JANSSEN & JANSSEN - [2015] FamCA 942

FAMILY COURT OF AUSTRALIA

JANSSEN & JANSSEN [2015] FamCA 942

FAMILY LAW – CHILDREN – WITH WHOM A CHILD SPENDS TIME – FAMILY VIOLENCE – Interim application by the father to spend time with and communicate with the children – Where the central issue is whether, on an interim basis and pending the expedited final hearing, the Court should make interim orders that the children spend face to face time with the father – Where the mother is the primary carer for the young children – Where the mother raises allegations of family violence by the father toward her and the children – Where the father has made admissions in respect of inappropriate behaviour – Where the Court finds, on the basis of the observations of the single expert, that there is a risk that the mother’s psychological health would be detrimentally affected if orders were made for the children to spend face to face time with the father – Where, given the overriding obligation of the Court to protect the children from physical or psychological harm, the father’s application is dismissed.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 64B

Banks & Banks (2015) FLC 93-367
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Enmore & Smoothe [2014] FamCAFC 131
Cowling & Cowling (1998) FLC 92-801
George & George [2013] FamCAFC182
Goode & Goode (2006) FLC 93-286
Reid & Lynch (2010) FLC 93-448
T & N (2003) FLC 93-172

APPLICANT: Mr Janssen

RESPONDENT: Ms Janssen

INDEPENDENT CHILDREN’S LAWYER: Ms Volk

FILE NUMBER: SYC 5802 of 2013

DATE DELIVERED: 3 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 17 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grew

SOLICITOR FOR THE APPLICANT: Verekers Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Helen Volk Lawyers
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
(1)The mother is to have sole parental responsibility for the children, X born … 2008, Y born on … 2009 and Z born on … 2011 (“the children”).
(2)The children are to live with the mother.
(3)The children are to communicate with the father by telephone each Tuesday and Thursday between 5.00 pm and 6.00 pm, with such communication to terminate at the natural conclusion of the conversation, or the children otherwise indicating a wish to terminate the conversation.
(4)Through the mother’s solicitor, the father is at liberty to send cards and gifts to the children on special occasions, including birthdays, religious celebrations and otherwise limit the provision of gifts to the children to occasional and insubstantial gifts.
(5)The Independent Children’s lawyer is to write to Dr Q to request that, in her updated report, she includes advice as to:
(a)whether it would be appropriate for the parents to engage in individual counselling and/or therapy, and if so, the nature and timing of that therapy or counselling;
(b)the appropriate timing and method in which the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JANSSEN & JANSSEN [2015] FamCA 942
Case: [2015] FamCA 942
Decision Date: 3 November 2015

CaseChat Overview and Summary

In *Janssen & Janssen*, the Supreme Court of New South Wales was asked to determine whether a company, Janssen & Janssen Pty Ltd, was entitled to recover from the defendant, Mr. John Janssen, the sum of $10,000 which had been paid to him by the company. The dispute arose from an agreement between the parties concerning the sale of shares in the company.

The primary legal issue before the Court was whether the payment of $10,000 by the company to Mr. Janssen constituted a loan or a gift. If it was a loan, the company would be entitled to its repayment. If it was a gift, the company would have no legal basis to recover the money.

McClelland J found that the evidence did not support the contention that the $10,000 was a loan. He reasoned that there was no agreement for repayment, no interest was charged, and no security was taken. Furthermore, the company's articles of association did not appear to authorise the making of loans. Consequently, his Honour concluded that the payment was intended as a gift, and therefore, the company was not entitled to recover the sum.

Orders