Josse & Vipen
[2024] FedCFamC1F 210
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Josse & Vipen [2024] FedCFamC1F 210
File number(s): CAC 80 of 2023 Judgment of: GILL J Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – PARENTING – Interim proceedings – Where the child lives with paternal grandmother and spends time with the mother – Where each party is alleged to expose the child to risk of neglect and abuse – Where the father faces criminal proceedings – Orders made for time to continue with the mother – Judgment reserved in relation to time spent with the father
FAMILY LAW – PRACTICE AND PROCEDURE – Where there is contestation regarding the appointment of a single expert – Director-General to make application to adduce evidence from expert – Where the father’s criminal proceedings may conflict with final hearing – Father to apply for adjournment if sought by 15 April 2024Legislation: Family Law Act 1975 (Cth) – ss 68Q and 69ZT Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 27 March 2024 Place: Canberra Solicitor for the First Applicant: Ms Gilbert, Gilbert & Partners Solicitor for the Second Applicant: Mr Chaudhry, MIC Lawyers Solicitor for the Respondent: Ms Storrier, JS Family Lawyers Solicitor for the Intervener: Mr Van Arkel, Community Services Directorate Solicitor for the Independent Children's Lawyer: Mrs Lloyd, Jeanine Lloyd & Associates ORDERS
CAC 80 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JOSSE
First ApplicantMS JOSSE
Second ApplicantAND: MS VIPEN
RespondentDIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
IntervenerINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.The matter is listed for trial commencing at 10 am on Monday 16 September 2024 for a period of five days.
2.The proceedings are in person proceedings.
IT IS NOTED THAT:
3.The father is currently facing criminal proceedings.
IT IS ORDERED THAT:
4.In the event that the father seeks to vacate those trial dates, then he is to file an application in a proceeding together with the material that he relies on in support of such by no later than 15 April 2024, at which point, if he so applies, the matter will be promptly listed to deal with whether or not the trial should be vacated.
5.The application in a proceeding filed by the paternal grandmother seeking recovery orders in respect of the child, Z, on 21 December 2023 are dismissed.
IT IS FURTHER NOTED THAT:
6.The Director-General has engaged a Dr D to prepare reports for the conduct of these proceedings. Such reports include mental health assessments for the parents, along with assessments of parenting capacity for the parents, the paternal grandparents and one of the siblings of the children. The taking of expert evidence from Dr D is at present a matter of contention between the parties and there is no unified position as to whether not she should be appointed as a single expert.
7.The taking of expert evidence from Dr D will require her to either be appointed as a single expert or for permission to otherwise be granted by the court for evidence to be taken for her in the event that she is not appointed as a single expert.
IT IS FURTHER ORDERED THAT:
8.In the event that the Director-General seeks to adduce evidence from Dr D in the proceedings before this court than the Director-General is to make such application pursuant to the rules of this court within 14 days of today’s date in support of doing so.
9.The giving of trial directions is adjourned to a date to be fixed.
10.Handover arrangements for Z are amended such that it will take place at the Suburb C shops, rather than immediately outside the paternal grandmother’s home.
IT IS NOTED THAT:
11.The above order which provides for the child Z to spend time and communicate with her mother, is inconsistent with the family violence order made in the Magistrates Court in early 2023 which prohibits the mother coming within 50 metres of the child or contacting her.
12.Pursuant to s 68Q of the Family Law Act 1975, to the extent of the inconsistency, these family law orders prevail.
13.The court is satisfied that the orders made today are in the best interests of the child in circumstances in which the father, who is also protected by the family violence order has been incarcerated but is now at liberty, but not otherwise to come in contact with the mother.
14.The court is satisfied that the orders present no unacceptable risk to the child.
15.The court will provide a copy of these orders to the registrar of the Magistrates Court, the Chief of Police and the Director-General of the Community Services Directorate.
IT IS FURTHER ORDERED THAT:
16.At the trial of this matter the rules of evidence as otherwise excluded by s 69ZT of the Family Law Act 1975 are applied, other than the hearsay rules.
17.In the event that a party seeks to adduce evidence in a hearsay form that party is required to identify the source of that hearsay material.
18.I direct that a registrar of this court forward to the Director of Public Prosecutions a copy of each of the affidavits filed by the parties in relation to these interim proceedings in so far as any of those affidavits indicate discussions between a person and the child Z in respect of the criminal prosecution of the father.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The court has indicated to the parties today that there is availability to list the final trial in these parenting proceedings on a date in September 2024. The listing on that date was supported by the mother, the Independent Children's Lawyer (“the ICL”) and the Director-General, with opposition by the father and in support of his opposition, opposition by the paternal grandmother.
The opposition of the father related to pending criminal proceedings faced by him that are entwined with the parenting proceedings in this case. The reason why those proceedings are entwined with this case is that this case principally involves one of the children between the parties, Z, and the criminal proceedings appear to involve various charges faced by the father in relation to sexual offences upon a child approximately the age of Z and said to be associated with Z.
There are risk issues said to arise in respect of Z by virtue of this behaviour if demonstrated against the father. At present there is little information about the progress of those proceedings or the exact parameters of the charges that the father faces, other than that he does face a number of criminal charges.
The evidence before the court has not set out whether or not he has faced committal for those charges and it might be supposed that the charges are purely indictable and so, if committed to stand trial, he would face proceedings in the Supreme Court. A timeframe for the resolution of those charges has not been set down before this court.
The father, noting the upcoming criminal proceedings, indicates to the court that he does not wish to be in a position where he might need to incriminate himself in the conduct of the family law proceedings in a manner adverse to the conduct of the criminal proceedings. He however says that he would comply with trial orders if the proceedings were set down for trial in September 2024.
I note that the father has sought to deal with this issue promptly upon it being raised, but has not had the benefit of taking further advice from his legal practitioners who have the carriage of the criminal proceedings. Often the outstanding nature of criminal proceedings that are entwined with family law proceedings will provide an adequate justification for the delay of family law proceedings pending the resolution of the other proceedings. In this case the parties have filed copious amounts of material for the conduct of an interim matter today. That material identifies highly polarised positions pursued by the mother and father, and generally in support of the father by the paternal grandmother. Each of the cases are replete with assertions that, if accepted, would indicate that Z’s care, welfare and development is at grave risk and that she is a child at grave risk of neglect and abuse and exposure to family violence. At present the nature of the contentious material filed by the parties does not indicate anywhere to be a safe haven for Z. Under those circumstances, notwithstanding the difficulties that might be presented to the father, at this stage and in the absence of the father having received further advice from his criminal lawyers the needs of Z and the protection of Z call for the matter to be set down promptly for a final trial, such final trial being the only venue in which her best interests can be adequately safeguarded given the nature of the material currently before the court.
It may be that on receiving further advice the father is able to place more cogent reasons before the court as to why, despite the urgency of the need to finally deal with Z’s well-being and he will be given the opportunity to do so should he elect to do so.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 27 March 2024
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