VENNO and ISAACS - [2024] FCWA 92

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: VENNO and ISAACS [2024] FCWA 92
CORAM: O'BRIEN J
HEARD: 7 & 8 FEBRUARY 2022, 26, 27 & 28 JUNE 2023, 13, 14, 19 & 20 FEBRUARY 2024
DELIVERED : 9 MAY 2024
FILE NO/S: 3375 of 2019
BETWEEN: MR VENNO
Applicant
AND
MS ISAACS
Respondent

Catchwords:

PARENTING – where children aged 16 and nearly 12 have lived with the wife since separation, and initially were estranged from the husband – where allegations of inappropriate sexual behaviour on the part of the husband had been made, and the wife maintained false beliefs about those allegations for some time – where the children were exposed to those false beliefs – where more recently, and after therapy, the wife has acknowledged those beliefs were false and apologised to the husband – where findings have been made by consent that there was no inappropriate sexual behaviour on the part of the husband, and he poses no risk of harm to the children – where supervised and then limited unsupervised time between the children and the husband commenced but is progressing slowly – where both children have health issues, the older child is neuro diverse, and the younger child is being assessed for neurodivergence - where the husband seeks an immediate change of care for the younger child, utilising [The Program] offered by [Dr H] - where the court is unable to make a finding as to whether [Dr H] is appropriately qualified to express the opinions contained in his reports and evidence – where the methodology adopted by [Dr H] in reaching his firmly expressed opinions is fundamentally flawed – where [Dr H] did not demonstrate the objectivity, independence, and open-mindedness necessary if purported expert opinion is to be of probative value – where the proposed engagement with the program does not identify by name or qualification the proposed facilitators other than [Dr H] - where the proposed engagement with the program would inappropriately delegate to unnamed facilitators the power to determine when and on what basis the younger child would resume communication and time with the wife - where it is not in either child's best interests in any event for there to be a change of care – where the strongly expressed views of the children must be given weight, and attempting to act contrary to them would be counter-productive in any event.

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant
Indpendent Children's Lawyer	:	Ms M Chape

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant
Indpendent Children's Lawyer	:	Mary Chape Lawyer

Case(s) referred to in decision(s):

[2022] FCWA 114
[2022] FCWA 28
[2023] FCWA 249
Ajit & Thuvaragesh [2022] FedCFamC1A 80
Banks & Banks (2015) FLC 93-637
Bielen & Kozma (2022) FLC 94-123
Bondelmonte & Bondelmonte (2017) 259 CLR 662
Fencott v Muller (1983) 152 CLR 570

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.

Continue reading VENNO and ISAACS

Details

AGLC: VENNO and ISAACS [2024] FCWA 92
Case: [2024] FCWA 92
Decision Date: 9 MAY 2024

CaseChat Overview and Summary

The case of Venno and Isaacs arose in the Family Court of Australia, where a dispute regarding the care of two children, aged 16 and nearly 12, was adjudicated. The children had lived with their mother since the parents' separation, and the father had been estranged from them for some time due to allegations of inappropriate sexual behaviour against him, which the mother initially believed to be true. After therapy, the mother acknowledged the false nature of these beliefs and apologised to the father. The court was tasked with determining whether there should be a change of care for the younger child, considering the father's proposal to use a program offered by Dr. H.

The primary legal issue before the court was whether the proposed program by Dr. H was suitable for facilitating a change of care for the younger child. The court had to assess the qualifications and methodology of Dr. H, the objectivity and independence of his evidence, and the appropriateness of delegating decision-making power regarding the resumption of communication and time with the mother to unnamed facilitators. The court also needed to determine whether a change of care was in the best interests of the children, particularly given their strong expressed wishes to remain with their mother.

In its reasoning, the court found that Dr. H's qualifications and the methodology used to form his opinions were fundamentally flawed, lacking the objectivity and independence necessary for probative value. The court could not ascertain whether Dr. H was appropriately qualified to express the opinions contained in his reports and evidence. Additionally, the proposed engagement with the program did not specify the facilitators by name or qualification, and it would inappropriately delegate the power to determine when and on what basis the younger child would resume communication and time with the mother. The court concluded that it was not in the best interests of either child to change their care, particularly given their strongly expressed views against such a change.

The court's final orders were that no change of care should be implemented for the younger child, and the proposed program by Dr. H should not be utilised. The existing arrangements for supervised and then limited unsupervised time between the children and their father should continue, with the understanding that any future changes should be made with the children's best interests as the paramount consideration.

Orders