Houghton & Cotter
[2022] FedCFamC1F 417
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Houghton & Cotter [2022] FedCFamC1F 417
File number(s): MLC 12345 of 2019 Judgment of: STRUM J Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – CHILDREN – Where the final hearing was adjourned to allow time for family therapy – where the mother has since been admitted to the Substance Withdrawal Program at F Medical Clinic – where the matter could not proceed and has been adjourned for mention to determine the mother’s capacity and future conduct of the proceedings. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.12(1) Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 3 June 2022 Place: Melbourne Counsel for the Applicant: Ms Ben-Simon Solicitor for the Applicant: Sher Richards Legal Counsel for the Respondent: Mr Meehan Solicitor for the Respondent: Susan Snyder Counsel for the Independent Children's Lawyer: Mr Tesoriero Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 12345 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOUGHTON
Applicant
AND: MS COTTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.The remaining days of the final hearing listed on 7 June 2022 for 4 days be vacated.
2.The matter be adjourned for mention before the Honourable Justice Strum at 10:00am on 12 August 2022.
3.Any application in a proceeding brought by either the applicant or the respondent be made by 22 July 2022.
4.Any response to an application in a proceeding by made by 5 August 2022.
5.The costs of the parties be reserved.
6.Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) this matter reasonably required the attendance of counsel.
THE COURT ORDERS, BY CONSENT OF THE RESPONDENT AND THE INDEPENDENT CHILDREN’S LAWYER, THAT:
7.Paragraphs 5, 6, 9, 10, 11, 12, 13, 18, 19 of the orders made 31 January 2017 be suspended until further order.
8.The orders made 23 March 2020 be discharged.
9.The father make the children available to speak to the mother by telephone each Wednesday between 7pm and 7:30pm, with the mother to initiate the call.
10.The children and mother and father attend upon Mr B, or any other counsellor nominated by the Independent Children’s Lawyer for the purposes of counselling, and that the parties follow all reasonable directions of the counsellor, including attendance, which may occur electronically as directed by the counsellor.
11.The Independent Children’s Lawyer be authorised to request the mother undertake supervised hair follicle tests (head hair sample) for the detection of alcohol consumption with the G Testing Service (or other nominated service), at the expense of the Mother.
12.For the purpose of ensuring the utility and accuracy of the hair follicle tests to be undertaken, the mother must maintain a hair length that will provide a sample of at least 4cm, and she not colour, bleach or apply any product designed to strip or adulterate the hair sample.
AND THE COURT NOTES THAT:
A.That the Independent Children’s Lawyer be at liberty to request the hair follicle test at intervals of at least every 3 months.
B.In circumstances where the Mother has been voluntarily admitted to the Substance Withdrawal Program in the C Unit of the F Medical Clinic, she was unable to attend the hearing this day and it is not clear if she has capacity to provide instructions or will require a litigation guardian. Accordingly, her Counsel could neither consent to or oppose the making of these orders. Nevertheless, the Court was of the opinion that it was in the best interests of the children to make these orders.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
H.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Houghton & Cotter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
These proceedings came before me for trial on 7 February of this year. They concern parenting applications in relation to the two children of the parties' relationship, Y, born in 2008 and is 14 years of age, and X, born in 2011 and is 11 years of age. It was abundantly clear to me when the matter came before me in February that it was not ready, or should not then proceed. This was by reason of the recommendations made by Dr D, the family report writer, who had filed two reports, that what this case needed before it could be determined by a judge, if necessary, was some intensive family therapy. For that reason, it was adjourned until today.
Since those orders were made, there are two salient developments. Firstly, Mr B, the family therapist, has prepared two short-form reports and, secondly, the mother has in recent times apparently relapsed in her alcoholism and was earlier this week voluntarily admitted to the F Medical Clinic for treatment.
It is quite clear that the trial today cannot proceed, and no one has suggested that it should do so. It is the evidence of the mother's treating psychologist, Mr E, that she had, until recently, remained abstinent from addictive substances but has more recently struggled with substance abuse, from which I infer that she has relapsed, and no one sought to dissuade me from that. It is a concern that I do not know, nor does the mother’s counsel know, whether the mother is a person who is capable of giving instructions for the conduct of the proceeding. Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides:
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
I do not know whether, by reason of the mother's current state, she is or is not such a person.
However, my preliminary view, and I cannot put it any higher than that, is, given the evidence of her psychologist, and the fact that she has been admitted to the F Medical Clinic Substance Withdrawal Program in the C Unit of that clinic, it may well be that the mother is not a person presently capable of adequately conducting or giving adequate instruction for the conduct of the proceedings. Accordingly, I am loath to do anything other than the very minimum that is required to ensure that the parties are aware of their rights and responsibilities, that there is no ambiguity and that the mother's position is not otherwise prejudiced.
Final orders were made by the Court in 2017. The mother reinstituted proceedings in 2019. The Honourable Justice Williams made orders on 23 March 2020 in which, by Notation B thereof, her Honour stipulated that it was intended that those orders be “holding orders” and the matter be listed at the Court's earliest convenience. For reasons which are not readily apparent, when the matter came before a Senior Judicial Registrar last year, all interim applications were dismissed but the orders that were founded on those interim applications, being the holding orders made by Williams J, were not similarly discharged. That, in my view, exposed the parties to a degree of uncertainty. I disagree with the proposition which was properly not forcefully pressed by counsel for the father that those orders were implicitly discharged. Orders can be made on the basis of applications which may subsequently be dismissed and yet the orders remain in full force and effect if not discharged. The orders should have been discharged, given what I am told the Senior Judicial Registrar determined, although I have not had ready access to those reasons today, nor do I need to do so. It is quite clear, on any view, by reason of the intervening developments in recent months since the matter was last before me, that those orders are no longer appropriate orders and, in any event, cannot be presently complied with given where the mother unfortunately finds herself.
As I have indicated, I will make very limited orders which regularise the position. The father, as the primary carer of these children, needs to know what are his obligations and for there to be no ambiguity. I have been handed a minute of orders proposed by the Independent Children's Lawyer (“ICL”). The father consents to the orders sought by the ICL. Counsel for the mother is in a difficult position, given the uncertainty that surrounds her ability to take instructions from her client, so it is best left on the basis that the orders are by consent as between the ICL and the father, with the mother neither consenting to, nor opposing, the making of those orders. It is in the best interests of the children, in the circumstances, that those orders be made with the modest amendments discussed with counsel.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 8 June 2022
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