Vukoja and Vukoja (No 2) - [2020] FamCA 629

FAMILY COURT OF AUSTRALIA

VUKOJA & VUKOJA (NO. 2)

[2020] FamCA 629

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where the father’s drug use is of serious concern – Where orders made providing the mother with sole parental responsibility – Where orders made that the children live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 69ZN
Family Law Rules 2004 (Cth) rr 1.12, 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Vukoja & Vokoja [2020] FamCA 614

APPLICANT:

Ms Vukoja

RESPONDENT:

Mr Vukoja

FILE NUMBER:

PAC

129

2018

DATE DELIVERED:

3 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Nikola Velcic & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Putrus of John & Co Lawyers

Orders

That the mother have sole parental responsibility for the three children of the marriage namely X born … 2011, Y born … 2013 and Z born … 2017 (“the children”).
That the children live with the mother.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father, Mr Vukoja:
(a)Be and is hereby restrained from approaching within 100 metres, entering upon or interfering in any way with the property situate at and known as B Street, Suburb C in the state of New South Wales and the property situate at D Street, F Town in the state of New South Wales;
(b)Be and is hereby restrained from attending G School, Suburb C and H Centre, Suburb J;
(c)Be and is hereby restrained from causing or threatening to cause bodily harm to the mother; and
(d)Be and is hereby restrained from harassing, molesting or stalking the mother or the children or any of them.
That order 3 is for the personal protection of the mother Ms Vukoja and the children X, Y and Z and the powers of arrest under s 68C of the Act apply.

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 Vukoja & Vokoja 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 PARRAMATTA

FILE NUMBER: PAC 129 of 2018

Ms…

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 Vukoja and Vukoja (No 2)

Details

AGLC: Vukoja and Vukoja (No 2) [2020] FamCA 629
Case: [2020] FamCA 629
Decision Date: 3 August 2020

CaseChat Overview and Summary

In the matter of *Vukoja and Vukoja (No 2)*, Foster J of the Family Court of Australia considered a dispute between the mother, Ms Vukoja, and the father, Mr Vukoja, concerning the upbringing and welfare of their three children. The proceedings involved applications for orders relating to parental responsibility, living arrangements for the children, and protective measures for the mother and children.

The central legal issues before the court were: (1) who should have sole parental responsibility for the children; (2) with whom the children should live; and (3) whether protective orders should be made against the father to ensure the safety and well-being of the mother and children. The court was required to consider the best interests of the children in determining parental responsibility and living arrangements, and to assess the need for restraining orders under section 68B of the *Family Law Act 1975* (Cth) to protect the family members.

Foster J reasoned that it was in the best interests of the children for the mother to have sole parental responsibility and for them to live with her. The court also found it necessary to make protective orders against the father, restraining him from approaching or interfering with specific properties and educational/care facilities, and prohibiting him from causing or threatening bodily harm, harassing, molesting, or stalking the mother or the children. These orders were made pursuant to section 68B of the Act for the personal protection of the mother and children, with powers of arrest under section 68C of the Act applying.

Orders

Orders of the court

That the mother have sole parental responsibility for the three children of the marriage namely X born … 2011, Y born … 2013 and Z born … 2017 (“the children”).

That the children live with the mother.

That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father, Mr Vukoja:

(a) Be and is hereby restrained from approaching within 100 metres, entering upon or interfering in any way with the property situate at and known as B Street, Suburb C in the state of New South Wales and the property situate at D Street, F Town in the state of New South Wales;

(b) Be and is hereby restrained from attending G School, Suburb C and H Centre, Suburb J;

(d) Be and is hereby restrained from harassing, molesting or stalking the mother or the children or any of them.

That order 3 is for the personal protection of the mother Ms Vukoja and the children X, Y and Z and the powers of arrest under s 68C of the Act apply.

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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