FAMILY COURT OF AUSTRALIA
| VOKIC & VLASS | [2012] FamCA 56 |
| FAMILY LAW - CHILDREN – With whom the children should live – with whom the children should spend time with – best interests of the children – where both children love each of the parents and wish to spend time with them both – where the wife has had to undertake urinalysis and hair follicle tests for drug use – where the wife has received positive drug test results – whether there is an apprehension of risk to the children when in the wife’s care due to her drug use FAMILY LAW - PROPERTY – Alteration of property interests – where the wife received a $3.5 million inheritance from her mother FAMILY LAW - COURTS AND JUDGES – Application for Disqualification for apprehended bias – Application dismissed |
| Family Law Act 1975 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re Watson; Ex parte Armstrong(1976) FLC 90-059 Livesey v NSW Bar Association (1983)151 CLR 288 Re JRL; Ex parte CJL (1986) 161 CLR 342 |
| APPLICANT: | Mr Vokic |
| RESPONDENT: | Ms Vlass |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 790 | of | 2010 |
| DATE DELIVERED: | 15 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 7, 8, 9, 18 and 30 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | Moira Ryan Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The parties have equal shared parental responsibility for Y and M born … May 2003 (“the children”).
The children live with the husband.
The children spend time with the wife as set out in Orders 4 – 7 subject to:
(a)the wife’s compliance with orders 8 and 9 (absent a reasonable excuse for failure to attend for testing as agreed to by the husband) and
(b) all drug test results being negative for illicit drugs.
From the date of these Orders until the start of School Term 2, 2012 the children spend time with the wife:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b) each Sunday from 10.00 am until 5.00 pm
(c) on 2 May 2012 from 3.00 pm until 6.00 pm
(d)such overnight times with the children as agreed between the parties, provided such overnight time is supervised by a supervisor agreed between the parties.
From the start of School Term 2, 2012 until the start of School Term 3, 2012 the children spend time with the wife:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)
commencing the first week of School Term 2, 2012 each alternate weekend on Saturday from the conclusion of dance classes (or
10.00 am if dance classes are not on) until 5.00 pm and on Sunday from
10.00 am until 5.00 pm, save for the…
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- Vokic & Vlass [2012] FamCA 56
- Case
- [2012] FamCA 56
- Decision Date
CaseChat Overview and Summary
The court was required to determine with whom the children should live and spend time, with the overarching consideration being the children's best interests. This involved assessing the risk posed by the wife's drug use to the children's safety and well-being when in her care. Additionally, the court addressed the division of the parties' property, including a significant inheritance received by the wife.
Justice Fowler applied the principles of the *Family Law Act 1975* (Cth) to determine the children's best interests. The court noted that both children loved each parent and wished to spend time with them. However, due to the wife's positive drug test results, the court imposed strict conditions on her time with the children, including mandatory supervised urinalysis and hair follicle testing for a significant period. The court's reasoning reflected a concern for the children's safety, necessitating a gradual reintroduction of unsupervised time with the wife contingent upon consistently negative drug test results and engagement in counselling.
The court ordered that the parties have equal shared parental responsibility for the children, but that the children live with the husband. The wife's time with the children was to be progressively increased over several school terms, subject to strict compliance with drug testing protocols and negative results. Further orders addressed property division, including the transfer of interests in real estate, a monetary payment from the wife to the husband, and the splitting of superannuation interests. The wife was also ordered to engage in counselling and a parenting education course.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for Y and M born … May 2003 (“the children”).
2.
The children live with the husband.
3.
The children spend time with the wife as set out in Orders 4 – 7 subject to:
(a) the wife’s compliance with orders 8 and 9 (absent a reasonable excuse for failure to attend for testing as agreed to by the husband) and
(b) all drug test results being negative for illicit drugs.
4.
From the date of these Orders until the start of School Term 2, 2012 the children spend time with the wife:
(a) each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b) each Sunday from 10.00 am until 5.00 pm
(c) on 2 May 2012 from 3.00 pm until 6.00 pm
(d) such overnight times with the children as agreed between the parties, provided such overnight time is supervised by a supervisor agreed between the parties.
5.
From the start of School Term 2, 2012 until the start of School Term 3, 2012 the children spend time with the wife:
(a) each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)
commencing the first week of School Term 2, 2012 each alternate weekend on Saturday from the conclusion of dance classes (or
10.00 am if dance classes are not on) until 5.00 pm and on Sunday from
10.00 am until 5.00 pm, save for the Father’s Day weekend when the children will be returned to the husband at 10.00 am on Sunday
(c) such further time (including overnight time) as agreed between the parties.
6.
From the start of School Term 3, 2012 until the start of School Term 4, 2012 the children spend time with the wife:
(a) each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)
commencing the first week of School Term 3, 2012 each alternate weekend from the conclusion of dance classes on Saturday (or
10.00 am if dance classes are not on) until 5.00 pm Sunday
(c) on Christmas Day 2012 from 10.00 am until 2.00 pm
(d) such further time as agreed between the parties.
7.
From the start of School Term 4, 2012:
(a) each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b) commencing the first week of School Term 4, 2012 each alternate weekend from the conclusion of dance classes or other extracurricular class on Saturday (or 10.00 am if there is no morning class) until 9.00 am Monday, save for the Father’s Day weekend when the children will be returned to the husband at 10.00 am Sunday
(c) should Christmas Day fall within a time when the children are spending time with their mother, the children shall spend time with their father from 2.00 pm to 7.00 pm
(d)
should Christmas Day fall within a time when the children live with their father, the children shall spend time with their mother from
2.00 pm to 7.00 pm
(e)
should 2 May fall within a time when the children are spending time with their mother, the children shall spend time with their father from
2.00 pm to 7.00 pm
(f) should 2 May fall within a time when the children are living with their father, as agreed between the parties but failing agreement with the wife from 2.00 pm to 7.00 pm
(g) on Mother’s Day from 10.00 am to 5.00 pm
(h) such further time as agreed between the parties.
8.
The wife undertake supervised urinalysis as follows:
(a) for a period of 12 months from the date of these Orders, every Monday (Tuesday if Monday is a public holiday) with the results of the test to be provided to the husband within 7 days, and providing that if the results are not provided to the husband within 7 days, time with the children will be suspended until the results are produced
(b) for a period of 12 months from the date of these orders, random urinalysis within 48 hours of receiving a request via text message from the husband, with such requests to be made no more than once a month
(c)
following the expiration of the 12 month period above, for a period of
2 years, random urinalysis within 48 hours of receiving a request via text message from the husband, with such requests to be made no more than once every three months.
9.
The wife undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the husband within five weeks of providing the hair sample for the test:
(a) between 1 and 8 February 2012, with a 4 cm segment of hair to be tested
(b) between 1 and 8 August 2012, with a 6 cm segment of hair to be tested
(c) between 1 and 8 February 2013, with a 6 cm segment of hair to be tested
(d) between 1 and 8 August 2013, with a 6 cm segment of hair to be tested.
10.
In the event the wife fails to comply with Orders 8 and 9 (absent a reasonable excuse for failure to attend as agreed to by the husband) or returns a result that is positive for illicit drugs for any of the drug tests taken pursuant to these Orders, the wife will immediately cease spending time with the children pursuant to the above orders 4 – 7 and will spend time with the children as follows:
(a) for two hours every fortnight under supervision at Contact Centre 1 (or such further time as the centre may propose) and to facilitate such time:
(i) each party must contact Contact Centre 1 within seven (7) days to arrange an appointment for assessment for suitability and attend the assessment
(ii) each party must comply with any appointment made by Contact Centre 1, comply with all reasonable rules of Contact Centre 1 and comply with all reasonable requests or directions of the staff of Contact Centre 1
(iii) the wife shall pay the fees nominated by Contact Centre 1 for the provision of its service
(b) other times as agreed between the parties, under the supervision of a person agreed between the parties.
11.
Within 21 days of the date of these Orders, the wife engage in counselling with a drug and alcohol counsellor and thereafter, attend upon that counsellor at a frequency recommended by the counsellor until such time as the counsellor recommends in writing that the counselling cease.
12.
The wife provide her drug and alcohol counsellor with:
(a) a copy of these orders
(b) a copy of Professor H’s Single Expert Reports of September 2010 and November 2011
(c) authority to confirm with the husband that counselling has begun and is continuing at the frequency recommended by the counsellor.
13.
In the event of further proceedings pursuant to the Family Law Act, the husband may not issue a subpoena for the production of counselling records prepared in the course of Order 11 counselling, without specific leave of the Court.
14.
Within 6 months of the date of these Orders the wife complete a parenting education course as recommended by the Family Consultant Ms R.
15.
Within 3 months of the date of these Orders each parent engage in individual counselling or family therapy (such therapy not to involve the children unless agreed between the parties and the therapist or counsellor) in order to obtain advice and support in assisting the children to cope with the reduction in the time they spend with their mother.
16.
The wife is hereby restrained from consuming alcohol 24 hours prior to the children coming into her care and at all times the children are in her care.
17.
The wife and husband are hereby restrained from consuming illicit substances at all times.
18.
The wife provide any service that she engages for the purpose of urinalysis and hair follicle testing with authority to disclose to the husband the dates on which she has undertaken testing and the results of any tests she has undertaken, and that the husband be at liberty to contact the service directly for this purpose.
19.
For the purpose of the time the wife spends with the children pursuant to these Orders, the wife is to collect the children from their dance/extracurricular class, school or the husband’s residence (as the case may be) at the beginning of her time with the children and the husband is to collect the children from the wife’s residence at the conclusion of her time with the children.
20.
The husband is permitted to suspend the time the wife spends with the children pursuant to any of the above orders for a period of two weeks, twice a year, for the purpose of taking the children on a holiday outside of the Sydney metropolitan area, provided he first gives the wife 1 month’s notice.
21.
Within 14 days of these Orders and within 14 days of the children’s subsequent enrolment at any school, each party shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each party copies of all of each child’s school reports and any written material pertaining to each child’s academic and extracurricular activities.
22.
The parties are each entitled to attend all school events or extracurricular activities (including dance and swimming classes) involving the children.
23.
The parties shall notify each other of any change to:
(a)
their mobile telephone number or landline telephone number within
48 hours of such change occurring
(b) their residential address, seven days prior to their change of address.
24.
The wife and husband are to notify the other immediately of any serious illness, injury or medical emergency in respect of the children.
25.
Within seven (7) days of the making of these Orders the children are to be presented to the Child Dispute resolution section of the Court so that the nature and effect of the decision and the Orders can be explained to them by a Family Consultant.
Property Orders
26.
Within fourteen (14) days of the date of these Orders, the wife do all acts and execute all documents to transfer to the husband all of her right, title and interest in the property known as Property 2, D Street, Sydney Suburb H NSW … being the land in Certificate of Title folio identifier … .
27.
Within fourteen (14) days of the date of these Orders, the husband do all acts and execute all documents to transfer to the wife all of his right, title and interest in the property known as … E Street, Sydney Suburb B NSW … being the land in Certificate of Title folio identifier … (“the B property”).
28.
The wife be declared to have the sole right, title and interest in the contents of the house located at the B property.
29.
The wife is to pay to the husband $172,615 within six (6) months, and that the obligation of the wife to pay the husband is to be charged by her against her right, title and interest in the B property.
30.
Whenever a splittable payment is payable in respect of the superannuation interest of the wife in the V Superannuation Fund:
(a) the husband is entitled to be paid 100% of that splittable payment and
(b) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
The above Order binds the V Superannuation Fund.
31.
The husband and the wife in their capacity as trustees of the V Superannuation Fund shall do all acts and things and sign all documents necessary to:
(a) calculate in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 the entitlement created for the husband and
(b) pay the entitlement whenever the trustees make a splittable payment out of the wife’s interest in the V Superannuation Fund.
32.
Contemporaneously with the super splitting payments being effected in accordance with these Orders the wife shall do all acts and things and sign all documents necessary to resign as a member of the V Superannuation Fund and to resign as a trustee of the V Superannuation Fund.
33.
Forthwith the husband shall indemnify the wife and keep her indemnified from and against all claims, actions, suits or demands arising out of or in connection with her having been at any time a member of the V Superannuation Fund and or a trustee of the V Superannuation Fund.
34.
Other than as provided for above the husband and wife shall be solely entitled to the exclusion of the other party all property, chattels and superannuation of whatsoever nature and kind in possession, ownership or control of each party as at the date of these Orders.
35.
Other than as specifically provided for above:
(a) the husband is to indemnify and keep indemnified the wife in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband
(b) the wife is to indemnify and keep indemnified the husband in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
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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