VOSSEN & VOSSEN - [2018] FamCA 564

FAMILY COURT OF AUSTRALIA

VOSSEN & VOSSEN

[2018] FamCA 564

FAMILY LAW – CHILDREN – Application by wife seeking a review of registrar’s decision and a stay of orders allowing husband to spend unsupervised time with the children – Interim Orders that children spend supervised time with the father – Interim Orders that the father communicate with the children – Interim mutual injunctive orders

FAMILY LAW – PROPERTY – Application by wife seeking a partial property order – Interim property orders made whereby husband and wife each receive an equal sum by way of a partial property settlement

Family Law Act 1975 (Cth)

Treloar and Nepean (2009) FLC 93-417

APPLICANT:

Ms Vossen

RESPONDENT:

Mr Vossen

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

FILE NUMBER:

SYC

8184

2016

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

25 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies SC

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Diamond Conway

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

All previous parenting orders relating to the children X born … 2011 and Y born … 2011 (collectively ‘the children’) are discharged.

UNTIL FURTHER ORDER

Ms Vossen (‘the mother’) and Mr Vossen (‘the father’) have equal shared parental responsibility for the children.
The children live with the mother.
The children shall spend time with the father as follows:-
(a)each Tuesday and Thursday from the conclusion of school (or 3.00pm in the event that it is a non-school day) until 6.30pm;
(b)each Saturday from 11.00am until 6.00pm; and
For the purposes of order 4 the children’s time with the father shall be supervised by a supervisor nominated by the M Group or such other supervisor as is agreed in writing between the parties and the Independent Children’s Lawyer.
The father shall communicate with the children by telephone/Facetime on no fewer than three (3) nights per week between 6.30pm and 7.30pm while the children are with the mother.

6.In relation to the supervision provided by the M Group pursuant to these orders, the mother is restrained from giving any direction to the children that:-
(a) requests M Group to restrict the activities in which the father engages in while the children are with him; and
(b) requests M Group to restrict the father from coming into contact with any person.

Both parties be restrained from:-
(a)discussing these proceedings with the children or in the presence or hearing of the children;
(b)showing the children any documents relating to these proceedings including supervision reports or discussing the contents of those documents with the children; and
(c)denigrating the other parent to the children or in the presence of the children.
The father and mother are to facilitate the continued attendance by the children with Ms B in relation to the children’s therapy and both parties be restrained from giving any direction…

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

Case: [2018] FamCA 564
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the matter of Vossen & Vossen, Benjamin J of the Family Court of Australia considered applications by the wife concerning parenting arrangements for the parties' two children and a partial property settlement. The wife sought a review of a registrar's decision and a stay of orders that would have permitted unsupervised time between the father and the children. She also sought a partial property order.

The court was required to determine the appropriate interim parenting orders, specifically whether the children should spend supervised or unsupervised time with the father, and the terms of communication between the father and the children. Additionally, the court had to make interim property orders to facilitate a partial settlement between the parties.

His Honour discharged all previous parenting orders and made new interim orders. The parties were granted equal shared parental responsibility, with the children to live with the mother. The father was ordered to have time with the children on Tuesday and Thursday afternoons and Saturday afternoons, with this time to be supervised by an agreed supervisor. The father was also to communicate with the children by telephone or Facetime at least three nights per week. The mother was restrained from directing the supervisor to restrict the father's activities or contact with others. Both parties were restrained from discussing the proceedings with the children or denigrating the other parent. The court also made interim property orders, directing that $200,000 be paid to each party from a specified bank account within seven days, or proportionally if the account balance was less than $400,000. Costs for both the parenting and property applications were reserved.

Orders

Orders of the court

All previous parenting orders relating to the children X born … 2011 and Y born … 2011 (collectively ‘the children’) are discharged.

UNTIL FURTHER ORDER

Ms Vossen (‘the mother’) and Mr Vossen (‘the father’) have equal shared parental responsibility for the children.

The children live with the mother.

The children shall spend time with the father as follows:-

(a) each Tuesday and Thursday from the conclusion of school (or 3.00pm in the event that it is a non-school day) until 6.30pm;

(b) each Saturday from 11.00am until 6.00pm; and

For the purposes of order 4 the children’s time with the father shall be supervised by a supervisor nominated by the M Group or such other supervisor as is agreed in writing between the parties and the Independent Children’s Lawyer.

The father shall communicate with the children by telephone/Facetime on no fewer than three (3) nights per week between 6.30pm and 7.30pm while the children are with the mother.

6. In relation to the supervision provided by the M Group pursuant to these orders, the mother is restrained from giving any direction to the children that:-

(a) requests M Group to restrict the activities in which the father engages in while the children are with him; and

(b) requests M Group to restrict the father from coming into contact with any person.

Both parties be restrained from:-

(a) discussing these proceedings with the children or in the presence or hearing of the children;

(b) showing the children any documents relating to these proceedings including supervision reports or discussing the contents of those documents with the children; and

The father and mother are to facilitate the continued attendance by the children with Ms B in relation to the children’s therapy and both parties be restrained from giving any direction to Ms B restricting her ability to communicate with each party.

Each party be given leave to provide a copy of the single expert report prepared by Ms C dated 18 May 2018 to that parties’ treating general practitioner, psychologist or therapist provided notice of the provision of that report to such treating medical provider is given to the other party and the Independent Children’s Lawyer within seven (7) days of its provision.

10.

Pursuant to s 65DA(2) and s 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 these particulars are included in these orders.

11.

Costs of all parties for this interim application are reserved.

12.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

INTERIM PROPERTY ORDERS

By way of interim property orders; within seven (7) days of the date of these orders the wife and husband will each sign all documents necessary to pay from the ANZ Bank Equity Manager Account BSB … Account No. …18 the sum of two hundred thousand dollars ($200,000) to the wife and the sum of two hundred thousand dollars ($200,000) to the husband. If the amount available in that account is less than $400,000 then such amount shall be paid equally between the wife and husband.

The costs of both the husband and wife to this application in a case are reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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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