Vossen & Vossen

Case [2024] FedCFamC1F 485

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vossen & Vossen [2024] FedCFamC1F 485

File number: SYC 4893 of 2024
Judgment of: CAMPTON J
Date of judgment: 19 July 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties were engaged in parenting proceedings in which judgment was delivered and final orders made in 2019 – Where each of the single forensic psychologist expert’s report and the mother’s trial affidavit that the father seeks leave to utilise were both adduced in evidence at the trial – Where the father seeks to use of these documents and the non-anonymised reasons for judgment from in his response to the Office of the Children’s Guardian, or any review process, or any appeal proceedings, relating to his holding of a Working With Children Check – Where the mother opposes the relief sought and seeks an injunction restraining the father from providing a copy of her trial affidavit to any third party – Where the father makes reckless submissions – Where one purpose of obtaining leave to use the documents sought is to reengineer the findings of fact contained in the 2019 judgment – Where the evidentiary foundations relied upon by the father to support leave are deficient – Where the father does not engage with any consideration as to the interests of the children – Application dismissed save as to leave granted for the father to use the anonymised published reasons for specific purposes – Orders made as to the filing of material for costs.
Legislation:

Family Law Act 1975 (Cth) Pt XIVB, ss 114N, 114S, 114Q

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8

Child Protection (Working with Children) Act 2012 (NSW) s 17

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04

Cases cited:

Chakora & Bhander [2023] FedCFamC1F 127

Commissioner of Taxation & Darling (2014) FLC 93-583

Earnshaw & Farella(No 2) [2022] FedCFamC1F 1020

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3

Littlefield and Pemble [2023] FedCFamC1A 198

Pace & Halkias [2021] FamCAFC 81

Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720

Vossen & Vossen [2019] FamCA 188

Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 18 July 2024
Place: Sydney
Solicitor for the Applicant: Barkus Doolan Winning
Counsel for the Respondent: Mr Longworth
Solicitor for the Respondent: Lander & Rogers

ORDERS

SYC 4893 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR VOSSEN

Applicant
AND:

MS VOSSEN

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:

1.The applicant has leave to provide the anonymised published judgment as Vossen…

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AGLC
Vossen & Vossen [2024] FedCFamC1F 485
Case
[2024] FedCFamC1F 485
Decision Date

CaseChat Overview and Summary

The case of Vossen & Vossen involved a dispute between the father and the mother regarding the use of certain documents in the context of proceedings related to their children. The father sought leave to use specific documents, including a single forensic psychologist's report and the mother's trial affidavit, for responding to a notice from the Office of the Children's Guardian regarding his Working With Children Check (WWCC). The mother opposed the father's application and sought an injunction to prevent the father from sharing her trial affidavit with third parties.

The legal issues before the court were whether the father could use the specified documents for the purposes outlined and if an injunction should be granted to prevent the mother's affidavit from being shared. The court had to consider the implications of the Harman Undertaking, the Family Law Act 1975, and the Family Law Rules 2021.

The court found that while the father's request to use the documents was motivated by the need to respond to allegations affecting his employment, his submissions were reckless. The court also determined that the father's purpose in obtaining leave was to reengineer the findings of fact from the 2019 judgment, which was not permissible. Additionally, the father failed to adequately consider the interests of the children. Consequently, the court dismissed the father's application, except for granting him leave to use the anonymised published reasons for judgment for specific purposes related to his response to the Office of the Children's Guardian. The court also refused the mother's request for an injunction and made orders regarding the filing of material for costs.

The court's decision highlights the importance of adhering to legal obligations and the need to balance the interests of the parties involved in family law proceedings. The father was permitted to use the anonymised reasons for judgment for specific purposes, but the court did not allow the use of the mother's trial affidavit or the forensic psychologist's report for reasons related to the father's employment.

Orders

Orders of the court

SYC 4893 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR VOSSEN

Applicant

AND:

MS VOSSEN

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:

1. The applicant has leave to provide the anonymised published judgment as Vossen & Vossen [2019] FamCA 188 identifying he as the respondent father in that proceeding to the Office of the Children’s Guardian (“the Office”) only for the purposes of:

(a) Responding to the notice he received issued 1 March 2024 by the Office; and

(b) Should his response by unsuccessful, for the internal review of the determination by the Office; and

(c) Should the internal review be unsuccessful, in the administrative appeal process from the internal review determination by the Office.

2. The Initiating Application filed 26 June 2024, save as to costs, is otherwise dismissed.

3. The Application in a Proceeding filed 26 June 2024 is dismissed.

4. The Response to an Initiating Application filed 16 July 2024 is dismissed, save as to costs.

5. If either party seeks an application for costs, they are to file any affidavit material in support and written submissions within 14 days of the date of these orders.

6. Should either party file material in accordance with Order 5, the other party is to file any affidavit material in response and written submissions within 14 days thereafter.

7. In the event neither party files material pursuant to Order 5, each party’s application for costs is dismissed.

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

For the reasons that follow, the father will be granted leave to provide the anonymised published judgment of Rees J dated 29 March 2019 identifying himself as the respondent father only for the purposes of his response to the Office to the notice he received issued 1 March 2024, for the internal review of the determination by the Office if his response is unsuccessful, and in the administrative appeal process, if made, from the internal review determination. The balance of father’s Initiating Application and Application in a Proceeding filed 26 June 2024, save as to costs, will be dismissed. The mandatory injunctive order sought by the mother in her Response filed 16 July 2024 will be refused. Directions will be made as to the filing of affidavit material and written submissions as to costs.BACKGROUND The parents commenced cohabitation in 2000, married in 2005 and separated on 2 December 2016. The children are now aged 17 and 13 years. As to the documents to which the leave is sought:(a)The Single Expert was appointed by an order made on 22 March 2018. The expert’s report was released to the parties by order made on 14 May 2018 recorded on the coversheet to the report, affixed and sealed:This report is distributed by the Registry Manager of the Court under Part 15.5 of the Family Law Rules. It must be treated as confidential and must not be shown to any person other than the parties, their lawyers and any other person the lawyer concludes necessarily needs to see the report for the purposes of the case. If you are representing yourself the report should only be read by you and you must not provide a copy to any other person unless you believe it is necessary for a witness you are calling to give evidence at the trial to read the report.Penalties may apply under Section 121 of the Act to the printing or publication of any material contained in this Report other than use in connection with proceedings in the Family Court.(b)The mother’s affidavit filed 24 January 2019 was admitted into evidence at the trial. The father gives evidence that from 2017 he held a WWCC. It was renewed in March 2023. On 1 March 2024 he was issued with a letter from the Office notifying him of an interim bar being imposed on his WWCC pursuant to s 17(2) of the Child Protection (Working with Children) Act 2012 (NSW). He says that he is required to respond to the allegations and make a submission to the Office should he seek to have his WWCC re-issued and not terminated permanently. There are no documents adduced in evidence recording the father’s interactions with the Office to date. His solicitor advises that an extension of time for him to make submissions has been achieved to either 22 July or 1 August 2024. The father records his occupation as a professional. He gives evidence that part of his employment involves attendance at schools. He adduces no further evidence as to any particulars of his employment except saying that it could be placed in jeopardy without the WWCC, causing him hardship.THE LAW

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The father’s affidavit says:·He has held a Working with Children Clearance since 2017. He achieved a renewal of it in March 2023.·On 1 March 2024 the Office issued an interim bar to him holding a WWCC (“the notice’).·The Department of Communities and Justice (“the DCJ”), based on an anonymous report, “incorrectly states the reasons for the decision of Rees J. The position they [the DCJ] detail is incomplete.” He seeks that the WWCC have the full and correct information. He believes that complainant to the DCJ is the mother.·Each of the specified documents for which leave is sought to are necessary to defend the allegations such that he will be prejudiced and the WWCC misled if leave is refused.·He needs a WWCC as “part of my employment as it involves attendance at schools. Without clearance my employment could be placed in jeopardy, and it will cause me hardship.”·He must respond to WWCC before 1 July 2024. The notice from the Office is exhibited to the father’s affidavit. It records:·The Office is aware that the father has new records which are subject to risk assessment. The attachment to the correspondence lists the relevant records pertaining to the proposed cancellation as: The father’s submission that the requested documents are to be considered by an officer in a government department, as opposed to being available to a member of the public, has merit attracting weight. The father said his evidence that the DCJ “incorrectly states the reasons for the decision of Rees J. The position they [the DCJ] detail is incomplete”. He repeated the same phrase in his submissions. He said that each is grounded from the following passages in the attachment to the 1 March 2024 notice from the Office of the reasons for proposing to cancel the WWCC clearance:1.…In 2017 the holder was a Person of Interest in substantiated significant risk of sexual abuse of his children.2.DCJ records indicate the Family Law Court ordered the holder should have professionally supervised contact with his children due to the concerns pertaining to sexual abuse. There was a provisional AVO against the holder protecting his children in [mid] 2017, which was dismissed in [early] 2018.3.The records from DCJ indicate further concerns have been raised in relation to the Holder in 2022-2023 in relation to his partner’s daughter (female, aged 12). The records show the holder declined to participate in an interview with DCJ at the time.4.The holder advises the 2020 investigation finding was completed without his participation and submits he engaged in the 2017 investigation. The holder advises the allegations including the concerns from 2022-2023 are due to a high conflict separation with his ex-wife.5.Due to the seriousness of the holder’s conduct involving sexual harm and risk of sexual harm involving children, it is proposed the holder poses a risk to the safety of children in child-related work.(Emphasis added) The “holder” is the father. The father’s submission at the hearing morphed into the conclusion that these passages equated to the DCJ reporting to the Office that a positive finding of sexual abuse occasioned by the father was made in the reasons of Rees J.

Ratio Decidendi

Legal Principle Established

The authorities at general law do not import words of limitation to the discretion to be exercised. That discretion is appropriately wide to fit the circumstances of each set of facts.CONSIDERATION The orders made by Rees J are not restricted by the implied undertaking or the Rules (Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 at [40]).The Father’s categorisation of the three documents for which leave is sought The father submits that the mother’s trial affidavit does not attract the implied undertaking, as it was received into evidence at trial. I do not accept that submission. Justice Schonell in Chakora said:11The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 6.04 of the Rules of Court is in the following terms:6.04 Use of documents (1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order: (a) must use the document for the purpose of the proceeding only; and (b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission. (2) However: (a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and (b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and (c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document. …20It is clear, from what their Honours identified in Hearne v Street, that an affidavit is covered by the implied undertaking. Parties are required in parenting matters before the Court to file applications and responses, are directed to file Case Outlines, and are compelled to file documents such as a Notice of Child Abuse, Family Violence or Risk. I am satisfied in those circumstances that such documents attract the implied undertaking. The use of the mother’s affidavit, by reason of the rule, takes it outside the exception in Hearne (Commissioner of Taxation & Darling (2014) FLC 93-583 at [112]). The father initially submitted that: …the Expert report falls within the exception under section 114N where it is to a person (or body) with a significant legitimate interest in the subject matter. This is clear from the reliance on the judgement as reported to WWCC by the DCJ as references in their show cause letter to the applicant. Section 114N is a simplified outline of Pt XIVB of the Act. That section itself is not a head of power to obtain leave of the character sought by the father. What was s 121 of the Act has been replaced by s 114Q. It provides:114Q Indictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings(1) A person commits an indictable offence if:(a)the person communicates to the public an account of proceedings under this Act; and(b) the account identifies:(i) a party to the proceedings; or(ii) a witness in the proceedings; or(iii)a person who is related to, or is associated with, a party to the proceedings; or(iv)a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.Penalty: Imprisonment for 1 year.(2)Subsection (1) does not apply if the communication is:(a) in accordance with a direction of a court; or(b) otherwise approved by a court.