VESEY & LYGON - [2017] FamCA 717

FAMILY COURT OF AUSTRALIA

VESEY & LYGON

[2017] FamCA 717

FAMILY LAW – CHILDREN – Allegations of abuse – Where both the mother and father have a long history of illicit substance abuse – Where the mother and father have criminal convictions – Where the father has intellectual impairments and an Anxiety Disorder with depressive features – Where the mother has Schizoaffective Disorder – Where the Mother makes allegations that the father raped the children – Court found that the children have suffered significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to the actions of both the mother and father – Court found there is an unacceptable risk of future harm to the children – Where the Department of Communities, Child Safety and Disability Services have been requested to remove the children from the mother.

Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)

Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582

APPLICANT:

Mr Vesey

RESPONDENT:

Ms Lygon

INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

FILE NUMBER:

BRC

125

2007

DATE DELIVERED:

15 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28, 29 and 30 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Seaholme

SOLICITOR FOR THE APPLICANT:

Power Legal

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

Orders

The Court having made the following findings:

a)B born … 2002 and C born … 2006 have suffered significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to the actions of their parents namely Ms Lygon born … 1985 (“the mother”) and Mr Vesey born … 1977 (“the father”).
b)There is an unacceptable risk of future harm to B born … 2002, C born … 2006 and D born … 2014 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the mother.
c)There is an unacceptable risk of future harm to B born … 2002 and C born … 2006 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the father.

It is respectfully requested that the Department of Communities, Child Safety and Disability Services (Qld) (“the Department”) take all necessary steps to forthwith remove B born … 2002, C born … 2006 and D born … 2014 from the mother.

IT IS ORDERED

All previous parenting orders be discharged.
Pending the removal of B born … 2002 and C born … 2006 (“the children”) from the mother, the father is restrained and an injunction hereby issues restraining the father from removing the children from the mother or spending time…

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.

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Details

AGLC: VESEY & LYGON [2017] FamCA 717
Case: [2017] FamCA 717
Decision Date: 15 September 2017

CaseChat Overview and Summary

In the Family Court of Australia, Carew J considered the welfare of three children, B (born 2002), C (born 2006), and D (born 2014), in proceedings involving their parents, Ms Lygon (the mother) and Mr Vesey (the father). The dispute concerned the significant harm the children had already suffered due to the actions of both parents, and the unacceptable risk of future harm, including sexual abuse, physical abuse, psychological abuse, exposure to family violence, and neglect, posed by each parent.

The court was required to determine the extent of harm already suffered by the children and the nature and source of the unacceptable risk of future harm to them. Specifically, the court needed to assess whether the mother posed an unacceptable risk of future harm to all three children, and whether the father posed an unacceptable risk of future harm to B and C.

Carew J found that B, C, and D had suffered significant detrimental harm to their physical, psychological, and emotional wellbeing due to the actions of their parents. The court further determined that there was an unacceptable risk of future harm to B, C, and D from the mother, and an unacceptable risk of future harm to B and C from the father. Applying principles of child protection, the court ordered the discharge of all previous parenting orders. Pending the removal of the children from the mother, the father was restrained from removing them or spending time with them except as organised by the Department of Communities, Child Safety and Disability Services (Qld), with supervised time to occur in the interim. The mother was also restrained from changing the children's residence or removing B and C from their respective schools. The independent children's lawyer was discharged.

Orders

Orders of the court

The Court having made the following findings:

a) B born … 2002 and C born … 2006 have suffered significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to the actions of their parents namely Ms Lygon born … 1985 (“the mother”) and Mr Vesey born … 1977 (“the father”).

b) There is an unacceptable risk of future harm to B born … 2002, C born … 2006 and D born … 2014 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the mother.

c) There is an unacceptable risk of future harm to B born … 2002 and C born … 2006 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the father.

IT IS ORDERED

All previous parenting orders be discharged.

Pending the removal of B born … 2002 and C born … 2006 (“the children”) from the mother, the father is restrained and an injunction hereby issues restraining the father from removing the children from the mother or spending time with them other than at times that may be organised by the Department and until such times are organised by the Department the father spend time with the children each alternate Saturday commencing 16 September 2017 between 11am and 3pm to be supervised by a person appointed by the Department and until such time as the Department appoints a person, then the time may be supervised by Ms E, a religious minister.

Pending the removal of the children from the mother, the mother shall ensure that she takes all steps necessary to ensure that the children spend time with the father as provided in paragraph (2) or this order.

Pending the removal of the children from the mother, the mother is restrained and an injunction hereby issues restraining the mother from changing the children’s residence at G Street F Town or from removing B from F Town State Secondary College and C from F Town State School.

The independent children’s lawyer is discharged.

NOTATION

Senior Registrar Spink of the Family Court of Australia, Brisbane Registry, is requested to forthwith provide a copy of this Order and Reasons for Judgment to the Director-General of the Department of Communities, Child Safety and Disability Services (Qld) (a draft of the Reasons for Judgment having already been provided on 14 September 2017).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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