Josse & Vipen (No 2)

Case [2024] FedCFamC1F 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Josse & Vipen (No 2) [2024] FedCFamC1F 222

File number(s): CAC 80 of 2023
Judgment of: GILL J
Date of judgment: 8 April 2024 
Catchwords:  FAMILY LAW – PARENTING – Interim proceedings – where the child lives with the paternal grandmother and spends time with the mother – where there are issues of risk in both households – held that it is in the best interests of the child to maintain stability and remain with the paternal grandmother pending final trial – where the father faces criminal proceedings – where it was agreed between the parties for the child to spend professionally supervised time with the father.  
Legislation: Family Law Act1975 (Cth) – ss 60B, 60CA, 60CC, 60CG and 65DAA
Cases cited:

Eaby & Speelman (2015) FLC 93-654

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Goode & Goode (2006) FLC 93-286

Isles & Nelissen [2022] FedCFamC1A 97

Salah & Salah [2016] FamCAFC 100

SS v AH [2010] FamCAFC 13

Division: Division 1 First Instance
Number of paragraphs: 42
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 Applicant

MS JOSSE

Second Applicant
AND:

MS VIPEN

Respondent

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 APRIL 2024

THE COURT ORDERS THAT:

1.The father is to spend professionally supervised time with X on a weekly basis, as arranged by the Director-General, pending final hearing of the matter.

2.Order 11 of the orders made by Judge Hughes on 19 December 2024 remains, subject to the father spending professionally supervised time with Z in accordance with Order 1 above.

3.Order 2 of the orders made by Judge Hughes on 13 February 2024 remains, subject to the father spending professionally supervised time with Z in accordance with Order 1 above.

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…

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Details
AGLC
Josse & Vipen (No 2) [2024] FedCFamC1F 222
Case
[2024] FedCFamC1F 222
Decision Date

CaseChat Overview and Summary

The matter of Josse & Vipen (No 2) involved the parties in an ongoing dispute regarding the care and custody of a child, Z. The child currently resides with the paternal grandmother and is scheduled to spend time with the mother under interim orders. The father, who faces criminal charges related to child sexual assault, has also sought supervised contact with Z. The Federal Circuit and Family Court of Australia was tasked with determining the interim arrangements for Z's care, considering the various risks and benefits associated with each household.

The court was required to decide the best interim arrangements for Z's care, weighing the risks and benefits of Z living with the paternal grandmother, the mother, and the father. The court needed to consider the allegations of risk in each household and how these risks could be mitigated, particularly in relation to the father's pending criminal charges. The court also needed to decide whether Z should have supervised contact with her father and how this could be arranged while ensuring her safety.

In making its decision, the court considered the best interests of Z, as outlined in the Family Law Act 1975. The court found that it was in Z's best interests to maintain stability and continue living with the paternal grandmother pending the final hearing. The court recognised that while there were risks associated with each household, the risk of abuse from the father could be mitigated through professionally supervised contact. The court emphasised the importance of fostering Z's relationship with her father under safe conditions and ensuring that Z's contact with her mother and father was managed in a way that protected her from potential harm.

The court ordered that Z would continue to live with the paternal grandmother and spend time with the mother on Sundays. The court also ordered that the father would have professionally supervised contact with Z, arranged by the Director-General. The court made these orders subject to the existing orders restraining contact between Z and the father and the paternal grandmother facilitating any contact between Z and the father. The court did not alter the existing orders regarding parental responsibility for Z pending the final hearing.

Orders

Orders of the court

CAC 80 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR JOSSE

First Applicant

MS JOSSE

Second Applicant

AND:

MS VIPEN

Respondent

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 APRIL 2024

THE COURT ORDERS THAT:

1. The father is to spend professionally supervised time with X on a weekly basis, as arranged by the Director-General, pending final hearing of the matter.

2. Order 11 of the orders made by Judge Hughes on 19 December 2024 remains, subject to the father spending professionally supervised time with Z in accordance with Order 1 above.

3. Order 2 of the orders made by Judge Hughes on 13 February 2024 remains, subject to the father spending professionally supervised time with Z in accordance with Order 1 above.

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.

Background

Background to the litigation

The last aspect of this dispute was ultimately agreed by the parties, that Z will spend time with the father, but only on a professionally supervised basis. THE IMMEDIATE LITIGATION BACKGROUND On 19 December 2023 Judge Hughes made orders that the paternal grandmother have sole parental responsibility for Z, that Z live with the paternal grandmother, and that Z spend time with her mother each Sunday from 10 am to 6 pm. Judge Hughes made orders in relation to the father spending time with Z as follows: 11. The paternal grandmother is restrained from: a.Facilitating any contact between the child and her father or allowing anyone else to do so; b.Bringing the child into direct or indirect contact or communication with [B] (the alleged victim in relation to the father’s current criminal charges) or allowing anyone else to do so; and c.Using smacking or any other form of corporal punishment as a means of discipline of the child. On 13 February 2024 Judge Hughes made orders transferring the proceedings to the Federal Circuit and Family Court of Australia Division 1 and further orders restraining the father from coming into contact or communicating with Z, noting that the father had been arrested in late 2023 and remanded in custody on child sexual assault charges involving another young person. The father stated he entered a plea of not guilty on all charges and was granted bail. The bail conditions, dated early 2024, include: 9.Not be in the company of a person under the age of 18 unless also in the direct company of another adult. Despite the orders that prevented the paternal grandmother from allowing Z to come into contact with the father, the father spent time with Z at his home, supervised by Ms E. Shortly thereafter the father’s solicitor spoke with the solicitor for the Director-General and advised of the error and the breach “were in fact her fault”. There is a Family Violence Order dated early 2024 which prohibits the mother coming within 50 metres of Z or contacting her. Pursuant to interim orders the mother is currently spending each Sunday from 10 am to 6 pm with Z. PRINCIPLES The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (“the Act”), the best interests of each child. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence. Further, where applicable, s 65DAA sets out a reasoning pathway to be followed. In this case, little attention was given to the factors bearing upon parental responsibility for Y and X or for Z. The focus of the proceedings was largely upon Z, and the various risks to Z from the paternal grandmother, the mother and the father, weighed along with the benefits for Z of spending time with her mother and father. These were in turn weighed against the context of a final hearing set to occur in the near future, and the benefits of securing some stability in Z’s circumstances.

Evidence

Evidence Before The Court

The limitations inherent to interim proceedings necessarily form a part of the consideration of risk. THE EVIDENCE The affidavit material produced by each of the parties (noting the Director-General produced none for the interim hearing) was, at best, chaotic. The parties traversed issues that were not directed to the scope of the interim dispute, but which at least made clear the high level of antipathy shared between the mother and father, the mother and the paternal grandmother, and the alignment of the father and the paternal grandmother. However, what was also identified by the material were various risk issues said to flow from Z being in the care of the mother or the paternal grandmother. Risk was not apparent in respect of the father in the event that time was, as agreed between the parties, to be professionally supervised. That amelioration of risk in respect of the father, when seen in the light of the family report that identified a positive relationship between Z and the father, meant that, pending the final hearing of the matter, that relationship ought to be fostered but under circumstances that protect Z from the potential of abuse from her father, noting the extant allegations of sexual abuse of another child. The father’s affidavit material recounts that the paternal grandmother has told him of discussions between herself and Z regarding the criminal allegations involving the father, in particular, allegations that the mother has been discussing such with Z. He further recounts spending time with Z following his release from remand (as identified above), including discussion with Z about the mother and Z’s siblings discussing with her the allegations against the father. The father further recounts allegations of violence between various siblings and family members. The paternal grandmother asserted circumstances that, if accepted, are suggestive that risks for Z arise in the mother’s care due to drug use and violence. She denied that the father presents a risk due to current drug abuse, although she accepted that he had used drugs (presumably illicit) until 2021. The mother produced a report from a psychiatrist to the father’s general practitioner from 2004 describing his drug use, and that he suffered from PTSD and Attention Deficit Disorder and a medical condition. A referral report from F Correctional Centre from late 2023 recorded the father as reporting a previous self-harm attempt, but at that time denying thoughts of suicide or self-harm. Further records from F Correctional Centre disclosed that the father was facing charges of sexual offences with an underage person. A Corrective Services bail support plan recorded the father as seeing a mental health service weekly for treatment for mental health disorders. Material from the Child and Youth Protection Services (“CYPS”) recorded a conversation with Ms G (a sibling of the children) in the presence of the mother, apparently from February 2023, by inference to a caseworker, with Ms G complaining that the paternal grandmother would smack her, and verbally abuse her, and that the paternal grandmother had pulled Z’s hair. Ms G further alleged that the father had touched her areas that he should not be touching, and that she had seen him “dry hump” Z.

Decision

Reasons for decision

In the absence of identification by the parties of factors to amend the current parental responsibility regime for any of the children, no change should be made pending the final hearing. CONCLUSION No alteration will be made to the orders for Z to live with the paternal grandmother and spend time with the mother, nor to the allocation of parental responsibility for Z. The order prohibiting the paternal grandmother from facilitating contact between Z and the father (Order 11 of 19 December 2023) will be made subject to the orders for supervised time otherwise made today. Similarly, the order restraining the father from coming into contact or communicating with Z (Order 2 of 13 February 2024) will be subject to the orders for supervised time. In the absence of the parties filing an agreed minute as to the terms of the professionally supervised time that the father will spend with Z, orders will be made for Z to spend professionally supervised time with the father as arranged by the Director-General, to the extent available, on a weekly basis pending the final hearing of the matter.

Ratio Decidendi

Legal Principle Established

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