Josse & Vipen (No 4)

Case [2024] FedCFamC1F 890

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Josse & Vipen (No 4) [2024] FedCFamC1F 890

File number(s): CAC 80 of 2023
Judgment of: CURRAN J
Date of judgment: 18 October 2024
Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the father is presently on remand at F Correctional Centre pending charges – Where the child lives with the paternal grandmother and spends time with the mother – Issues of risk in both households – Where it has previously been held that it is in the best interests of the child to remain with the paternal grandmother pending final trial – Where the trial date was vacated –Allegations the paternal grandmother breached orders, facilitating time and communication between child and father – Consideration of safety of the child – Orders made for child to live with the mother and spend time with paternal grandmother
Legislation:

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61D, 64B, 65DAA, 69ZL

Convention on the Rights of the Child
Cases cited:

Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) 206 FLR 212; 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346

In the Marriage of B & R (1995) 127 FLR 438; 19 Fam LR 594; FLC 92-636

Isles & Nelissen (2022) FLC 94-092; 65 Fam LR 288; [2022] FedCFamC1A 97

Malcher & Malcher (No.2) [2012] FamCA 1115

Marvel & Marvel (2010) 240 FLR 367; 43 Fam LR 348; [2010] FamCAFC 101

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 160
Date of hearing: 18 September & 16 October 2024
Place: Sydney
Counsel for the Applicant: Ms Baker-Goldsmith
Solicitor for the Applicant: JS Family Lawyers
The First Respondent: The First Respondent appeared in person
Counsel for the Second Respondent: Mr Mando
Solicitor for the Second Respondent: Mic Lawyers
Counsel for the Third Respondent: Ms Davis
Solicitor for the Third Respondent: U Solicitors
Counsel for the Independent Children's Lawyer: Mr Stagg
Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates

ORDERS

CAC 80 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS VIPEN

Applicant
AND:

MR JOSSE

First Respondent

MS JOSSE

Second Respondent

CHILD YOUTH PROTECTION SERVICES

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

18 OCTOBER 2024

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.All previous orders are discharged.

2.The mother and the Director-General shall have parental responsibility and joint decision making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) in respect to the child, Z born 2012.

3.Z shall live with the Mother commencing from 10.00am Sunday 20 October 2024.

4.Z shall spend time with the…

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Details
AGLC
Josse & Vipen (No 4) [2024] FedCFamC1F 890
Case
[2024] FedCFamC1F 890
Decision Date

CaseChat Overview and Summary

In the matter of Josse & Vipen (No 4), the Federal Circuit and Family Court of Australia (Division 1) considered interim parenting arrangements for Z, a child currently residing with her paternal grandmother. The case revolved around the safety and best interests of Z, particularly in light of allegations of family violence and drug use by both parents. The court was tasked with deciding whether Z should continue to reside with her paternal grandmother or if she should live with her mother, while also addressing the supervised contact with her father who is currently on remand.

The central legal issues included the assessment of risk and safety for Z, the consideration of the statutory criteria outlined in s 60CC of the Family Law Act 1975, and the impact of family violence orders on the parenting arrangements. The court needed to balance the statutory considerations of risk and safety with the child's views and the additional considerations for Aboriginal or Torres Strait Islander children.

The court's reasoning involved a detailed analysis of the evidence presented, weighing the contested facts against the objective evidence and agreed facts. The court emphasised the need to consider all circumstances, including historical conduct, to assess the likelihood of future harm. The decision recognised the complexity of the case, with significant allegations from both parties that could potentially expose Z to risk. The court concluded that the safest interim arrangement for Z was to live with her mother, with supervised contact with both her paternal grandmother and father. The court also made specific orders to protect Z and to ensure compliance with the safety and welfare provisions.

The final orders discharged all previous orders and established new arrangements for Z's living situation and contact with both parents. Z was to live with her mother, with supervised time with her father and conditional supervised time with her paternal grandmother, contingent on compliance with court orders. The court also included specific restraints and obligations for both parents to ensure Z's safety and well-being.

Orders

Orders of the court

CAC 80 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VIPEN

Applicant

AND:

MR JOSSE

First Respondent

MS JOSSE

Second Respondent

CHILD YOUTH PROTECTION SERVICES

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

18 OCTOBER 2024

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. All previous orders are discharged.

2. The mother and the Director-General shall have parental responsibility and joint decision making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) in respect to the child, Z born 2012.

3. Z shall live with the Mother commencing from 10.00am Sunday 20 October 2024.

4. Z shall spend time with the father, professionally supervised on a weekly basis as arranged by the Director General.

5. Z shall communicate with the Father professionally supervised on a weekly basis as arranged by the Director General via Skype or AVL.

6. The Father and the Paternal Grandmother be permitted to send cards and/or gifts to Z on her birthday and at Christmas via the mother's postal address.

Restraints

7. Each party be restrained by injunction by themselves, their servants and/or agents from:

(a) denigrating the other in the presence or hearing of the child or permitting any person to do so;

(b) Questioning Z about the personal life of the other parties;

(c) Physically disciplining Z;

(d) allowing the child to read any correspondence, documents or reports generated in connection with these proceedings or any communications between the parties concerning the parenting arrangements for the Z;

(e) discussing the Father’s criminal proceedings in the presence or the hearing of the Z.

(f) exposing Z to abuse or family violence (including verbal, psychological and emotional abuse), and that each party will take all measures necessary to remove the child from an incident of family violence should such circumstances arise.

8. Each party is required to notify the others, including the ICL and the Director-General, within 24 hours of any of the following occurring:

(a) The attendance of the Police or CYPS at their residence;

(b) The interviewing of themselves, any child in their care or any member of their household by the Police or CYPS;

(c) Any member of their household being arrested or charged with any offence;

(d) Having any child, including but not limited to the Z, in their household removed by the Police or CYPS;

(e) Being named as the defendant or protected person in any FVO or similar order for personal protection;

(f) Being admitted into a rehabilitation program; or

(g) They, or anyone in their household, being admitted into hospital as a result of a mental health or alcohol or drug related illness or injury; or

(h) The Father applying for bail and the outcome of such application.

9. The Mother is restrained from changing the enrolment of Z from L School.

10. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father be and are hereby restrained from doing the following with respect to the Mother and/or Z:

(a) assaulting, harassing, threatening or intimidating Z or the Mother.

(b) engaging in behaviour that constitutes family violence towards the mother or Z;

(c) approaching or being within 100 metres of the Mother or Z, except:

(i) at a Court or Tribunal proceeding;

(ii) at a counselling or mediation session; and

(iii) unless agreed in writing by the Mother and the Director-General;

(iv) in accordance with an Order of this Court; or

(v) at changeover for Z.

11. Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 10 is an injunction for the personal protection of the mother and for Z born 2012.

12. Ms Josse (“the Paternal Grandmother” is restrained by injunction (“the injunction”) from:

(a) allowing or permitting Z to come into any form of contact, spend any time or to have any communication, with the Father, including during telephone/video calls, and/ or

(b) allowing or permitting Z to come within 100 metres of any home where the Father may reside or be present.

Time with the Paternal Grandmother - conditional

13. The Paternal Grandmother shall enter into a written undertaking in a form provided by the ICL and file that undertaking with the Court (“the undertaking”). The undertaking is to be filed within 7 days.

14. Z's unsupervised time with, and communication with, the paternal grandmother pursuant to these Orders is conditional upon her ongoing compliance with the injunction in Order 12 and the undertaking in Order 13.

Time with Paternal Grandmother - if Paternal Grandmother complies with injunction and undertaking

15. Conditional upon the Paternal Grandmother's compliance with the injunction in Order 12 and the Undertaking in Order 13, Z shall spend time with the Paternal Grandmother as agreed, but failing agreement as follows:

(a) Commencing on 26 October 2024, and each alternate Saturday thereafter, from 9:00 am until 5:00 pm.

(b) Changeover will occur by the Mother arranging for Z to be delivered to and collected from Suburb C shops.

Time with Paternal Grandmother - if Paternal Grandmother does not comply with Injunction and Undertaking

16. In the event that the paternal grandmother does not give the undertaking to comply with the restraints herein, Z shall spend supervised time with the Paternal Grandmother at K Family Services (“the Contact Centre”) at the first available opportunity, and thereafter at such regular times as the Centre can accommodate, but on not less than once per fortnight for a period of two (2) hours, unless unavailable, and for that purpose:

(a) Within seven (7) days each party shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Contact Centre; and

(b) The Paternal Grandmother be liable for any costs of spending time at the Centre.

Other Matters

17. Within 28 days the mother and the Director-General do all acts and things necessary for Z to be referred to a paediatrician or other qualified assessor as nominated by the Director-General at the expense of the Director-General to undertake an assessment for ADHD and ASD.

18. The mother and the Director-General do all acts and things necessary for Z to be enrolled in trauma informed counselling as nominated by the Director-General at the expense of the DG.

19. The above order which provides for the child Z to live with her mother, is inconsistent with the family violence order made in the Magistrates Court in early 2023 noting that it will which prohibits the mother coming within 50 metres of the child or contacting her.

20. Pursuant to s 68Q of the Family Law Act 1975, to the extent of the inconsistency, these family law orders prevail.

21. The ICL shall meet with Z to explain the effect of the interim orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These proceedings relate to the interim arrangements only in respect of Z. Z is presently living with the paternal grandmother and spending time with the mother each Sunday.PROCEDURAL 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 10.00am until 6.00pm. Her Honour made orders restraining the paternal grandmother from facilitating any contact between Z and the father 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; On 13 February 2024 Judge Hughes made orders transferring the proceedings to the Federal Circuit and Family Court of Australia (Division 1) and made further orders restraining the father from coming into contact or communicating with Z, noting that the father had been arrested in 2023 and remanded in custody on charges involving another person. The father entered a plea of not guilty on all charges and was granted bail. 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 during a period when he was on bail. On 8 April 2024 Gill J heard competing applications for the child to reside with the paternal grandmother or to reside with the mother. His Honour made no change to the existing live with orders of Judge Hughes. The order prohibiting the paternal grandmother from facilitating contact between Z and the father (Order 11 of 19 December 2023) was made subject to orders for supervised time. Those orders made by Gill J set out:1.The father is to spend professionally supervised time with [Z] on a weekly basis, as arranged by the Director-General, pending final hearing of the matter. Similarly, the order restraining the father from coming into contact or communicating with Z (Order 2 of 13 February 2024) was subject to the orders for supervised time made on 8 April 2024. A Family Violence Order dated early 2023 prohibits the mother coming within 50 metres of Z or contacting her. Justice Gill noted in orders dated 27 March 2024 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.THE PARTIES' PROPOSALS The applicant mother, the ICL, and the Director-General were largely united in their application that Z live with the mother, continue to spend only supervised time with the father in accordance with the orders made by Gill J, and that Z should spend time with the paternal grandmother. The time with the paternal grandmother would occur only after the paternal grandmother provided an undertaking to the court that she would comply with the orders of Judge Hughes and Gill J and not bring Z into contact with or communicate with the father, unless professionally supervised.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Another identified risk as detailed by Dr D was the potential risk of Z being exposed to other drug users, in particular allegations that some of her siblings have used drugs. Despite this having been reported to Dr D, I was not taken to any evidence sufficient to make a finding that this is a current risk to Z’s safety. Again, no doubt these matters will be fully explored at the final hearing of this matter. Conclusion on risk to Z’s safety on an interim basis At this stage of the proceeding, the Court will place weight on agreed facts and objective evidence and less weight on contested facts. However, the contested evidence includes allegations capable of exposing Z to ongoing significant risk, those allegations simply cannot be ignored. The Court must weigh all the evidence as best it can, mindful of the statutory considerations. Section 60CC(2A) of the Act provides that in considering the matters set out in s 60CC(2)(a), the Court must consider any family violence order that applies to the children and the parents and any history of family violence, abuse or neglect involving the children or a person caring for them. In considering this criterion there are a number of matters which inform the Court. The assessment of risk is a predictive or prospective exercise based on known facts and circumstances. It entails the foresight of possible future harm. The Court must assess the degree of likelihood or possibility of harmful events occurring in the future. The Court must also consider the extent, magnitude and nature of the harm that may flow to the children if a harmful event occurs. If a finding of unacceptable risk is made or a finding that a child's safety is compromised is made, it is necessary to assess whether safeguards can be put in place to ameliorate or mitigate that risk such that the child can maintain a relationship with the other parent. The safeguards must be proportionate to the degree of risk. If the serious allegations made by the mother are substantiated at trial, there is a realistic possibility, perhaps a significant possibility, that the Court would conclude that the father presents an unacceptable risk. Conversely, if the father establishes that the mother's allegations are fabricated, exaggerated or without substance, it is possible that she might be viewed as an unacceptable risk. Indeed, the mother’s drug use if it is established that it continues would also create evidence that the mother may be an unacceptable risk. The issues of risk and safety feature in this matter. The available evidence weighs in favour of the mother's proposal, as supported by the ICL and the Director-General, that there should be supervised time with the father and supervised time with the paternal grandmother if she remains unprepared to provide and undertaking to comply with the existing court orders not to bring Z into contact with her father unless it is professionally supervised.s 60CC(2)(b) - any views expressed by the child Z has been spoken to by many people. She has been recorded as reporting different views to different people. The CYPS notes from March 2023 record Z as saying “Dad told me to tell the solicitor that I want to live with him, I told the solicitor that I want to live with mum because she said she wouldn't tell him. I asked how she would feel if she was made to live with her dad, she shrugged and said 'I'm used to it'. I asked how this makes her feel, she said a ‘bit disappointed’.”

Ratio Decidendi

Legal Principle Established

Z is an Aboriginal or Torres Strait Islander child, and accordingly, the court must also consider the matters set out in s 60CC(3) in determining what is in the child’s best interests. Section 60CC(3) sets out the additional considerations and is as follows:Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture (3) For the purposes of paragraph (1)(b), the court must consider the following matters:(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and (ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (iii) to develop a positive appreciation of that culture; and (b) the likely impact any proposed parenting order under this Part will have on that right. Assessment of safety considerations In my view an assessment of “safety” as required under s 60CC(2)(a) requires a similar analysis of risk of harm as established by the previous iteration of s 60CC of the Act and also as established in case law. The arrangements must promote the safety of the child but also the safety of each person who has care of the child. Per Isles & Nelissen (2022) FLC 94-092, in assessing risk the Full Court enumerated the necessity to consider to all of the circumstances, including historical conduct, in determining whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future. In the decision of Eastley & Eastley [2022] FedCFamC1A 101; FLC 94–094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion as set out at [33]:…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]). Parliament has removed the requirement to have the need to protect the child from harm as the primary consideration above all other factors. What has changed is that the Court is now required to assess safety as one of many factors to be required to be considered under s 60CC(2).