Hoyt & Hoyt

Case [2023] FedCFamC1F 865

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hoyt & Hoyt [2023] FedCFamC1F 865

File number(s): MLC 2823 of 2023
Judgment of: STRUM J
Date of judgment:   12 October 2023
Catchwords:  FAMILY LAW ‑ PARENTING - Application to discharge or vary parenting orders recently made – No material change of circumstances to warrant discharge or substantive variation – Not in children’s best interests to discharge or substantively vary order – Previous involvement of Department of Families, Fairness and Housing – Subsequent s67Z & 69ZW reports support continuation of extant orders – Modest increase in supervised time spent supported by Child Impact Report, by Independent Children’s Lawyer and by parent with whom children live – Modest increase in time spent ordered
Legislation:

Family Law Act 1975 (Cth) ss60CA, 60CC, 69ZK 102QB.

Federal Circuit and, Family Court of Australia (Family Law) Rules 2021 rr 5.08, 8.14, 8.15   
Cases cited:

Fowler & Northwood [2022] FedCFamC1A 173

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Mazorski & Albright [2007] FamCA 520

Milson & Myron [2018] FamCA 417

Salah & Salah [2016] FamCAFC 100

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 89
Date of hearing: 13 September 2023
Place: Melbourne
The Applicant  Litigant In Person
Counsel for the Respondent Ms Andreia Monteiro
Solicitor for the Respondent Coulter Legal
Counsel for the Independent Children’s Lawyer Ms Mary Agresta
Solicitor for the Independent Children’s Lawyer Victoria Legal Aid
Table of Corrections
12 October 2023 On the coversheet, the ‘Catchwords’ have been amended to say ‘Subsequent s67Z & 69ZW reports’
12 October 2023 At paragraph 28 ‘two s 67ZW reports’ has been amended to ‘one 67Z report and one 69ZW’
12 October 2023 The heading ‘Section 67ZW report – 22 June 2023’ has been amended to ‘67Z report – 22 June 2023’;’
12 October 2023 At paragraph 32 ‘s67ZW’ has been amended to ‘s 67Z’.
12 October 2023 At paragraph 35 ‘s67ZW’ has been amended to ‘s 67Z’
12 October 2023 At paragraph 43 ‘s67ZW’ has been amended to ‘s 67Z’
12 October 2023 At paragraph 44 ‘s67ZW’ has been amended to ‘s 67Z’
12 October 2023 At paragraph 45 ‘s67ZW’ has been amended to ‘s 67Z’
12 October 2023 The heading ‘Section 67ZW report – 28 June 2023’ has been amended to ‘69Z report – 28 June 2023’
12 October 2023 At paragraph 46 ‘s67ZW’ has been amended to ‘s 69ZW’
12 October 2023 At paragraph 48 ‘s67ZW’ has been amended to ‘s 69ZW’
12 October 2023 At paragraph 50 ‘s67ZW’ has been amended to ‘s 69ZW’
12 October 2023 At paragraph 52 ‘’s 67 ZW’ has been deleted
12 October 2023 At paragraph 55 ‘’s 67 ZW’ has been deleted
12 October 2023 At paragraph 76 ‘’S 67 ZW’ has been deleted
12 October 2023 At paragraph 78 ‘’S 67 ZW’ has been deleted
12 October 2023 At paragraph 85 ‘’S…

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AGLC
Hoyt & Hoyt [2023] FedCFamC1F 865
Case
[2023] FedCFamC1F 865
Decision Date

CaseChat Overview and Summary

The matter before the court involves a parenting dispute between Mr Hoyt and Ms Hoyt. The primary issue before the court was whether there had been a material change of circumstances that would warrant a discharge or substantive variation of the interim parenting orders previously made by the Senior Judicial Registrar on 12 April 2023. The court had to determine whether the orders were still in the best interests of the children and if there were any changes that would justify altering the existing arrangements. The evidence presented included affidavits from both parents, reports from the Department of Families, Fairness and Housing, and a Child Impact Report. The court also considered the position of the Independent Children's Lawyer, who proposed that the children spend supervised time with the mother for up to four hours each fortnight.

The court found that there had been no material change of circumstances that would warrant a discharge or substantive variation of the existing orders. The concerns that led to the initial orders not only persisted but were reinforced by subsequent reports. The court noted that the Department of Families, Fairness and Housing's withdrawal from the case did not signify a change in the circumstances but rather an endorsement of the current orders. The court was particularly concerned about the mother's statements regarding the children's health and the psychological impact of these discussions on the children.

The court ordered that the children spend time with the mother on a supervised basis for four hours per fortnight, either in weekly two-hour blocks or fortnightly four-hour blocks. The existing orders regarding the children's residence and the father's sole parental responsibility were maintained. Additionally, the court ordered that the mother undergo an independent psychiatric assessment and that the children attend counselling sessions to address issues identified in the Child Impact Report. The court also made provisions for the Independent Children's Lawyer to facilitate these arrangements and for the parents to share the costs associated with the children's counselling.

The court dismissed all other applications and responses seeking interim orders. The Independent Children's Lawyer was directed to use her best endeavours to nominate a counsellor for the children in the public system to minimize costs to the parents. The court also noted that the Independent Children's Lawyer would nominate another psychiatrist for the mother's assessment at Victoria Legal Aid rates, considering the mother's objection to the previously nominated psychiatrist.

Orders

Orders of the court

MLC 2823 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HOYT

Applicant

AND:

MS HOYT

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

STRUM J

DATE OF ORDER:

12 OCTOBER 2023

THE COURT ORDERS THAT:

1. Order 11(b) of the Orders made on 12 April 2023 be varied to provide for the children, X (born 2014), Y (born 2016) and Z (born 2018) to spend time with the mother on a supervised basis, at a contact centre agreed between the parents or, failing agreement, as nominated by the father, for four (4) hours per fortnight (in weekly two-hour blocks or fortnightly four-hour blocks) or at such times as agreed between the contact centre and the parents.

2. For the avoidance of doubt, Orders 8, 9, 12, 13, 14 and 15 made on 12 April 2023 remain in full force and effect.

3. The mother and father do all acts and things necessary to facilitate the children’s attendance upon a counsellor to be nominated by the Independent Childrens Lawyer for the purpose of supporting the children to deal with the issues identified by the Court Child Expert in her Child Impact Report dated 31 August 2023, with the mother and father to share equally any out of pocket expenses for the counselling

4. To facilitate the provision of counselling for the children pursuant to the preceding Order, the father forthwith do all things necessary to obtain a Mental Health Plan (if eligible) from the children’s general medical practitioner.

5. The mother attend upon a psychiatrist nominated by the Independent Children’s Lawyer for an independent psychiatric assessment AND IT IS REQUESTED that Victoria Legal Aid fund the assessment and report from the funding provided to the Independent Children's Lawyer.

6. To facilitate the provision of Victoria Legal Aid funding for the independent psychiatric assessment ordered herein, the mother, forthwith upon any written request from the Independent Children’s Lawyer, provide to her any financial documents as may be required by Victoria Legal Aid to consider the request for funding.

7. The Independent Children's Lawyer be permitted to provide to the psychiatrist nominated by her pursuant to order 5, copies of the Department of Families, Fairness and Housing reports dated 22 and 28 June 2023, the Child Impact Report dated 31 August 2023 and copies of material produced pursuant to subpoena, including any previous psychological or psychiatric reports prepared in respect of the mother.

8. The Independent Children’s Lawyer be permitted to provide to the counsellor nominated by her pursuant to order 5 copies of the Department of Families, Fairness and Housing reports dated 22 and 28 June 2023 and the Child Impact Report dated 31 August 2023 and any psychiatric or psychological reports prepared in respect of the mother, including the independent psychiatric assessment report when released to the parties.

9. All extant applications and responses seeking interim orders (insofar as same have not otherwise been withdrawn) be otherwise dismissed.

AND THE COURT NOTES THAT:

A. The Independent Children’s Lawyer will use her best endeavours to nominate a Counsellor for the children in the public system so that the cost to the parents is minimised.

B. The Independent Children's Lawyer notes the mother’s objection to Dr B being nominated by her and will nominate another psychiatrist who is willing to undertake the assessment at VLA rates.

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.

Background

Background to the litigation

The father’s position is substantially supported by the Independent Children’s Lawyer, who proposes that the children spend supervised time with the mother for up to four hours each fortnight at a contact centre, either two hours each week or four hours each fortnight. The Independent Children’s Lawyer also seeks orders to facilitate the children’s attendance upon a counsellor and for the mother to undergo an independent psychiatric assessment, neither of which was seriously opposed and which I shall order.Background The parents separated in January 2019 and proceedings were not instituted until the father filed an Initiating Application on 20 March 2023. In the intervening period, the children initially lived with the mother and spent time with the father, until the Department of Families, Fairness and Housing (Victoria) (“Department”) became involved with the family and proceedings were later instituted in the Children’s Court of Victoria in about mid-2022. In his Initiating Application, the father sought both final and interim parenting orders. In the latter regard, he sought orders, inter alia, that he have sole parental responsibility for the children and that they spend time with the mother three times per week, for periods of two hours per visit, apparently facilitated by a family contact service. The interim orders sought were drawn poorly and, it would appear, with little thought; an order that the children live with the father was not even sought. By her Response to Initiating Application filed on 19 June 2023, the mother (who was already self-represented) similarly sought both final and interim parenting orders. In the latter regard, she sought, in summary, that the children live with her and spend time with the father. The father’s Initiating Application was listed before an SJR on 12 April 2023. On that day, the father was represented by counsel, the mother appeared in person and there was an appearance as amicus curiae on behalf of the Department. The Senior Judicial Registrar made orders which, pursuant to s. 69ZK of the Act, were expressed to come into force and effect “upon the cessation of the interim accommodation order made by the Children’s Court of Victoria as a result of it being withdrawn by the Department of Families Fairness and Housing or dismissed by the Supreme Court of Victoria (on the hearing dated [early] 2023)”. Relevantly, for present purposes, the Senior Judicial Registrar ordered that the father have sole parental responsibility for the children (order 9); the children live with him (order 8); and they spend time with the mother on a supervised basis, at a contact centre, for two hours per fortnight (or at such times as agreed between the contact centre and the parents), with the costs thereof to be shared equally between the parents (order 11). On that date, the mother had not yet filed any material in these proceedings, but she told the Court that she wished to, and would, do so. However, the first document that was filed by her, namely, her Response to Initiating Application, was not filed until 19 June 2023, more than two months thereafter. No explanation was proffered for her delay. The first affidavit filed by her was filed on 23 June 2023, it would appear in support of the interim orders sought in her Response to Initiating Application. Whilst that interim application does not seem ever to have been dealt with, less than three weeks later, the mother filed her Application in a Proceeding, the subject of these reasons for judgment which, effectively, supplants it. Whilst the mother, in that Application, seeks that order 11 of the interim parenting orders made by the SJR on 12 April 2023 be “struck out”, on the asserted basis that it was made by reason alleged of “vexatious behaviour of the Applicant [father] and his legal representative” [sic], there has been no application by her to review that order or, indeed, any of the other orders made that day.

Evidence

Evidence Before The Court

The SJR continued at [12] – [13]:Since the involvement of DFFH and the Interim Accommodation Order, the mother has had time with the children on an arrangement between DFFH and the mother, which appears to have been two to three times a week, for two hours, on an unsupervised basis, and that, in February of this year, there was some reference to that time being extended. The father has raised issues in relation to not only the overall risk factors that the children face, but issues in relation to the mother’s recent time with the children. For example, in paragraph 33 of the father’s affidavit, he says that: [In early] 2023, my mother picked the children up from school and kindergarten. [Z’s] teacher informed my mother that [Z] had a sore stomach and remarked, "Kids with ADHD get this from time to time". My mother queried this remark and the teacher replied that [Ms Hoyt] had informed her that [Z] had ADHD. Also on [that day], after another extended visit with [Ms Hoyt], the children returned home and told me that [Ms Hoyt] had told them they all had ADHD again. The children were confused and distressed. [Y] said to me, "I wish she would stop telling us we have ADHD when we don't. Why does she keep telling us this, Dad". These matters are of grave concern. They are matters that have concerned DFFH for over eight months, and they are matters that concern the Court. The psychological impact on the children or emotional impact on the children having these matters raised with them is highly concerning. This is apart from the fact that the Court has had – has concerns about the historic allegations in this case in relation to the mother actually medicating some of the children. Evidence I have carefully read, in particular, the mother’s affidavits filed on 6 July 2023 and 1 September 2023, as well as her written submissions and the single document tendered by her, being an email dated 26 April 2023 sent at 6.03pm by the Department to the Children’s Court and copied to the father’s solicitor and to the mother (Exhibit M-1), to which I refer further below. In my view, the mother’s affidavits do not advance her case; they are replete with matters of comment, argument, speculation and submission, to which little (if any) weight can be accorded, especially at this interlocutory stage in the proceedings. At paragraph 24 of the earlier affidavit, she deposes:“Our current circumstances are the unfortunate result of an inexperienced paediatrician without a familiar understanding of ADHD and more importantly, the common co‑occurring conditions of anxiety and Oppositional Defiant Disorder”. However, there is no evidence that any of the children suffer from anxiety or Oppositional Defiant Disorder, or that Z or Y suffer from ADHD, In the present case, there is little common ground between the father and the mother; however, the father’s case is substantially supported by the material from the Department, as well as the Child Impact Report dated 31 August 2023.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The report writer’s recommendations are as follows (at paragraphs 34 ‑ 37):The Court may consider increasing supervised spend time for a longer period each visit, either at a Contact centre or supervised in a community setting, like a playground. [Mr Hoyt] could provide sealed snacks or drinks if required, to alleviate any worries he or the children may have about surreptitious dispensing of medication in food or drink. The Court may consider an independent psychological assessment for [Ms Hoyt] to detect any potential underlying mental health issues that could be impacting on her concerns and / or decision making with regard to the children’s health and wellbeing The children may benefit from Counselling to assist them to process feelings of guilt and worry about their mother, their parents’ separation, abrupt changes to their care experience and any feelings of guilt or responsibility they may be holding over Child Protection disclosures and investigations. The provision of the Contact Centre report and a psychological assessment could assist in informing a Family Report with regard to future planning for time spent between [Ms Hoyt] and the children. Consideration It is apparent that there has been no material change of circumstances that would warrant any substantive variation, let alone reversal, of the interim parenting orders made by the SJR on 12 April 2023. The concerns that led the Senior Judicial Registrar to make those orders not only persist but are strengthened by, in particular, the two subsequent reports of the Department and the even more recent Child Impact Report. Whilst those orders were made with only the affidavit material of the father before the Court, the Senior Judicial Registrar, as I have noted above, recorded that the Court had heard openly from the mother and had given her a “free rein” to address it about the matters that particularly concerned her. For present purposes, the two affidavits she has filed since then do not advance her case any further. Indeed, concerningly, at paragraph 24 of her first affidavit, filed on 6 July 2023, she deposes that the continues to believe that –“Our current circumstances are the unfortunate result of an inexperienced paediatrician without a familiar understanding of ADHD and more importantly, the common co‑occurring conditions of anxiety and Oppositional Defiant Disorder” (emphasis added). However, as observed above, only X has been diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”); Y and Z have not and none of the children have been diagnosed with any other condition of like nature. Insofar as the mother asserts there has been a material change that supports her case, namely, the withdrawal of the involvement of the Department of Families, Fairness and Housing with the family, she is misguided. It is abundantly clear, from the two reports, that the Department’s withdrawal was not because of any renunciation by it of its concerns but, rather, because the Department is satisfied that the children’s best interests are safeguarded by the extant interim parenting orders and will continue to be so by this Court in the course of these proceedings.