VOSSEN & VOSSEN - [2019] FamCA 188

FAMILY COURT OF AUSTRALIA

VOSSEN & VOSSEN

[2019] FamCA 188

FAMILY LAW – CHILDREN – Best interests of the child – Where there are allegations of inappropriate behaviour between the children and the father – Where the children have, on several occasions, touched and fondled the father’s genitals – Where the father did not stop or prevent this from happening – Where the father’s actions pose a risk of harm to the children – Where the father recognises that this behaviour was “inappropriate” – Where the behaviour ceased only from intervention of the mother – Where the risk of harm may not be high, but is not a risk that is acceptable – Where that risk can be ameliorated by supervision – Order made for the father to have supervised time with the children – Where the father should be permitted to bring an application to vary those orders when the youngest children are 10 – Where the parents are capable of making major long term decisions for the children – Order made for equal shared parental responsibility.

FAMILY LAW – CHILD SUPPORT – where the mother sought a child support departure order – Where the Child Support Registrar had not been served pursuant to the Family Law Rules – Where the application could not proceed absent notification to the Registrar.

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 69ZT
Family Law Rules r 4.23(1)(c)

Lesley & Lesley [2015] FamCA 894
Pearce v Button (1986) 65 ALR 83

APPLICANT:

Ms Vossen

RESPONDENT:

Mr Vossen

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

8184

2016

DATE DELIVERED:

29 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

28 February and 1, 4, 5, 6, 7, 8 March 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

That the parents have equal shared parental responsibility for the children Z born … 2007, X and Y both born … 2011.
That the children live with the mother when not spending time with the father in accordance with these Orders.
That, unless otherwise agreed, the children spend time with the father during school terms as follows:
(a)Each Tuesday and Thursday from after school until 7pm. The father shall collect the children from school and the mother shall collect the children from the father’s residence at 7pm.
(b)Each Saturday from 9am until 6pm. The father shall collect the children in the morning from the mother’s residence and the mother shall collect the children in the afternoon from the father’s residence.
That the time the children spend with the father pursuant to Order (3) shall be supervised by an accredited independent…

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 VOSSEN & VOSSEN

Details

AGLC: VOSSEN & VOSSEN [2019] FamCA 188
Case: [2019] FamCA 188
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of Vossen & Vossen, Rees J of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for the children Z, X, and Y. The dispute centred on the arrangements for the children, including their time with each parent, counselling, and costs.

The court was required to determine the nature of parental responsibility, the specific living arrangements for the children, the extent and nature of the father's time with the children, and the necessity for supervised contact. Furthermore, the court had to address the involvement of counsellors and the sharing of costs for counselling and legal representation, including the costs of the Independent Children's Lawyer. The court also considered the process for determining any outstanding ancillary issues.

Rees J ordered that the parents have equal shared parental responsibility. The children were to live with the mother and spend time with the father on specified weekdays and Saturdays. Crucially, all time the children spent with the father was to be supervised by an accredited independent agency, chosen and paid for by the father. The court also ordered that the children and both parents continue in counselling with a specified counsellor, with the frequency and configuration of sessions to be determined by the counsellor, and the costs to be borne equally by the parents. The court also made orders regarding the payment of costs for the Independent Children's Lawyer and outlined a procedure for the determination of any future ancillary issues.

Orders

Orders of the court

IT IS ORDERED

That the parents have equal shared parental responsibility for the children Z born … 2007, X and Y both born … 2011.

That the children live with the mother when not spending time with the father in accordance with these Orders.

That, unless otherwise agreed, the children spend time with the father during school terms as follows:

(a) Each Tuesday and Thursday from after school until 7pm. The father shall collect the children from school and the mother shall collect the children from the father’s residence at 7pm.

(b) Each Saturday from 9am until 6pm. The father shall collect the children in the morning from the mother’s residence and the mother shall collect the children in the afternoon from the father’s residence.

That the time the children spend with the father pursuant to Order (3) shall 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.

That the children continue in counselling with Ms B with such frequency as she may direct.

That both parents engage in that counselling, at the direction and discretion of Ms B.

That the frequency and configuration of those counselling sessions should be a matter for Ms B.

That the parents equally bear the cost of the counselling.

That the parties and the ICL shall ensure that Ms B is provided with a copy of Ms C’s report and a copy of these reasons.

10.

That both parents are at liberty to provide to Dr E and to any counsellor that she or he engages in relation to issues referable to the children and issues raised in these proceedings, a copy of the report of Ms C and a copy of these reasons.

11.

That each of the husband and the wife pay to the Legal Aid Commission of NSW the sum of $10,232.51 on account of the costs of the Independent Children’s Lawyer (“ICL”), such sum to be paid from the funds received by each of them from the proceeds of sale of the former matrimonial home.

12.

That in the event that either party requires the Court to determine the ancillary issues set out at Orders 5.2 to 5.7 and Orders 11 to 25 of the mother’s application; Orders 4 to 18 of the father’s application and at Orders 6 to 23 of the ICL’s Minute of Orders, the parties shall, within 28 days:

(a) Prepare a joint schedule setting out the issues to be determined and, in relation to each issue, the areas of agreement and disagreement.

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

13.

That the matters referred to in Order (12) will be determined in chambers.

14.

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.

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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