Josse & Vipen (No 2)
[2024] FedCFamC1F 222
•8 April 2024
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 to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The applicant father, Mr Josse, born 1977, and the respondent mother, Ms Vipen, born 1974, commenced living together in 1999 and ultimately finally separated in 2022. There are seven children of the relationship. The children range in age from 23 to 12 years.
The paternal grandmother, Ms Josse, is a party to the proceedings. The Director-General of the Community Services Directorate was joined as a party to the proceedings as intervenor on 21 December 2023.
These proceedings involve the children Z, born 2012 (aged 11), X, born 2006 (aged 17) and Y, born 2008 (aged 15). Insofar as the proceedings relate to X and Y, they are directed primarily to parental responsibility, no party seeking to determine the time that they will spend with the parents. The contest in relation to Z has a number of elements, being whether Z will live with the mother or the paternal grandmother, whether she will spend unsupervised time with the mother, who will exercise parental responsibly for her, and whether she will have time with the father.
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.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah, where it was observed that “it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[1] Reflecting the earlier case of Goode & Goode, it was accepted that the court in interim proceedings should not be drawn into:
…issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...[2]
[1] Salah & Salah [2016] FamCAFC 100 at [36].
[2] Goode & Goode (2006) FLC 93-286 at [68].
Importantly, however, it was accepted, as identified in Eaby & Speelman, that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[3]
[3] Eaby & Speelman (2015) FLC 93-654 at [18].
That is, the court, despite the limitations on testing the evidence, and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH identified:
…weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[4]
[4] SS v AH [2010] FamCAFC 13 at [100].
Given that the key issue raised to justify the departure from the current orders is that of risk, it is important to recognise the nature of the court’s function in assessing such, even in the context of the limitations imposed by the interim nature of the proceedings. In Isles & Nelissen,[5] the approach to risk was adopted (at [50]) from Fitzwater[6] as:
a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.[7]
[5] Isles & Nelissen [2022] FedCFamC1A 97.
[6] Fitzwater v Fitzwater (2019) 60 Fam LR 212.
[7] Isles & Nelissen [2022] FedCFamC1A 97 at [138].
It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, the court accepted from Fitzwater in a different, but analogous, context of risk of sexual abuse that:
It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).[8]
[8] Ibid [140].
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.
Further CYPS material, apparently on interview between Z and a caseworker, recorded Z denying that the father had behaved sexually toward her, and denying that the mother was on drugs.
The mother produced notes from a general practitioner, apparently relating to the mother, in 2021, describing violence and self-harm on the part of the father, the mother’s mental health and drug use.
A document from 2024 appears to support that the mother is prescribed medicinal cannabis, with a hair follicle test from February 2024 appearing to show the mother clear from various drugs.
A family report prepared in October 2023 was tendered. It supported a number of contentions:
(a)Z had expressed a willingness to live with her father;
(b)Z was unaware of an issue between the father and her sister Ms G (there being an allegation that the father had sexually abused Ms G);
(c)Z appeared affectionate toward the father;
(d)The mother expressed commitment to retaining Z in her then current school even if Z was to move into the mother’s care, and that the mother expressed a commitment to maintaining both parent’s relationships with Z;
(e)That the mother appeared to have engaged with community supports for the previous two years, and appeared to have benefitted from the medical and psychological support that she had received;
(f)That the father had provided no reassurance that he had engaged with mental health or other support to deal with alcohol abuse that presented as a risk factor if Z was to be in his care;
(g)That if the mother was considered to be protective that Z would benefit in spending significantly more time with her;
(h)That the children appeared comfortable and relaxed with the mother;
(i)That caution should be exercised in relation to the expression of wishes by Z due to potential influence from the parents;
(j)That Z requires “a degree of stability in her life as she prepares to focus more each year on education, friendships and her future.”
DISCUSSION
As noted above, the parties reached the common position that there should be an order for Z to spend professionally supervise time with her father. Given the sexual abuse of an underage person allegations against the father that are being pursued in the criminal courts, it is appropriate that measures are in place to ensure that Z is not at unacceptable risk of harm if spending time with the father. Professionally supervised time achieves such a result. It also provides a means by which Z is able to continue to enjoy the positive aspects of relationship with the father as identified by the family report writer, pending final hearing.
The position was less clear as to whether Z should live with the mother or the paternal grandmother, each identifying matters that, if established, provide a basis to consider Z would be at risk in each of their care. In the interim consideration of the case, and given the nature of the evidence led, it is not possible to exclude or to sustain the underlying accusations, and in this case it may be considered that there is risk for Z in either the mother’s or the paternal grandmother’s homes.
The position taken by the Independent Children’s Lawyer (“the ICL”) and the DCJ was to leave Z in the primary care of the paternal grandmother. The ICL observed in particular the desirability for stability for Z, and the prospect inherent to the upcoming final trial that if Z’s place of residence is changed now it may shortly be subject to change again following that final hearing.
Where, at present there appears to be risk in either household, which appears to fall short of a risk of serious immediate harm, the stability issue raised by the ICL, the importance of which was emphasised in the family report, carries determinative weight in supporting Z’s best interests.
Accordingly, orders should permit the current arrangement to continue.
While the paternal grandmother sought that Z’s time with the mother be restricted to supervised time, the immediate risks identified do not require such protections. Rather, given the hostility apparent on the part of the paternal grandmother to the mother, the current regime of unsupervised time should continue on the basis that it provides better circumstances to support Z’s relationship with the mother.
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.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 8 April 2024
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