Hoyt & Hoyt (No 3)
[2024] FedCFamC1F 384
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hoyt & Hoyt (No 3) [2024] FedCFamC1F 384
File number(s): MLC 2823 of 2023 Judgment of: STRUM J Date of judgment: 24 May 2024 Catchwords: FAMILY LAW—JURISDICTION— Where the independent children’s lawyer seeks various restraining injunctions against the mother—Where the extensive correspondence sent by the mother to the independent children’s lawyer has been insulting and harassing—Where the mother agrees that she be restrained from contacting the Independent Children’s Lawyer and counsel instructed by her—Where the court may grant an injunction interlocutory order in any case in which it appears to be just or convenient to do so—Injunctions made Legislation: Family Law Act1975 (Cth) s114(3)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 24 May 2024 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondent Litigant in person (did not appear) Counsel for the Independent Children’s Lawyer Ms Agresta of counsel Solicitors for the Independent Children’s Lawyer Victoria Legal Aid ORDERS
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:
24 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 114(3) of the Family Law Act 1975, the Respondent Mother be restrained from:
(a)Contacting the Independent Children’s Lawyer, except in writing:
(i)For the purpose of serving sealed Court documents;
(ii)In reply to an email from the Independent Children’s Lawyer, that requests a response;
(iii)For all other matters, no more than one email per week, on Wednesdays between 10AM and 10.30AM, via designated email addresses;
(b)Contacting Counsel briefed for the Independent Children’s Lawyer, except where Counsel is briefed for a forthcoming hearing, save that such contact only occur within two days prior to and during that listed hearing;
(c)Contacting any employee of Victoria Legal Aid, via work or personal contact methods, except as outlined above or by email to Grants and Quality Assurance of Victoria Legal Aid, for the purpose of arranging a grant of legal assistance under the Cross Examination Scheme; and
(d)Attending at any Victoria Legal Aid office.
2.The Respondent Mother be restrained from:
(a)Causing to issue any subpoena in relation to Ms K; and
(b)Causing to issue any other subpoena, save and except for when she has previously obtained written permission from a Judicial Registrar or the Honourable Justice Strum.
3.The subpoena material produced by L School and Dr M, pursuant to subpoenas issued on 23 April 2024, be released to the parties to inspect and to legal representatives and the Independent Children’s Lawyer to inspect and photocopy.
4.The Independent Children’s Lawyer have leave to provide Court Child Expert Mr N and Dr O with the material contained in the tender bundle submitted prior to this Hearing, together with copies of all subpoena material released in these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J
By Application in a Proceeding filed 9 May 2024, the Independent Children’s Lawyer seeks various restraining injunctions against the mother. That application is supported by an affidavit of the Independent Children’s Lawyer, similarly filed on 9 May 2024, which I have read, save for the annexures thereto, which were not sought or required to be tendered in the circumstances.
On 16 May 2024, the mother filed a Response to an Application in a Proceeding, in which she agreed to each and every order sought by the Independent Children’s Lawyer.
The mother is self-represented, and has elected not to appear today. She sent an email to my chambers at 1.10 pm today, which relevantly stated as follows:
Unfortunately, it won't be possible for me to attend the interim hearing in person. I’m still experiencing fatigue issues every morning, and I will most likely cause another delay by arriving late, as was the case in February. I am notifying his Honour and parties that I will be absent tomorrow, and I understand orders will be made in my absence. I have taken this into consideration, yet there is no other option for me at this point.
No evidence was adduced, or at least, referred to in relation to the mother’s alleged fatigue issues. At 2.06 pm yesterday, my associate responded to the mother, referring to her email and her advice that she would not be attending today, and relevantly stating:
If you seek leave to appear via electronic communication for the purpose of the hearing, please provide an adequate medical certificate and his Honour will consider your request for leave.
There was no response to that email, and certainly no medical certificate was provided. Out of an over-abundance of caution, I had the mother called outside court today; there was no response to the call, and therefore, the matter proceeded undefended by her.
On 20 May, which was Monday of this week, the mother filed an amended Response. In that amended Response, she qualified her agreement with the orders sought by the Independent Children’s Lawyer so as to exclude such orders being made insofar as Ms K is concerned.
Ms K is referred to in the affidavit of the Independent Children’s Lawyer and, from that affidavit, I understand that Ms K is a lawyer in the Family Law team of Victoria Legal Aid’s Melbourne office. At paragraph 7 of the Independent Children’s Lawyer's affidavit, she deposes that Ms K was previously employed by Q Lawyers, and had limited dealings with the mother in the course of that employment in 2022. Ms K ceased employment at Q Lawyers in mid-2022, and then worked for a time as an associate in this Court.
Ms K commenced employment with Victoria Legal Aid in late 2022. As to why the mother might perceive a need to contact Ms K, the Independent Children’s Lawyer, at the paragraph 10 of her affidavit, deposes that:
[…] The mother emailed [Ms K], referencing an alleged consultation in […] 2022 via [Q Lawyers] and attaching material the mother said she provided to [Ms K] during that consultation.
The Independent Children’s Lawyer continues:
The respondent mother indicated that she would be seeking leave to issue a subpoena to [Ms K] for her to give evidence at the upcoming final hearing in this matter.
Accordingly, it would appear that the mother believes that Ms K has had an involvement in this case that does not accord with the recollection of Ms K, as reported by her to the Independent Children’s Lawyer, both of whom are in the employ Victoria Legal Aid. However, insofar as the mother, by her amended Response, sought to exclude Ms K from the restraints against her, as sought by the Independent Children’s Lawyer, that has now been overtaken by events.
On Wednesday of this week, 22 May 2024, at 11.18 am, the Independent Children’s Lawyer forwarded to the mother a minute of orders sought under cover of email. Those orders go beyond the scope of the Independent Children’s Lawyer’s Application in a Proceeding. Later that day, at 10.01 pm, the mother responded by forwarding to the Independent Children’s Lawyer a minute of orders sought similarly under cover of email. The minutes of the Independent Children’s Lawyer and the mother and the exchange of emails attaching same have been marked exhibits ICL1, ICL2 and ICL3 respectively.
Paragraphs 1, 2, 3 and 4 of the mother’s minute are identical in their terms to the orders sought by the Independent Children’s Lawyer, and no longer contain a proposed carve-out with regard to Ms K, as previously sought by her. The mother seeks further interim orders inter alia for “sole parental responsibility” (notwithstanding the amendments to Part VII of the Family Law Act1975 (Cth) that commenced operation on 6 May 2024) and that the children live with her. Those issues are not before the Court today, and she has filed no affidavit in support thereof.
In the circumstances, I am satisfied that there is no prejudice to the mother by the grant of leave to the Independent Children’s Lawyer to expand the relief sought by her, because she seeks identical orders. I am satisfied that, in the circumstances, the orders could be made by consent as between the Independent Children’s Lawyer, the mother, and the father. He appears today unrepresented and has advised the Court that he supports and consents to the Application in a Proceeding and the orders now sought by the Independent Children’s Lawyer and consents to orders being made in terms of the minute of orders. Albeit that he is a party to the proceedings, the orders sought by the Independent Children’s Lawyer and to which the mother consents, do not affect him, at least directly.
Insofar as the orders are sought pursuant to s 114(3) of the Family Law Act 1975 (Cth) (Act), that section provides:
A court exercising jurisdiction under this Act in proceedings, other than proceedings to which s (1) applies, may grant an injunction by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditional or upon such terms and conditions as the court considers appropriate.
This Court is clearly exercising jurisdiction under the Act, and it is doing so in proceedings other than proceedings to which sub-s (1) applies. I am satisfied, on the evidence of the Independent Children’s Lawyer, contained in her affidavit, that it is just and convenient, as required by s 114(3), to grant the injunctions sought by her. Alternatively, if it were necessary, s 44(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that:
The Federal Circuit and Family Court of Australia (Division 1) has power, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court considers appropriate.
Again, I clearly have jurisdiction the parenting proceedings between the father, the mother, and the Independent Children’s Lawyer and therefore power to make the orders sought by the Independent Children’s Lawyer.
I am satisfied that it is appropriate to make the orders sought. Whilst the relief is sought under sub-s 114(3) of the Act, and I am satisfied that I do have jurisdiction and power to make that order and I shall make the order, I merely observe that the order could similarly have been sought and, in my view, granted under s 44 of the FCFCOA Act.
In summary, the Independent Children’s Lawyer seeks, and the mother agrees, that she be restrained from contacting the Independent Children’s Lawyer, counsel briefed by the Independent Children’s Lawyer, and any employee of Victoria Legal Aid. Further, the Independent Children’s Lawyer seeks, and the mother agrees, that she be restrained from attending at any Victoria Legal Aid office and from causing any subpoenas to issue to Ms K or otherwise to issue subpoenas without leave.
I am so satisfied upon the unchallenged evidence of the Independent Children’s Lawyer before me today, in relation to the mother’s contact to date with her and contact with counsel briefed by her, as well as employees of Victoria Legal Aid. In particular, at paragraph 3 of her affidavit, the Independent Children’s Lawyer refers to and gives examples of extensive correspondence sent by the mother to the Independent Children’s Lawyer, which the Independent Children’s Lawyer describes as “insulting” and “harassing”. Having read the examples in subparagraphs (a) -(h) of paragraph 3 of the Independent Children's Lawyer’s affidavit, I agree that the extensive correspondence sent by the mother to the Independent Children's Lawyer has been insulting and harassing.
At paragraph 6, the Independent Children’s Lawyer addressed the mother’s contact with Ms K and the mother’s indication, this year, that she wished to cause a subpoena to be issued to Ms K to give evidence at trial. Given that the mother is a litigant in person, it may escape her that, if she seeks to adduce oral evidence from Ms K upon subpoena, Ms K will be her witness, and unless and until she is able to have the witness declared a hostile witness, she will not be able to adduce anything other than by way of evidence-in-chief, by way of non-leading questions to the witness.
The Independent Children’s Lawyer also refers to correspondence the mother has sent to Ms K's manager at Victoria Legal Aid which, on its face, suggests that the mother has searched for personal information about Ms R, who is Ms K's manager. Examples are set out in her affidavit. At paragraph 16, the Independent Children’s Lawyer refers to an email sent by the mother to the father’s former solicitor, which was copied to Ms K, which indicates that the mother has attempted to locate personal information about the Independent Children’s Lawyer. At paragraph 19, in a series of six sub-paragraphs, the Independent Children's Lawyer refers to the mother also having sent emails to counsel briefed by the Independent Children’s Lawyer for previous hearings, after the hearings had concluded, and including after counsel and/or the Independent Children’s Lawyer requested that she refrain from so doing.
Counsel for the Independent Children’s Lawyer submitted that the Independent Children’s Lawyer should not be considered as being “thin-skinned” for seeking the restraining orders she does. On the unchallenged evidence, I am not of that view. I am satisfied, on the unchallenged evidence, that it just and convenient to make the injunctions.
In the circumstances, orders will be made in terms of the minute of orders sought by the Independent Children’s Lawyer and marked ICL1. Those orders will be engrossed in chambers and made available to the parties as soon as possible.
As I have indicated earlier in these reasons for judgement, it is clear that the orders sought by the Independent Children’s Lawyer, in the terms of her minute of orders, accord entirely with the orders sought by the mother, save for the additional parenting orders the mother seeks, which are not properly before the Court today. Strictly, the orders could be made by consent; however, in circumstances where the mother is not present at Court today, I have delivered some brief reasons for judgment, lest the mother or another judge or judges of this Court should ever wish to understand why it is that I have seen fit to make the orders. Accordingly, the orders will be made as orders of the Court, albeit that there is no disagreement in relation thereto.
I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 6 June 2024
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