly reassured her that because [the husband] did not have an erection in the bath, his behaviour did not constitute sexual abuse (Ms [R] agrees in her Affidavit of 18/12/2017 that she did not believe that [the husband’s] behaviour constituted sexual abuse but that she did not advise [the wife] as to whether she should take action). [The wife] said that despite this, she made reports to FACS from the very beginning of first noticing [the husband] engaging in sexually inappropriate behaviour. The first report made to FACS was on 1/05/2016, detailing concerns about [the husband’s] “dangerous” behaviour towards the children ([the elder child] being left in the car at age 3, [the husband] leaving the front door and gate open, taking the children into unsafe water conditions, and having the children near the open window on the second storey of the holiday house). The incident in the bath occurred in late October 2016 and a report was made to FACS on 18/12/2016. The matter was closed by FACS due to competing priorities and because [the wife] was deemed protective. With regards to [the husband’s] position that [the wife] has increased the severity of the allegations as the Family Court proceedings have progressed, I note that [the wife] did not raise her concerns about [the husband’s] ‘sexual’ behaviour towards the children in her first Affidavit, dated 7/12/2016, suggesting some support for his claim.[11]

    [11] This is a matter for me after hearing the evidence of the parties.

22. It was submitted to me that great weight should be given to the recommendations, albeit untested, of the single expert given that she has much of the information.

23. I accept that is the general approach.  I have carefully read the report of the single expert and it seems to me that the information available to the Court, is as good and at times better than that of the single expert. I had the benefit of submissions on behalf of the parties and the Independent Children's Lawyer.

24. The Independent Children’s Lawyer adopted the husband’s approach.  I gave significant weight to those submissions however, in the light of all of the material before me and the relatively short period of time between this determination and the final hearing in December, I am not satisfied that supervision should not be removed at this time.

25. Given the concerns with regard to the husband’s lack of boundaries and risk taking and given the proximity of the hearing where all of the evidence will be tested including the assertions that this is a mother who is overprotective and the like, and that the husband’s insight is greater than is believed by the wife and that steps can be taken to provide protection for the children it is my view that for the next four or five months it is prudent for the supervision to remain in place rather than brought to a stop at this time.

26. As a result I will vacate the orders made by the learned Senior Registrar in August 2017 and will put in place orders for supervised time until the hearing in December 2018.

APPLICATION FOR PARTIAL PROPERTY ORDER

1. By further amended initiating application filed 18 December 2017 the wife sought spouse maintenance and an interim property settlement.  The interim spouse maintenance application was not pressed[12] however, the wife continued to seek an order that the husband cause to pay to her by way of an interim property settlement the sum of $200,000.

   [12] Case outline filed 2 December 2017.

2. The husband does not oppose the payment to the wife per se.  What he objects to is the sum of $200,000 being paid to her and then seeks that $250,000 be paid to him.[13]

   [13] Husband’s summary of argument dated 2 March 2018.

3. On the husband’s case there is at least $400,000 in funds available to meet either a costs or a property order.  On the wife’s case she asserts that the parties have the capacity to borrow $200,000 against an existing loan to fund the monies needed by her.

4. The husband’s case is that the parties are able to draw down $400,000 against that account. 

5. What is not in issue is that this matter is heading towards a seven day hearing in December 2018 in relation to both property and parenting.  It will be expensive exercise for the parties.

6. There is an issue between the parties as to whether the husband has misapplied hidden or otherwise improperly dealt with a sum of about $400,000.  On an interim basis I am unable to make any determination in that respect.

7. The husband offers an explanation and the wife asserts that the explanation ought not to be believed.  That will be a matter for the final hearing and not a matter for the present time.

8. There is no doubt that the parties will be unable to meet their legal expenses without some advance to assist them between now and the hearing. 

9. An order was made in 2017 providing for a payment to the wife of some $100,000.  The effect of the husband’s order is in essence to make the same provision for him and then equal provisions for he and the wife after that time.

10. That would render the earlier order moot and given the evidence before me I am not satisfied that this would, in all of the circumstances, be just and equitable.

11. Neither party has the income to meet their day to day needs including legal costs.  The orders I have made earlier in these proceedings will impose an obligation upon the husband to pay for supervision between now and at least December 2018 which will incur a cost to him of about $30,000.

12. What is clear to me, having considered all of the submissions by the parties and the affidavit evidence in support of each is that there is availability of $400,000. 

13. Each party has displayed some need for that money.  The pool of assets of the parties is such that an adjustment (if necessary) can be made to make any adjustment when the matter is finally determined.

14. In those circumstances I intend to make an order that each party is able to draw down $200,000 in capital against the ANZ account and I will so order.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 July 2018.

Associate: 

Date:  27 July 2018