Vossen and Vossen (No 2)

[2019] FamCA 426

FAMILY COURT OF AUSTRALIA

VOSSEN & VOSSEN (NO. 2) [2019] FamCA 426

FAMILY LAW – PRACTICE AND PROCEDURE – Ancillary issues – Where judgment was delivered in March 2019 – Where no submissions were made to ancillary issues at trial – Where parties were invited to make written submissions and the matters determined in Chambers – Orders made as to ancillary issues.  

APPLICANT: Ms Vossen

RESPONDENT: Mr Vossen

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 8184 of 2016

DATE DELIVERED: 4 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 4 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies of Senior Counsel

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Richardson of Senior Counsel

SOLICITOR FOR THE RESPONDENT: Diamond Conway Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED BY CONSENT

School holiday time

1. The Children spend time with the Father during school holidays as follows:

   1.1.During the short school holidays and unless otherwise agreed in writing between the parties:

   1.1.1.Each Monday, Friday and Saturday from 9am until 6pm in Week 1 in 2019 and each alternate year thereafter; and

   1.1.2.Each Monday, Friday and Saturday from 9am until 6pm in Week 2 in 2020 and each alternate year thereafter;

   1.2.During the Christmas school holiday period (excluding Christmas Day) and unless otherwise agreed in writing between the parties:

   1.2.1.Each Monday, Friday and Saturday from 9am until 6pm in alternating weeks. For the purpose of these Orders, the first week of the Christmas school holidays will commence on the day immediately following the last day of school term attended by the twins or such other secondary school the twins may attend.

   1.3.At such other times as agreed in writing between the parties.

Time on special occasions

1. The Children spend time with the Father on special occasions as follows:

2.1.From 9.00am to 6.00pm on Father’s Day in substitution for the Saturday time on the Father's Day weekend, unless the Father elects for the Children to spend time with him on both days of the Father's Day weekend and he provides the Mother with 7 days' written notice of his intention to exercise such time;

2.2.From 9.00am to 6.00pm on the Father’s birthday when it falls on a weekend or during school holidays;

2.3.From the conclusion of school to 6.00pm on the Father’s birthday when it falls on a school day when the Father will collect the Children from school at the commencement of the time;

2.4.On each of the Children's birthdays:

2.4.1.From after school until 6.00pm in the event the birthday falls on a school day when the Father will collect the Children from school at the commencement of the time;  

2.4.2.From 9am to 1.00pm on non-school days during even numbered years;

2.4.3.From 1pm to 6pm on non-school days during odd numbered years.

2.5.On Christmas Day from midday to 5.00pm in 2019 and each alternate year thereafter; and

2.6.On Christmas Day from 9.00am to 1.00pm in 2020 and each alternate year thereafter.

2.7.At other times as agreed between the parties in writing.

1. Notwithstanding any other Order, the Children's time with the Father be suspended on the following special occasions:

   3.1.On each of the Children's birthdays:

   3.1.1.From 1.00pm to 6.00pm on non-school days during even numbered years; and

   3.1.2.From 9.00am to 1.00pm on non-school days during odd numbered years.

   3.2.On Christmas Day from 9.00am to midday in 2019 and each alternate year thereafter; and

   3.3.On Christmas Day from 1.00pm to 6.00pm in 2020 and each alternate year thereafter.

2. The Children's time with the Father during school holiday periods and on special occasions be supervised by an accredited independent agency, including but not limited to M Group, MM Group and NN Group, such agency to be chosen by the Father who will pay the costs of supervision.

Changeovers

1. For the purposes of changeover, notwithstanding any other Order except Order 3(a) of the Orders made on 29 March 2019, and unless otherwise agreed between the parties, the Father shall collect the Children from the Mother's residence at the commencement of the time and the Mother shall collect the Children from the Father's residence at the conclusion of the time.

Telephone and Electronic Communication

1. That the Children may communicate with each parent at any reasonable time and the other party shall facilitate and support such communication by telephone, in writing or by other electronic means including but not limited to emails and FaceTime.

2. In addition to Order 6 herein the Mother do all that is necessary to facilitate reasonable communication between the Father and the Children that he may initiate between the hours of 5.30pm and 7.30pm three nights per week.

International Travel

1. Pursuant to s.65Y of the Family Law Act 1975 (Cth) the Mother shall be permitted to remove the Children from the Commonwealth of Australia during periods of time that the Children are in her care for the purpose of a holiday provided that:

   8.1.The Mother shall give the Father no less than 56 days’ notice for proposed travel to countries other than Country TT and the Country ZZ and no less than 28 days’ notice in relation to proposed travel to Country TT or the Country ZZ unless otherwise agreed between the parties, including the dates of the intended travel, and shall provide to the Father as soon as practicable thereafter, and before the travel commences:

   8.1.1.The itinerary for the intended travel;

   8.1.2.Copy of return airline tickets;

   8.1.3.Details of and contact details for accommodation in which the children will be staying whilst overseas.

   8.2.  The Father provides a written consent to the Mother or alternatively does not respond to the Mother’s written notice within 7 days of the Father receiving same; and

   8.3.  Such travel does not occur on special occasions, such as Father’s Day, Christmas Day, the Children’s birthdays and the Father’s birthday.

2. If the Mother gives notice in accordance with Order 8 above, the Father shall not unreasonably withhold his consent to the children or any of them traveling with the Mother in accordance with the written notice.

3. That each party shall do all acts and things and sign all documents necessary to ensure that the children have current valid Australian and British passports in place at all times and share equally the costs associated with any renewal.

General Orders

1. That each party shall keep the other advised at all times of their residential address, landline telephone number, mobile telephone number (capable of accepting SMS), and emergency contact number, and provide the other party with any new information within 24 hours of any change of residential address, landline telephone number and/or emergency contact number.

2. That each party shall promptly advise the other by text message or telephone call of any medical emergency and/or significant illness suffered by the Children whilst in the care of that party, and the party who has care of the Children shall provide the other with details of the Hospital and/ or medical practitioner attended upon, the reason for the visit and details of any treatment or medication prescribed to the Children.

3. That the parties shall notify each other of all school activities, parent/teacher meetings, presentations and performances to which parents are invited prior to such events occurring and each parent shall be at liberty to attend those events and each party shall do all things necessary so as to ensure that the Children's school reports and newsletters are provided to each of the parents.

4. The Father's attendance at reading groups conducted within the classroom of the younger children, parent teacher interviews, presentations, performances and school events to which parents are invited (excluding school sporting events that are not on school grounds and school excursions) and assemblies need not be formally supervised provided that:

   14.1.        The Children are in the presence of a teacher who is supervising them;

   14.2.        The Father is not at any time alone with the Children;

   14.3.        The Father does not offer to take the Children away from those events;

14.4.The Father is not involved in the toileting of the Children and does not accompany the Children into the toilet area.

1. The parties communicate issues of an urgent nature by mobile telephone calls or text messages and communications of a non-urgent nature shall be by email and in respect of communication the parties will:

   15.1.        Respond promptly to any communication from the other party; and

   15.2.Remain respectful and civil in relation to their communications with each other.

2. Each party be restrained from:

   16.1.Denigrating the other parent or any member of the other parent's family to, or in the presence or hearing of, the Children and each party is to use their best endeavours to ensure that no other person denigrates the other parent or members of their family to the Children or in the presence or hearing of the Children; and

   16.2.Involving the Children in the parenting arrangements.

3. The Father continue to attend upon his treating psychiatrist, at such frequency as recommended by the treating psychiatrist, and comply with all treatment recommendations, including medication.

4. Each party facilitate the access of the other parent to the school portal of any school the children attend from time to time.

5. That the Mother and Father shall:

   19.1.Provide each other and keep each other advised of the names and addresses of the Children's treating doctors;

   19.2.Inform each other in writing as soon as practicable of any specialist medical appointments, including appointments with any dentists, optometrists, psychologists, psychiatrists, counsellors or therapists ("specialist medical consultant") in relation to any of the Children; and

   19.3.Ensure that the other parent is provided with a copy of any report by any such Specialist Medical Consultant in relation to the children within fourteen (14) days of receipt of the report.

6. That both the Mother and Father shall be entitled to:

   20.1.Attend any appointments with treating specialist medical practitioners relating to any of the Children subject to Order 20.3 herein;

   20.2.Discuss the children's conditions with such treating doctor or Specialist Medical Consultant;

   20.3.In relation to therapy sessions that the children engage in with a psychologist, psychiatrist, counsellor or therapist ("Children's therapist"), both parties shall not participate in such a session involving any of the Children without the consent of the Children's therapist.

IT IS FURTHER ORDERED

1. That the children’s time with the father during school holidays may be suspended by the mother for fourteen (14) consecutive days on the giving of thirty (30) days’ notice to the father on one occasion in each year.

2. That each party is restrained from enrolling the children in any extra-curricular activity which takes place during the time that the children spend with the other parent unless both parents consent to the enrolment.

3. That both parents have liberty to provide to any supervising agency engaged pursuant to these orders a copy of the reasons for judgment and orders made in the proceedings.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vossen & Vossen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8184 of 2016

Ms Vossen

Applicant

And

Mr Vossen

Respondent

REASONS FOR JUDGMENT

1. Substantive proceedings relating to the parenting of the children Z born in 2007, and twins, X and Y both born in 2011, were heard and determined by judgment delivered on 29 March 2019.

2. At the conclusion of the reasons, I stated:

   Each of the parents sought a raft of Orders directed to ancillary issues. The [Independent Children’s Lawyer (“ICL”)] also sought ancillary Orders.

   No attempt was made by the legal representatives to compare the Orders sought so as to ascertain where they might agree, where they disagreed, and what the points of difference were.

   No submissions were directed to the ancillary Orders with the exception of the issue of the father’s psychiatrist notifying the mother if the father were not compliant with his treatment regime. This issue will be addressed separately.

   In the event that the parties wish me to resolve the issues which are found in Orders 5.2-7 and 11-25 of the mother’s application; 4 to 18 of the father’s application and 6 to 23 of the ICL’s Minute of Orders then they shall:

   ·    Prepare a joint schedule setting out the issues to be determined and the areas of agreement and disagreement.

   ·    Each prepare a document setting out where the evidence upon which each relies in relation to each issue is to be found.

   ·    Make written submissions in relation to each issue.

   Those issues will be determined in chambers.

3. Those directions have now been complied with by the parents.

4. The parents have agreed in relation to most of the issues outstanding. Those orders will be made by consent.

5. The issues in relation to which they have not agreed will be determined here with reference to their respective written submissions. The ICL did not wish to participate in any of the disputed issues.

SCHOOL HOLIDAY TIME FOR Z

1. It is agreed that the children should spend time with the father during school holidays.

2. The area of dispute is the father’s application for orders in relation to Z spending time with him during those periods when her school is on holidays but the twins are still at school.

3. The father proposes that, in those approximately three weeks each year, Z spend time with him on Tuesdays and Thursdays unsupervised, or alternately, supervised by Ms HH or the children’s aunts, Ms QQ Vossen, Ms RR Vossen and Ms SS Vossen.

4. The mother opposes that application.

5. I have already, in the substantive reasons, dealt with the need for the children’s time with the father to be supervised.

6. Ms HH swore an affidavit in the substantive proceedings. She was not required for cross-examination. Her affidavit deals with her relationship with the father and his relationship with her two children. That relationship commenced after the parents separated. Ms HH does not suggest that she has ever met Z. The affidavit does not canvass her willingness to act as a supervisor, nor her suitability to do so. There is no evidence that Ms HH has read the reasons for judgment or is aware of the findings made in relation to the need for supervision.

7. None of the children’s aunts swore affidavits. There is no evidence that they have read the reasons for judgment or are aware of the findings made in relation to the need for supervision. There is no evidence of their understanding of the need for supervision or of the role and obligations imposed upon a supervisor.

8. The order will not be made.

SUSPENSION OF HOLIDAY TIME

1. The parents agree that the holiday time that the children spend with the father should be suspended for one 14 day block each year to allow the mother to have a holiday with the children.

2. The mother proposes that the father should be given 30 days’ notice of the period when she wishes to have the holiday.

3. The father asks for 56 days’ notice.

4. The orders in relation to school holidays, upon which the parents have agreed, provide that the children will spend day only, supervised time with the father during holidays. He will not, therefore, be required to make arrangements to take them away for periods where he will need to make bookings for accommodation or to arrange air travel.

5. In those circumstances, 30 days’ notice is sufficient.

FATHER’S PARTICIPATION IN “TAKING RESPONSIBILITY”

1. The mother seeks an order that the father participate in the course. He does not wish to do so.

2. There is no evidence in relation to the content of the course or its suitability having regard to the father’s circumstances and the facts as they have been found.

3. No questions were put to the single expert about the suitability of the course in the present circumstances.

4. There is no evidence upon which this order could be made.

FATHER’S ATTENDANCE UPON MS PP

1. The father’s position is that he has voluntarily engaged with Ms PP and does not wish to be compelled to do so.

2. The mother submits that the father should be compelled to engage with Ms PP.

3. There is no evidence from Ms PP about whether or not she would be prepared to continue her engagement with the father if it were on the basis of compulsion by Court order, or whether it would be useful to continue the engagement on that basis.

4. Absent clear evidence from Ms PP that the father’s attendance under compulsion would be productive, I am not prepared to make such an order.

DIRECTIONS TO SUPERVISORS

1. The father seeks an order restraining the mother from giving directions to the supervisors. This was not an order sought in the substantive proceedings and no cross-examination about this issue was directed to the mother.

2. The existing orders give no authority to either party to direct the supervisors. The circumstances in which the children’s time with their father occurs is a matter for the supervising agency.

3. However, I accept the submission of the mother that the supervising agency or agencies should be provided with a copy of the reasons for judgment and the orders.

EXTRA CURRICULAR ACTIVITIES

1. The father seeks an order restraining the mother from organising extra-curricular activities for the children during the times they spend with him.

2. The mother submits that it is important for the children to engage in regular activities such as sports.

3. Whilst I accept that participation in organised sport can be of benefit to the children, it is also important that both parents agree on what activities should be undertaken, particularly when both will be involved in those activities.

4. The orders will provide that the children can be enrolled in extra-curricular activities as agreed by both parents.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 July 2019.

Associate: 

Date:  4 July 2019