Vogel & Arcas

Case [2024] FedCFamC2F 1681


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vogel & Arcas [2024] FedCFamC2F 1681

File number(s): DNC 178 of 2022
Judgment of: JUDGE LIVERIS
Date of judgment: 25 November 2024
Catchwords:  FAMILY LAW – PARENTING – child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship
Legislation:

Evidence Act 1995 (Cth) s 140(1)

Family Law Act 1975 (Cth) ss 4, 60CC(2)

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Denton & Denton (No 3) [2024] FedCFamC1F 476

Fitzwater v Fitzwater [2019] FamCAFC 251

Grella & Jamieson [2017] FamCAFC 21

Heijman & D’Onofrio [2024] FedCFamC1F 551

Isles & Nelissen [2022] FedCFamC1A 97

Jones v Dunkel (1959) 101 CLR 298

Keane & Keane [2020] FamCA 99

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

In the Marriage of M & J Bieganski [1993] FamCA 143; (1993) 16 Fam LR 353

Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law
Number of paragraphs: 170
Date of hearing: 23 – 26 July 2024
Place: Darwin
Solicitor for the Applicant: Julie Holtham, Story & Associates
Counsel for the Respondent: Mr Fernandez
Solicitor for the Respondent: Thelma Gray, Grays Legal NT
Solicitor for the Independent Children's Lawyer: Pamela Tregear, Arafura Legal

ORDERS

DNC 178 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR VOGEL

Applicant

AND:

MS ARCAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIVERIS

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The child X, born in 2019 live with the father.

2.The father have sole parental responsibility for the child subject to the following:

(a)The father shall not change the child's name without first obtaining the written consent of the mother;

(b)The father shall not change where the child lives if such change will impact on the time the child spends with the mother; and

(c)The father shall inform the mother of any major decision made concerning the child's health, education, welfare or development, within seven (7) days of that decision being made.

3.The child be enrolled in counselling such as play therapy, and the father ensures that any recommendations of any professional counsellor be complied with.

4.The father shall forthwith make arrangements to engage with a suitably qualified professional to assist him to manage his emotions and mental health so as to best enable him to support the child.

5.The mother shall forthwith make arrangements to engage with a suitably qualified professional to assist her to manage her emotions and mental health so as to best enable her to support the child.

6.The parties…

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Vogel & Arcas [2024] FedCFamC2F 1681
Case
[2024] FedCFamC2F 1681
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a parenting dispute between Mr Vogel and Ms Arcas. The central issue was the allocation of parental responsibility for their child, X, born in 2019. The court faced challenges due to substantiated allegations of child abuse and neglect against Ms Arcas, including leaving the child alone for extended periods and a criminal conviction for child abuse. Despite these concerns, no party sought a time order for the child to reside with Ms Arcas. The court had to balance the risk of harm to the child against the potential long-term harm of severing the maternal relationship.

The court examined whether supervised contact could mitigate the risks while maintaining the child's relationship with the mother. It also had to determine the appropriate conditions for any contact, including supervised arrangements and therapy. Furthermore, the court considered the necessity for both parents to engage with mental health professionals and family therapy to support the child's well-being.

In its decision, the court ordered that X live with Mr Vogel but granted Ms Arcas supervised visitation, starting with limited, closely monitored contact and gradually increasing over time. Both parents were required to engage in individual and family therapy, and they were instructed to communicate through a designated app. The court also imposed specific conditions to ensure the child's safety and well-being, including prohibitions on physical discipline, leaving the child unsupervised, and speaking negatively about the other parent. The orders also addressed communication between parents, changeover arrangements, and the management of school holidays and special days.

The court's orders aimed to protect the child while fostering a relationship with both parents under controlled and supervised circumstances.

Orders

Orders of the court

DNC 178 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR VOGEL

Applicant

AND:

MS ARCAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIVERIS

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The child X, born in 2019 live with the father.

2. The father have sole parental responsibility for the child subject to the following:

(a) The father shall not change the child's name without first obtaining the written consent of the mother;

(b) The father shall not change where the child lives if such change will impact on the time the child spends with the mother; and

(c) The father shall inform the mother of any major decision made concerning the child's health, education, welfare or development, within seven (7) days of that decision being made.

3. The child be enrolled in counselling such as play therapy, and the father ensures that any recommendations of any professional counsellor be complied with.

4. The father shall forthwith make arrangements to engage with a suitably qualified professional to assist him to manage his emotions and mental health so as to best enable him to support the child.

5. The mother shall forthwith make arrangements to engage with a suitably qualified professional to assist her to manage her emotions and mental health so as to best enable her to support the child.

6. The parties do all things necessary and sign all documents required in order for the child and the mother to attend family therapy counselling with B Contact Centre, and for this purpose the father is obliged to ensure that the child attends when an appointment is made for his attendance.

7. The parties do all things necessary and sign all documents required to attend Intake at B Contact Centre within seven (7) days of these orders.

8. Following the completion of two (2) family therapy sessions with B Contact Centre pursuant to Order 6, the child spend supervised time with the mother as follows:

(a) For a period of six (6) months, for up to two (2) hours in each month, at times and days suitable to B Contact Centre; and

(b) For a further period of six (6) months thereafter, for up to two (2) hours each fortnight.

9. Following the completion of supervised time in Order 8, during school terms the child spend time with the mother as follows, with such time to commence in the first week of term in even numbered years and the second week of term in odd numbered years:

(a) For a further period of six (6) months thereafter, each alternate Saturday between 9 am and 3 pm;

(b) For a further period of three (3) months thereafter, from 9 am Saturday to 3 pm Sunday in each alternate week;

(c) For a further period of six (6) months thereafter, from the conclusion of school Friday (or 4.30 pm if not a school day) until the commencement of school the following Monday (or 9 am if not a school day) in each alternate week; and

(d) Thereafter, from the conclusion of school Thursday (or 4.30 pm if not a school day) until the commencement of school the following Monday (or 9 am if not a school day) in each alternate week.

Changeovers

10. For the purposes of Orders 8 herein changeovers shall occur at B Contact Centre.

11. For the purposes of Orders 9 herein changeovers shall occur at school where applicable, and otherwise at the play area in D Shopping Centre.

Communication

12. The parties shall communicate with each other in relation to matters concerning the child by a parenting App of their choice, and in default of an App being agreed within seven (7) days of these orders, the parties shall use the Application AppClose.

13. Each of the parties shall subscribe to the parenting App referred to above within fourteen (14) days of these orders and each shall remain subscribed to that App.

14. Each of the parents shall notify the other via the App about any serious illness or injury affecting the child, and provide details of the child's treating doctor and other health professionals.

15. The parents shall ensure that they keep each other updated about their phone number for the purpose of communication between the child and the parents.

School Holidays

16. Following the completion of the time in Order 9(c), the child spend time with the mother as follows:

(a) For the first half of all school holidays following first, second and third terms in even numbered years and the second half of all school holidays following first, second and third school terms in odd numbered years; and

(b) For the third and fifth weeks of the Christmas school holidays.; and

(c) For the first half of the Christmas school holidays in even numbered years and for the second half in odd numbered years.

Days of Significance

17. Following the completion of the time in Order 8, the child will spend days of special significance with each of his parents as follows, unless otherwise agreed in writing between the parents:

(a) From 1 pm to 5 pm on the child's birthday with the parent he is not otherwise living with on that day;

(b) With the father each year on the father’s birthday for no less than three (3) hours if a school day and for no less than 6 (six) hours if a non-school day;

(c) With the mother on the mother’s birthday from 9 am to 3 pm;

(d) With the mother on Mother's Day from 9 am to 3 pm; and

(e) With the father on Father's Day from 9 am to the commencement of school the following day.

18. Following the completion of the time in Order 9(b), the child will spend days of special significance with each of his parents as follows, unless otherwise agreed in writing between the parents:

(a) With the mother on Mother's Day from 9 am to the commencement of school the following day;

(b) With the mother from 9 am Christmas Eve until 2 pm Christmas Day in even numbered years and with the father in odd numbered years, except that his time shall commence at 2 pm Christmas Eve; and

(c) With the mother from 2pm Christmas Day until 5 pm Boxing Day in odd numbered years and with the father in even numbered years.

19. Following the completion of time in Order 9(c), unless otherwise agreed in writing between the parents, the child will spend time from the end of school Easter Thursday (or 4.30 pm if not a school day) until 12 noon Easter Sunday with the mother in even numbered years and with the father in odd numbered years, and from 12 noon Easter Sunday until the commencement of school the following Tuesday with the father in even numbered years and with the mother in odd numbered years.

Injunctions

20. That the parties are restrained and injunctions are granted restraining each from:

(a) Physically disciplining the child or permitting any other person to do so;

(b) Leaving the child in the care of any other person when the child is in their care pursuant to these orders NOTING this does not include outside school hours care providers or teachers or similar professionals or Ms C;

(c) Leaving the child unsupervised;

(d) Speaking to the child about these proceedings;

(e) Saying negative or derogatory things about the other parent to the child or within the hearing of the child; and

(f) Hindering the child's time with the other parent.

Other

21. This Order authorises each parent (at their own cost) to obtain information, reports, correspondences and all other similar material relating to the child from the child's treating health practitioners.

22. This Order authorises each parent (at their own cost) to obtain information, reports, school photo order forms and all other similar material relating to the child, from the child's school.

23. Each parent is at liberty to attend the child's school for functions, events and activities routinely attended by parents.

24. All outstanding applications be dismissed.

THE COURT NOTES THAT:

A. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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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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