Hoyt & Hoyt
[2023] FedCFamC1F 865
•12 October 2023
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 67 ZW’ has been deleted ORDERS
MLC 2823 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOYT
ApplicantAND: MS HOYT
RespondentINDEPENDENT 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoyt & Hoyt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 12 October 2023
STRUM J:
Applications
By Application in a Proceeding filed on 6 July 2023, the mother (who is the respondent in these proceedings), Ms Hoyt, seeks a number of interim orders, including parenting orders in relation to the children of the marriage: X, born 2014; Y, born 2016; and Z, born 2018. X has been diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”); Y and Z have not. None of the children have been diagnosed with any other condition of like nature.
The mother is a litigant in person, which may well explain some of the orders she seeks and the form thereof. She seeks, inter alia, that:
• Paragraph 11 of the interim parenting orders made by [the] SJR on 12 April 2023, which provides for the children to spend supervised time with her at a contact centre for two hours per fortnight, “be struck out [sic] after it was made in response to the vexatious behaviour of the Applicant and his legal representative”;
• The children “resume a meaningful relationship with their mother following 12 months of traumatic separation” by:
•the return of the children to have primary care “for their protection and safety”; or
•the children spending a minimum of three days and nights per week in her care “following 12 months of resistance in contact progressing”; or
•such orders for the children to spend time with her as the Court deems appropriate, “taking the fact [sic] of the matter into consideration and the severe detriment caused to the mother and children by the separation”.
• The time the children spend with the father “reflect the protective concerns exhibited over the past 12 months, the current Family Violence proceedings, and the Father’s contravention of the previous Orders made in the Children’s Court”.
The mother also seeks an order that the father’s solicitor be restrained from representing him in any future legal proceedings. The gravamen of her complaint in this respect, when properly distilled, seems to be that the solicitor is acting as he is ethically and contractually required to do, namely, competently prosecuting the father’s case, on instructions. The mother was unable to identify any proper basis in law for restraining the father’s solicitor from continuing to act for him and, in the circumstances, I shall dismiss her application for such an order.
By Response to an Application in a Proceeding filed 26 July 2023, the father (who is the applicant in these proceedings), Mr Hoyt, seeks that:
•The interim parenting orders made by Senior Judicial Registrar […] on 12 April 2023 remain in full force and effect;
•The mother be deemed a vexatious litigant pursuant to s. 102QB(2) of the Family Law Act 1975 (Cth) (“Act”); and
•The mother be required to seek leave of the Court prior to filing a further Application in a Proceeding.
Notwithstanding the position adopted in his Response to Application in a Proceeding that the extant interim parenting orders remain in full force and effect, at the hearing on 13 September 2023, his position was that, although the time to be spent between the mother and the children should remain supervised, at a contact centre, nevertheless, it should be increased from two hours to four hours per fortnight. Further, at the hearing, he did not pursue the latter two matters and he was granted leave to withdraw his application for orders in terms of orders 1, 2 and 4 sought in his Response to Application in a Proceeding.
The parents’ Application and Response respectively are supported by, in the case of the mother, affidavits filed on 6 July 2023 and 1 September 2023 and, in the case of the father, an affidavit filed on 6 September 2023. The father initially sought to rely upon earlier affidavits filed by him in these proceedings. Rule 5.08(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”) provides that, at the hearing of an application for interlocutory orders, one affidavit by each party may be relied upon as evidence in chief. Further, r. 8.14 of the Rules provides that an affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed.
In the circumstances, the father did not press to rely upon his earlier affidavits at the hearing the subject of these Reasons for Judgment, the substance of which, in any event, was repeated in his affidavit filed on 6 September 2023. However, in circumstances where the mother was self-represented and had drawn both of her affidavits herself, and it was the first substantive hearing for which she had adduced any evidence, I granted leave to her to rely upon them.
Each of the father and the Independent Children’s Lawyer filed an Outline of Case Document (Interim Hearing). A court book common to those two parties, which contained the requisite documents of all three parties for a court book, was relied upon by them.
The mother relied upon a document styled “Submissions and Orders Sought”, which was contained in a court book unilaterally prepared by her. In circumstances where she was self‑represented and not legally trained, neither her court book, nor her submissions therein, which were prepared by her, were of any great assistance to the Court. In particular, her court book contained documents which were inappropriate for such a compendium and I explained to her that, other than filed documents, if she wished to rely upon any of the other documents therein, she would need to seek to tender them individually. See also r. 8.15(3)(e) of the Rules. In the result, she tendered only one document, to which I refer below.
Whilst each of the mother and the father, in their written submissions and Outline of Case Document respectively, sought orders beyond the scope of their Application and Response, including, in the case of the mother, an order for sole parental responsibility, by the conclusion of the hearing, the gravamen of the interim proceedings was whether or not the interim parenting orders made by the SJR on 12 April 2023 should be discharged or varied in any substantive way, other than to increase the mother’s supervised time with the children from two to four hours per fortnight at a contact centre.
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.
Whilst there was no affidavit material filed by or on behalf of the mother before the Court on 12 April 2023, the SJR, in his reasons for judgment at [14], recorded that:
“The Court has heard openly from the mother today and has given the mother a free rein … to address the Court about matters that particularly concern her. It is disappointing for the Court that the mother, rather than address the issues that specifically are confronting the mother at the moment and have created a major change in the welfare arrangements of the children over the last nine months, that the mother’s concern has been focused on the behaviour of the father. This Court has no concerns at this stage about the father and the role he has played in the children’s life and the role he continues to play in the children’s life. …”
From those reasons for judgment, it appears that the children were removed from the mother’s care and placed into that of the father in July 2022 and, in July 2022, an interim accommodation order was made by the Children’s Court at City C for them to remain in his care. The mother sought to review the making of that order in the Supreme Court of Victoria, which application was pending when the matter came before the Senior Judicial Registrar; hence the order made by him pursuant to s. 69ZK of the Act. The position of the Department before this Court on 12 April 2023 was that it would concede, in the Children’s Court / Supreme Court proceedings, that the matter should be dealt with in this Court.
The Senior Judicial Registrar referred to material before the Court from the Department and said at [8] that “there seems to be 6 matters of concern to DFFH:
(a)that the mother has engaged in what is described as ‘doctor shopping’;
(b)seeking diagnoses and medication for the children from various paediatricians, all of which were refused;
(c)that the wife administered medication to [Y] not prescribed or recommended by any health professional, which carry severe and potential side-effects up to a risk of death;
(d)that the wife inappropriately disciplines the children, including openhanded smacking to various areas of their body, swearing at them and denigrating them;
(e)that the wife has threatened to harm herself and against [Y], including one or both of the two of them [sic]; and
(f)that the wife engaged in abuse of alcohol while the children are in her care”.
The Senior Judicial Registrar described the allegations as being “at the most serious level” (at [9]). Whilst acknowledging that he was unable to make findings in relation to disputed facts (as am I), the SJR correctly observed that did not mean the allegations were to be ignored; the Court was entitled to take into account the overall seriousness of the allegations, just as the Department had done. He said that the Court had “grave concerns about the welfare of the children in the care of the mother at [that] stage”.
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.
In Salah & Salah [2016] FamCAFC 100, the Full Court said at [37] – [41]:
It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode[2006] FamCAFC 1346; (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
...Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).
In Deiter & Deiter [2011] FamCAFC 82, to which counsel for the father referred in submissions, the Full Court said at [62] – [64]:
62.We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
63.In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
64.We accept that the Acting Magistrate could make no definitive prediction of the likelihood of the father behaving violently toward the mother or others in the future. That would be hard enough in circumstances where findings could be made about what had occurred in the past. However, his Honour should have been alert to the potential consequences for the mother and children in the event the father was to behave violently pending a final hearing – including by carrying out the threats to kill which the mother claimed he had made in the past.
Since the interim orders were made on 12 April 2023, there has been further, independent material, namely, one 67Z report and one 69ZW report prepared by the Department for this Court, dated 22 June 2023 (Exhibit ICL-1) and 23 June 2023 (exhibit ICL-2), as well as the Child Impact Report dated 31 August 2023. It is appropriate to focus, in particular, on those reports, in order to ascertain whether there has been any change in circumstances, or any fresh evidence, since the extant orders were made.
In Milson & Myron [2018] FamCA 417 at [25], Carew J said:
“The reference to whether or not there has been a significant change in circumstances relates to what is generally called a ‘guiding principle’ or ‘rule’ established in the case of Rice & Asplund [(1979) FLC 90-75]. The main purpose of it is to minimise repeated hearings about the same parenting issues the best interests of children remains paramount”.
In Fowler & Northwood [2022] FedCFamC1A 173 at [34], Austin J, on appeal, said:
“… both parties conducted the proceedings on the basis that circumstances had indeed materially changed since the last orders were made in June 2020. Each party now seeks the variation of those orders, which they can only do by contending the variations sought are warranted by changed circumstances”.
His Honour continued at [35]:
“…The issue between the parties therefore simply devolved to whether the changed circumstances justified an interlocutory variation of the existing orders or whether the decision about variation ought await the upcoming trial when all of the evidence is tested. There was no reason based in legal principle why the orders could not be varied on an interlocutory basis. Rather, that was a question the answer to which was governed by the evidence”.
Section 67Z report - 22 June 2023
The first report by the Department of Families, Fairness and Housing, pursuant to s. 67Z of the Act, dated 22 June 2023, advises the Court that the “Department does not intend to intervene in the proceedings and no further action will be taken in this matter”.
Reference was made to reports having been received in relation to the children in mid-2022 which included concerns that the mother was providing medication to Y that was not prescribed to her and that she was struggling to manage the children, resulting in her shaking Y and making threats to harm her, as well as an increase in her alcohol use.
“Child Protection’s investigation determined that [Ms Hoyt] exhibited a pattern of behaviour characteristic of ‘doctor-shopping’, that [Ms Hoyt] was providing [Y] with various medications that were not prescribed to [Y] and that had potential severe side effects, that [Ms Hoyt] was inappropriately physically disciplining the children, that [Ms Hoyt] was engaging in problematic alcohol use, and that [Ms Hoyt] was seeking various diagnoses for the children contrary to professional advice. These concerns amassed to form Child Protection’s primary concern that [Ms Hoyt] was experiencing adverse mental health that was likely to continue to cause significant harm to the children. Child Protection investigated the concerns regarding the safety and wellbeing of [X], [Y] and [Z] in the care of their mother. It was assessed at this time that the children were at imminent and unacceptable risk of harm in their mother’s care. Child Protection substantiated the concerns identifying [Ms Hoyt] is responsible for harm under section 162 (e) and (f) of the Children Youth and Family Act (2005).”
It was reported that attempts were made to work with the mother, on a voluntary basis, to reduce the protective concerns and have the children returned to her care. However, the mother’s “behaviours resulted in the need for Child Protection to seek legal intervention and the children were made subject to an Interim Accommodation Order (“IAO”) to their father, [Mr Hoyt], to ensure their safety whilst [Ms Hoyt] continued to work on her behaviours and parenting practices that places [sic] her children at risk in her care”.
The s 67Z report refers to concerns raised by the mother regarding family violence said by her to have been perpetrated by the father and alleged risks to the children in his care. However, investigations identified that “[i]n terms of family violence risk assessment, there [was] no indication of high-risk factors being present that would reflect any risk of serious outcomes to the mother or children under the current circumstances”.
It was further reported that whilst continued attempts were made to work with the mother, her “behaviours towards Child Protection staff escalated which resulted in the need to develop a clear communication strategy to prevent exposing staff to ongoing unsubstantiated allegations and abuse”. Further:
“The negative impact on the children’s emotional and psychological development of ongoing Child Protection involvement was concerning, in particular the impact on [Y] who was overly protective of [Ms Hoyt] and her sense that [Ms Hoyt’s] current situation had the capacity to significantly impact on her sense of self.
Child Protection’s assessment that [Mr Hoyt] is a safe and appropriate parent for [X], [Y] and [Z] informed the decision that Child Protection should withdraw and with the children to remain in his care. It was also identified that due to [Ms Hoyt’s] ongoing behaviours and views of the children that without the formalisation of Family Law intervention the safety and wellbeing of the children could not be guaranteed. [Mr Hoyt] was then encouraged to seek FLC interim orders to ensure the safety of the children, if Child Protection were to withdraw.”
As the mother had instituted an appeal in the Supreme Court of Victoria against the interim accommodation order, it was reported that Child Protection did not immediately seek to withdraw following the interim parenting orders made by the SJR on 12 April 2023, so “as not to undermine [Ms Hoyt’s] application [sic] in the Supreme Court”. However, soon after, the Supreme Court adjourned the appellate proceedings to a date to be fixed, as it considered that “the most appropriate course is to adjourn the hearing of the appeal until after the Secretary has made the foreshadowed application to withdraw or discontinue protection applications, and the Children’s Court has considered and determined the application”.
It was further reported that:
“Given there is consensus between the FCFCOA and the Supreme Court that the most appropriate jurisdiction for the matter is the FCFCOA and that there are suitable interim orders in the FCFCOA that supports the safety and well-being of the children, child protection sought to withdraw the current Protection Application before the Magistrates Court Family Division.”
It was assessed that the father was a “safe parent” and, as the interim parenting orders made by the SJR provided for him to have sole parental responsibility for the children and the mother’s contact with them to be “fully supervised”, there was sufficient safety for the children for Child Protection to withdraw.
It was reported that the mother had –
“been identified as a vexatious complainant and over the course of the Child Protection intervention has attempted to use the system as a form of control. She has reportedly declared that she ‘will appeal and appeal and appeal’ to prevent [Mr Hoyt] from getting his way and stated that if she knows a FVIO could make him disappear she would have done this years ago. Child Protection were required to restrict [Ms Hoyt] communication with Child Protection to a communication tool to prevent ongoing unfounded allegations complaints against staff adversely impacting the programs capacity to work effectively”.
Although the concerns regarding the mother and harm to the children were said to have been substantiated under s 162(e) and (f) of the Children Youth and Family Act 2005 (Vic), it was reported that –
“…the decision was made not to pursue proof in the Magistrates Court Family Division to prevent [Ms Hoyt] from continuing to use the system to draw out the outcome resulting in Child Protection remaining involved in the children’s lives when it had been assessed as not required”.
In the circumstances, in May 2023, the Protection Application in the Family Division of the Magistrates’ Court (alternatively referred to as the Children’s Court) at City C was withdrawn by the Department of Families, Fairness and Housing and an application by the mother for a new interim accommodation order, placing the children into her care, was struck out. Accordingly, the mother’s appeal was similarly struck out by the Supreme Court.
However, the s 67Z report states:
“Given [Ms Hoyt’s] fixated belief that her children are unsafe in [Mr Hoyt’s] care and her unrelenting efforts to discredit him and those that do not support her views of the children’s neurodiversity it is highly likely that she will raise unfounded allegations against [Mr Hoyt] into the future. It is therefore strongly recommended that any future reports that are received are viewed through the lens of [Ms Hoyt’s] attempts of system abuse and the thorough assessment completed that identified [Mr Hoyt] as a safe parent”.
I interpolate, at this point, that those predictions unfortunately might be said to have been prophetic, not only because of the similar allegations raised by the mother in these proceedings but because, on 20 June 2023, the Department of Families, Fairness and Housing received another report regarding the children in the care of the father. It is inferentially, but tolerably, clear from the s 67Z report that, as anticipated, it was the mother who made this fresh complaint, in relation to which it was stated:
“The current report identifies that through the Family Law Court circuit area [sic], that [Ms Hoyt] raised concerns for the children well-being in the care of [Mr Hoyt], alleging family violence, mental health issues, substance misuse and threats of harm perpetrated by [Mr Hoyt]. It is known that these concerns have recently been investigated and unsubstantiated against [Mr Hoyt], however Child Protection substantiated the concerns identifying [Ms Hoyt] as responsible for harm under section 162 (e) and (f) of the Children Youth and Family Act (2005), which has been recently investigated and unsubstantiated”.
After both setting out verbatim and summarising, at considerable length, aspects of the fresh complaint, the s 67Z report concluded as follows:
The Department have reviewed the current report and most previous Child Protection history. This report does not indicate that the children are at an unacceptable risk of harm in [Mr Hoyt’s] care, as the existing concerns are known to Child Protection and have been assessed as insufficient information to suggest otherwise, or that the children are at risk in [Mr Hoyt’s] care.
At recent Child Protection closure, it is noted that all three children appear to present with hypervigilant behaviours when with [Ms Hoyt]. [X] has been observed to reinforce to [Ms Hoyt] that he loves her within a short period of time. [Y] will defend [Ms Hoyt] and take the blame for her behaviours and try and make things right for her. [Z] does not want to talk about [Ms Hoyt], it is believed that this is to prevent saying the wrong thing that may upset her.
It was also noted that [Ms Hoyt] has been assessed as a vexatious complainant and child protection were required to develop a communication plan with her to prevent the relentless allegations against staff which prevented the capacity meet the program need.
It is noted that [Ms Hoyt] has utilised multiple avenues including Supreme Court, Magistrates Court, Ministerial complaints, family violence applications and consistent unfounded allegations against staff as an attempt to use the system to gain a positive outcome for her. Given this it is highly likely that she (or an associate) will make unfounded reports against [Mr Hoyt] and his care of the children, it is therefore strongly recommended that all reports received are viewed through the lens of system abuse.
Child Protection’s assessment and recommendations remain in place and unchanged. The Federal Circuit Court is now positioned to determine custody and contact arrangements that is in the children’s best interests, whilst ensuring their overall safety and wellbeing. There is no further role for Child Protection currently.
Section 69ZW report - 28 June 2023
It is unclear why the second report by the Department of Families, Fairness and Housing, pursuant to s. 69ZW of the Act, dated 28 June 2023, was prepared less than a week after the s 67Z report. It traverses much of the information contained in the earlier report but also contains other information which is, prima facie, troubling. It expands upon the concerns of the Department of Families, Fairness and Housing regarding the mother, which resulted in the children being placed in the father’s care. These included:
· Reports from medical professionals regarding [Ms Hoyt’s] persistent attempts to obtain prescription medication for [Y] claim a range of behavioural issues. It was reported by one medical practice that [Ms Hoyt] presented with intimidating and abusive behaviour causing the medical practitioner to become distressed.
· It was reported that [Ms Hoyt] was providing [Y] with [X’s] ADHD medication […] which had potential severe side effects. This report was supported by disclosures from the children that this was occurring.
· Reports that [Ms Hoyt] was insisting that [Z] had a diagnosis although would not clarify what this was and attributing this ‘diagnosis’, to a deterioration in [Z’s] presentation and behaviour.
· Disclosures regarding [Ms Hoyt] physically assaulting [Y] by punching her to the stomach and swearing at her on a regular basis as well as forcing [Y] to take three tablets per day believed to be [prescription medications].
Reference was also made to concerns that had been raised that the mother was “forging referral letters to paediatricians to have [Y] assessed without medical cause thereby placing her at risk of harm”.
The s 69ZW report concludes with the following recommendations:
(1)Any decisions regarding future contact arrangements between [Ms Hoyt] and the children take into consideration:
•Child Protection’s assessment at time of closure in May 2023 that contact be between [Ms Hoyt] and the children continue to be supervised.
•[Ms Hoyt’s] history of concerning behaviour towards the children including persistently telling them they have a diagnosis, perpetration of physical and verbal abuse and forcing [Y] to take medication that is not prescribed for her despite the risk of severe physical side effects.
•[Ms Hoyt] telling the children to keep secrets and that she will be taking them back into her care as well as having previously done this leading to them being removed from her care by Child Protection.
•It is not known what progress if any [Ms Hoyt] has made to address the concerns, however the recent report dated 22 June 2023 indicates very little.
(2)As demonstrated by the most recent to Child Protection, [Ms Hoyt] presents with a fixated belief that her children are unsafe in [Mr Hoyt’s] care and continues her unrelenting efforts to discredit him and those that do not support her views of her children's neurodiversity. It is highly likely that she will continue to raise unfounded allegations against [Mr Hoyt] into the future. Given this, it is strongly recommended that any future reports received are viewed through the lens of [Ms Hoyt’s] persistent attempts of system abuse and the already thorough assessment completed that identified [Mr Hoyt] as a safe parent.
(3)[Ms Hoyt] needs to demonstrate she is willing to address the protective concerns that lead to child protection involvement inclusive of seeking Alcohol and Other Drug counselling and a Mental Health assessment and any ongoing treatment if recommended.
(4)If further information is required, consideration be given to a Subpoena for the Child Protection files.
Exhibit M-1
As referred to above, the mother tendered an email sent at 6.03pm on 26 April 2023 by the Department of Families, Fairness and Housing to the Children’s Court and copied to the father’s solicitor and to her, which was marked Exhibit M-1, apparently in the belief that it somehow supported her case. It does no such thing.
In the course of her oral submissions, it became apparent that she mistakenly believes the withdrawal by the Department of its Protection Application was somehow a volte face by it and a renunciation of its concerns, if not an admission of the erroneous nature thereof. However, as both the first and second reports make clear, the Department had assessed that the interim parenting orders made by the SJR provided sufficient safety for the children for it to withdraw and that this Court is the appropriate jurisdiction for the matter henceforth.
Contrary to the mother’s belief and submission, this is in fact confirmed by the email, the author of which relevantly stated:
“I confirm that the disposition of the Department remains that of no order, and my client seeks that the Protection Application to [sic] be withdrawn. It is accepted that following the filing of a Protection Application, it is not possible for the Department to unilaterally withdraw the Protection Application and bring proceedings to an end without the leave of the Court pursuant to the case of Secretary of the Department of Human Services v Sam Yalniz & Others. My client respectfully submits that the Court ought to grant the Department leave to withdraw without proof of the Protection Application and thereby bring the proceedings in the Children’s Court to an end”.
This is entirely consistent with the position of the Department of Families, Fairness and Housing in both its Reports.
Other evidence
Presumably following the fourth and final of the recommendations of the Department in its s 69ZW report, a subpoena was issued to, and documents were produced by, it. Counsel for the father tendered two of those documents:
· A Protection Application Report and a Disposition Report containing recommendations, both dated 5 August 2022, prepared by the Department and addressed to the [City C] Children’s Court, Children’s – Family Division, in support of its protection application (Exhibit F-1); and
· a Summary Information Form, dated 22 February 2023, prepared by the Department “for all emergency care applications” (Exhibit F-2).
Further, counsel for the father tendered a chain of emails from the mother to the father and his solicitor dated 14 and 15 March 2023.
Insofar as Exhibits F-1 and F-2 are concerned, I have read and had regard to them; however, for present purposes, they take the matter no further than the 67Z and 69ZW reports, the preparation of which post-dates the making of the interim parenting orders.
Insofar as Exhibit F-3 is concerned, the communications from the mother only serve to confirm, if not heighten, the concerns regarding her and her parenting.
In the email sent by the mother on 14 March 2023, at 2.18pm, she stated:
“Just because CP are involved doesn’t mean any convincing evidence exists. It doesn’t. If he thinks my actions (of providing a minute amount of the harmless but immensely beneficial medication, […], to [Y] for a total of three weeks) were illegal, then he should be significantly concerned about his decision to withdraw [X’s] prescription medication without first seeking medical advice. He still thinks it was [another medication] she was getting, doesn’t he? Moron. No one should listen to [Mr D], he is ignorant and hubristic.
Denying a child access to appropriate medical treatment is against the law and he did this to [X]. This explains the motor [sic] tics he is exhibiting.
My actions were in alignment with the necessary legal responsibility I had to protect the safety of my other 2 children from their sister’s violence. The bullied became the bully, in her case.
And no [Country E].”
Concerningly, the mother admits that she administered unprescribed medication to Y but minimises the gravity of her actions by contending that it was a minute amount, harmless, immensely beneficial, necessary and in accordance with her legal responsibilities. I was not pointed to any medical evidence that supports these assertions.
The statement: “And no [Country E]” relates to the father’s wish to take the children on a holiday there in mid-2023, which was the subject of one of the interim orders sought by him in his Initiating Application. One of the orders made by the SJR on 12 April 2023 (order 16) was that the father be permitted to travel there with the children between certain dates in mid-2023. In his reasons for judgment delivered that day, the Senior Judicial Registrar said at [24] – [25]:
“… There is a further application by the father that he be permitted to travel with the children to [Country E in mid-2023]. The mother takes issue with this. I have allowed the mother to address the Court without affidavit material. The mother’s issues appear to be that she has concerns about the father, concerns about matters of family violence. I have dealt with those matters in these reasons and the Court does not share those concerns.
There is no complaint by the mother that the children should not necessarily have a holiday in [Country E]. It seems disappointing to the Court that when one party is able to give these children a break with a holiday such as a holiday to [Country E], but it happens to be a contested matter in the Court. I intend to permit the father to take the children to [Country E], and I will make orders accordingly. … I will make it […] just to give the father leeway one day each way, in case there is some particular problem with travel arrangements. …”
In the email sent by the mother on 15 March 2023, at 2.20am, she stated, inter alia:
“If all I have to do is find an expert to give their opinion on [Y’s] filled-out assessments from last July, and their feedback on the safety of [a medication] and how that’s what the first paed [sic] should have helped us with, consider it done. I’m the one with 20 years of [...] contacts, not you”.
I observe that, notwithstanding the passage of more than six months since then, the mother has not adduced (or, at least, I was not taken by her to) any such expert opinion.
She described the father as being “severely ungrateful for the 3.5 wonderful years I helped you to have with the kids after our separation. Now I realise that a FVIO back then could have eliminated you as the future cause of the most horrendous trauma of my life”.
She stated:
“I will only forgive and trust you again when I have sole parental responsibility … I’ll lodge appeal, after appeal, after appeal until I get this because you cannot be trusted” (emphasis in original).
This is what the mother did in relation to the Interim Accommodation Order and what the Department of Families, Fairness and Housing foreshadowed that she will continue to do. Whether or not that prediction eventuates in this Court remains to be seen.
She also stated: “court instead of mediation means no [Country E] so you better fight twice as hard for that ‘sole parental responsibility’” (emphasis in original). In the result, the father was required to “fight” (as she goaded him) in order to take the children to Country E for a holiday. I observe that the reasons recorded by the Senior Judicial Registrar for the mother’s opposition thereto on 12 April 2023 are absent this email sent less than a month earlier. Although I am not in a position, at this interlocutory stage, to make any findings, which will need to await trial, it is not inconceivable, from this statement and the absence of any accompanying reason, that the mother’s refusal was motivated by vindictiveness.
Child Impact Report – 31 August 2023
Insofar as the Child Impact Report is concerned, in Fowler & Northwood at [24], Austin J said:
Single experts are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute, though their expert opinion evidence is not necessarily decisive. Judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness (Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). No judge is bound to accept or reject the whole or any part of the evidence of a single expert (U v U [2002] HCA 36; (2002) 211 CLR 238 at 261). But by the same token, when ostensibly credible evidence is before the court, a judge is expected to heed it. Even though expert opinion evidence is normally untested in an interim hearing, the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed and against which they require protection (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]; Lim & Zong [2020] FamCAFC 20; (2020) FLC 93-939 at [32]–[33]).
The report writer reports that, in session, the mother was “focussed on [Y’s] alleged trauma history” and the mother’s “suspected diagnosis of Oppositional Defiance Disorder (ODD) for [Y]” (at paragraph 11). She states (at paragraph 12) that:
“[Y] reported that she would like to spend more time with her mother but wasn’t sure about going to her house, that it was the ‘people’s decision’ and because ‘mum was drugging us with her own pills’, which she then said was hard to explain, but she thought it was to help the children ‘calm down’. [Y] then stated that she didn’t think that her mother and father like each other at present, but that this might improve if [Ms Hoyt] ‘admitted she was wrong’ in prescribing the children with her own medication.
In relation to X, the report writer reports (at paragraph 14) that it was clear that he misses his mother greatly, with whom he said he loves spending time and wishes he could spend more time. However, she further reports (at paragraph 15) that he stated that-
“he thought it might be better for now if there was another person present during spend time arrangements, so there could be no confusion about anyone saying the wrong thing and ‘secrets’, which seemed to be referring to things [Ms Hoyt] had said to the children in the past, or because of problems with taking medication. [X] also seemed conflicted about how spend time might progress without there being problems, but that ultimately he would like to live equally with both parents”.
The report writer continues (at paragraph 16) that X –
“explained that he would like to see his mother three times per week, as before, but in a supervised context. [X] then identified a willingness to see [Ms Hoyt] in her own home, but with another person present, so there wouldn’t be any problems”.
In relation to Z, it was reported (at paragraph 17) that she loves each of her parents but –
“said she wasn’t sure if she was allowed at [Ms Hoyt’s] house and that maybe it was better if another person was there too if the children went there. [Z] expressed a wish that the children could have a ‘little play’ evenly at each parent’s house so the parents wouldn’t be missing them, or they missing the other parent”
The report writer opines (at paragraph 17) that this comment suggests that Z is holding responsibility about her parents’ feelings and emotional well-being, beyond her developmental capacity at this age.
The report writer reports (at paragraph 21):
“The medical needs and diagnoses of the children are at the centre of the dispute, and the parties remain in disagreement as to whether the children require specialist diagnoses and medication. [Mr Hoyt] reported in interview that since the children have been in his care, they have ceased all medication and are observed by him and reported by the school as doing well, with no identified concerns, educational or otherwise. [Ms Hoyt] maintained during interview that the children required specialist assessments and resisted answering direct questions about whether she had historically given her own medication to the children.”
Under the rubric of her child impact analysis, the report writer opines (at paragraphs 27 – 29):
… Considering the children’s reported experiences of their mother, it is likely this is a conflicting time for them in which they want to see and spend time with [Ms Hoyt], however their levels of trust in her as an adult who can keep them safe have been compromised.
The experience of worrying about safety in the care of their mother could potentially have negative impacts on the children’s wellbeing and development in the longer term, and their capacity to form trusting relationships in future. In order to heal, the children require that their experience be validated. They require the opportunity to process this ruptured relationship with a primary caregiver.
This is likely a difficult adjustment for the children and even though all three children are reportedly presenting as doing well, this does not mean they are not feeling a sense of loss for their prior relationship with [Ms Hoyt]. These are complex emotions to navigate for children, and it is possible that they may benefit from therapeutic intervention. This would provide the children with a safe person to unpack this outside of their family unit who is dedicated to them. …
Under the rubric of parental understandings of the children’s needs, the report writer reports (at paragraphs 31 – 32):
[Ms Hoyt] presented in interview as a loving mother who was genuinely concerned about the children’s wellbeing and the impact of their separation from her. Nevertheless [Ms Hoyt] appeared fixed in her narrative about the diagnoses and required medication for the children, such that she could not tolerate any alternate narrative or professional assessments that did not accord with her convictions. [Ms Hoyt] did not appear able to consider the children’s wellbeing outside of her concerns, thereby demonstrating a lack of preparedness to accept and consider professional diagnoses, or otherwise, that conflicted with her own position with regard to the children. This could indicate a potential unwillingness to comply with orders that do not accord with her own views.
[Mr Hoyt] presented as a loving, present father, with a clear understanding of his children’s dispositions, strengths and personalities. He has fostered contact with extended family on both sides. [Mr Hoyt] acknowledged that the children loved their mother and would love to spend more time with her. He stated, however, that due to the concerns, he could not envisage a safe way for spend time to be unsupervised, at present or in future.
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.
Even if the mother’s application were considered afresh, rather than in the context of the extant interim parenting orders made some six months ago, the mandate imposed by s 60CA of the Act upon the Court, in deciding whether to make a particular parenting order in relation to a child, is to regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that, in determining what is in the child’s best interests, the Court must consider the primary and additional considerations set out in subsection (2) and (3).
The primary considerations, which are specified in s 60CC(2), are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) requires the court to give greater weight to the second of those considerations. In the present case, it cannot be gainsaid that there is a benefit to the children of having a meaningful relationship with both the father and the mother. In Mazorski & Albright [2007] FamCA 520, Brown J considered the term “meaningful relationship” for the purposes of s 60CC(2)(a) and said at [26]:
“meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
However, that is qualified by, and must give way to, the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. In the present case, although I am not in a position to make findings as to contested facts in issue, I take into account, inter alia, the fact that, concerningly, the mother herself does not deny having administered unprescribed medication to one or more of the children. She merely seeks to justify, excuse and/or explain away having done so, but does not resile from what she apparently continues to believe to be the need to do so.
The additional considerations are specified in s 60CC(3). I have turned my mind to them. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said that a “judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue”. Similarly, in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 - 386, Mahoney JA said that it is not-
“necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…”.
Some of the considerations in s 60CC(3) are manifestly not relevant in the circumstances of this case and require no comment. Others are incapable of informed consideration at this interlocutory stage, where I am unable to make findings in relation to disputed facts. However, in these constrained circumstances, I am greatly assisted by the two reports and the Child Impact Report. That is not to say that, at trial, some of the matters therein may not be successfully challenged. However, that evidence is the best evidence at present; it is the most independent evidence and, in the case of the report, the only expert evidence.
In particular, I take into account, as best I can at this interlocutory stage:
· Pursuant to s 60CC(3)(a), the children, although aged only nine, seven and five years respectively, clearly wish to continue to spend time with the mother and that it be increased, albeit subject to ongoing supervision.
· Pursuant to s 60CC(3)(b), the children clearly love both of their parents.
· Pursuant to s 60CC(3)(d), the likely effect of any of the changes proposed by the mother on the children’s circumstances would likely be detrimental to them, especially on the evidence contained in the s 67ZW reports, whether it be the removal of the requirement for supervision or their return to her primary care.
· Pursuant to s 60CC(3)(f), at this stage, the court must have concerns about the capacity of the mother to provide for the needs of the children, especially in circumstances where she misguidedly believes that she can make expert diagnoses regarding them and administer unprescribed medications to them.
Further, in my view, the concerns expressed in the immediately preceding paragraph apply, mutatis mutandis, to the consideration required by s 60CC(3)(i), namely, the attitude demonstrated by the mother to the responsibilities of parenthood.
Outcome
For the reasons aforesaid, the mother’s Application in a Proceeding will be dismissed, save that, as proposed by the father and supported by the Independent Children’s Lawyer, consistent with the recommendation in the Child Impact Report, her time with the children, which will remain supervised, will be increased from two to four hours per fortnight.
Further, as proposed by the Independent Children’s Lawyer, again consistent with the recommendations in the Child Impact Report, there will be orders for counselling for the children and the mother to undertake an independent psychiatric assessment.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 12 October 2023
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