Lane & Callozzo (No 3)

[2022] FedCFamC2F 144

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lane & Callozzo (No 3) [2022] FedCFamC2F 144

File number:	MLC 9431 of 2014
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	11 February 2022
Catchwords:	FAMILY LAW – Interim parenting – inconsistent decisions of Magistrates Court and Federal Circuit and Family Court of Australia (Division 2) – section 68R.
Legislation:	Family Law Act 1975 (Cth), s.68R
Division:	Division 2 Family Law
Number of paragraphs:	18
Date of hearing:	11 February 2022
Place:	Melbourne
Solicitor for the Applicant:	Perisic Lawyers
The Respondent:	Appeared In Person
Solicitor for the Independent Children's Lawyer:	Perry Weston Lawyers

ORDERS

MLC 9431 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LANE

Applicant

AND:

MS CALLOZZO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	11 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Until further order the orders of the 28 May 2018 be and are reinstated and of full force and effect.

2.Pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth) this order prevails over any family violence order to the extent of any inconsistency AND FURTHER the purpose of these Orders is to promote the best interests of the child X born in 2012 ('the child') and to promote the child having a meaningful relationship with both parents.

3.The Applicant Father and Respondent Mother do all acts and things to cause and ensure that each of them are available for psychiatric examination with Dr K on or about 23 March 2022 and to comply with all directions of Dr K for the preparation of a psychiatric report of each of them to be filed on affidavit in these proceedings. 

4.Each party is at liberty to provide any material filed in this proceeding to Dr K and Dr K is at liberty to inspect any subpoena material in this matter for the purposes of the report.

5.The costs of the psychiatric report be at the expense of the Father in the first instance and subject to any order at final hearing.

6.The associate to Judge O'Shannessy provide these orders and reasons for judgment (when available) to the Melbourne Magistrates Court with a request that they be brought to the attention of any Magistrate dealing with the matter of Callozzo & Lane. 

BY CONSENT:

7.The changeover location for changeovers of the child between the parents be changed from Suburb H Police Station to Suburb H Train Station.  

BY THE COURT:

Section 102NA:

8.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Mother, Ms Callozzo under the cross-examination scheme.

9.Pursuant to order 8 hereof, the Respondent Mother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.

Final Hearing:

10.The final hearing listed on 9 March 2022 (for 3 days) be vacated.

11.All extant applications be adjourned to 1 June 2022 at 10.00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit and Family Court of Australia at Melbourne.

12.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

13.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

14.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 28 days prior to the Final Hearing.

15.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 21 days prior to the Final Hearing.

16.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 14 days prior to the Final Hearing.

17.Each of the parties be at liberty to file a short affidavit in reply by no later than 14 days prior to Final Hearing.

18.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

19.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:

(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;

(b)A brief chronology of relevant events;

(c)A precise minute of the orders the party is seeking; and

(d)A list of authorities to be relied upon, if any.

20.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own affidavit.

21.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.

22.No later than 3 days prior to trial, the parties and any witnesses requried for cross-examination conduct a test of the Microsoft Teams software ensuring each party/witness has appropriate microphone and video facilities.

AND THE COURT NOTES THAT:

A.In the usual rotation of alternate weekends pursuant to the orders of 28 May 2018, the child will spend the weekend of Friday 18 February 2022 with the Applicant Father. 

B.It is expected that Dr K will require 28 days to prepare the psychiatric report.

C.The Applicant Father will be required to borrow money to fund the expense of the psychiatric report.

D.The relevant application referred to in order 9 hereof is available to the parties at to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

G.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Lane & Callozzo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) and delivered ex tempore on 11 February 2022.  The matter concerns the child X who is now aged 9 (‘the child’).  The applicant father, Mr Lane (‘the Father’) is aged 50 and the respondent mother, Ms Callozzo (‘the Mother’) is aged 46.  The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).  The question to be determined is whether orders inconsistent with the second orders of the Melbourne Magistrates Court suspending orders of this court should be made.  The transcript of my ex tempore reasons has been settled for clarity and grammar and this introductory paragraph inserted. 

2. The matter comes before me for the third or fourth time over the last few months in circumstances where I released a family report dated 2 February 2022 to the ICL on Friday 4 February 2022 and then to the parents on Tuesday 8 February 2022.  That report, when I read it as I must to release it, recommended at paragraph 186 that the Father and the Mother in these proceedings, be psychiatrically assessed prior to final hearing.  The matter was listed for final hearing on 9 March 2022 for a three-day hearing.  I listed the matter urgently to deal with that recommendation.

3. On 22 September 2021, I dealt with the matter in regard to a dispute between the parties in regard to an order as to whether or not an order should be made relating to where the child would live in the event that the Mother was taken into immigration detention, pending deportation.  I made orders on 23 September 2021 and reserved my reasons.  I have this morning delivered those reasons and provided them to the parties.  These reasons refer to and adopt the statements of background and circumstances of the parties in that judgment.

4. Further, I had previously dealt with the matter on 19 January 2022 and on that day I delivered a short ex tempore judgment and I also ordered that the settled reasons of that judgment, when available, be provided to the Magistrates Court, with a request that they be placed on the file. Before I settled those reasons, the matter returned to the Magistrates Court on 4 February 2022 as the proceedings made on 7 January 2022 were adjourned to that date. Hence I placed the parties and the Magistrates Court in the position of dealing with a section 68R application for a second time without the information of my orders and reasons of 19 January 2022. I apologise to the parties and the Magistrates Court for that delay in settling the reasons and causing delay in the order and reasons being providing to the Magistrates Court. I am not aware of what inquiries the presiding Magistrate made as to what information this court had when dealing with the matter. The additional information of the orders and reasons of 19 January 2022 may have been taken into account when the second section 68R application (within 4 weeks) in the Magistrates Court was dealt with.

5. The 7 January 2022 proceedings involved the making of a final order in regard to section 68R of the Act, and that order of 7 January 2022, being a final order, suspended the time until 4 February 2022. Section 68R(4) of the Act, referring to the Magistrates Court power to vary a family law court order states as follows. Section 68R(4) of the Act provides:

   (4)The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

6. In other words, a section 68R order can only be lawfully made by the Magistrates Court where it is making a final order. I have before me today sworn evidence from the Father that he had no notice of the proceedings on 7 January 2022 and did not attend court. Hence the proceedings on 7 January 2022 were what is known as ex parte and made in the absence of one of the parties.  The evidence of the Father shows that in December 2021 he did receive written notice of pending return of interim intervention order proceedings on 4 February 2022, but he has given explicit and unequivocal sworn viva voce evidence today that he received no notice at all in regard to the 7 January 2022 proceedings.

7. That evidence may be challenged on the final hearing of this matter but in this point in time, that evidence is compelling for the purposes of this hearing only.  Hence we have what is a final order made ex parte, that is without notice, and in the absence of a party.  For the reasons I set out in my judgment on 19 January 2022, it was in the best interests of the child that the time arrangements to spend with his father as ordered by the court in the final orders previously made should be put back in place again.  These reasons rely upon and refer to those reasons.

8. I will order that these orders and reasons (as settled) be provided to the Magistrates Court when available.  I had previously ordered on 19 January 2022 that the section 67Z response from Child Protection as well as the order of 19 January 2022 be placed on the Magistrates Court file. 

9. I have been assisted today by the duty lawyer who has come on board at very short notice to assist the Mother.  The Mother was placed in a very difficult position today.  The matter had been put on for mention before me.  Initially she was represented by her solicitor of some time in the proceedings, Mr Rothschild.  I indicated to Mr Rothschild that I had a number of matters to deal with. 

10. The Father's solicitor made an oral application before me to make a further order inconsistent with the order of 4 February 2022 and for me to hear that application there and then.  Mr Rothschild indicated he would only be able to deal with the matter provided I could guarantee that it was finished by 12 o'clock, and I did so.  The matter was stood down a number of times to give him further time to confer with his client.  He ultimately came back and told me that he sought to be released as the solicitor on the record for the Mother, and further, he agreed with my proposition that were he to explain or tell me why, it would be necessary for him to go behind legal professional privilege.

11. I proceeded on the basis that as an officer of the court he would have what was to him a good and proper reason for seeking to withdraw.  I did not permit any parties to ask any questions of Mr Rothschild as to why he was taking the very unusual action that he was.  However, I was not prepared to in any way compel him or the Mother to waive legal professional privilege or enter into waiving any small part of it. 

12. I now have the additional information of the family report.  I refer particularly to paragraphs 63 and 64 that the issue and allegations of family violence, and I acknowledge the seriousness of that.  I also refer to paragraphs 153 and 157.  I refer to paragraphs 170 through to 175 of that report, and I refer to paragraphs 178 through to 180. 

    63.Ms Callozzo notes in her Notice of Child Abuse Family Violence or Risk that X is at risk in Mr Lane’s care due to his anger issues and diagnosis of depression, that Mr Lane mixes Valium with alcohol, that he has attempted to self-harm, that he has perpetrated domestic family violence (DFV) on her and X, has threatened her with a gun, that she had concerns for the DFV between Mr Lane and Ms L, that Ms L stops X from contacting her and that on 21 April 2021 she attended upon a medical practitioner with X to seek medical attention for “X's bruises,” which he sustained while spending time with Mr Lane, noting that X disclosed that Mr Lane had hit him after “he put something in the wrong place whilst building a chicken coop”.

    64.On 29 April 2021 - Senior Registrar Hoult made orders, in short, that the document produced by the Department for Families, Fairness and Housing in response to the s67Z request pursuant to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed in these proceedings by Ms Callozzo on 29 April 2021 is released to the parties for inspection only and that the parties and the parties’ legal representatives are restrained from providing a copy of the document to any other person or disclosing its contents to any other person or entity without an order of the Court.

    …

    153.X demonstrated a close and secure attachment with Mr Lane and Ms L.

    …

    157.X demonstrated a secure and close attachment with his mother on the day of the informal observation.

    …

    170.Domestic Family Violence (DFV) is a serious social issue impacting many families in Australia and at no time can be justified. This violence has significant effects on the lives of many children and young people. In working with domestic violence situations, we always keep the victim and children’s safety at the forefront of case planning, decision-making, and any form of intervention, however, Ms Callozzo has made several serious allegations over a period of years in this matter regarding DFV and harm to X, with the Family Consultant being unable to substantiate any of the allegations in this matter in the current material before the court.

    171.This writer does note that this writer was not in possession of the latest VIC Police material or the initial Family Report of 2015 in this matter. This is not to say that Ms Callozzo does not perceive Mr Lane as being a threat to her or X, especially taking onto consideration the current immigration matters and the risk of her being deported from Australia.

    172.X appears to have a positive relationship with both Ms Callozzo, Mr Lane, and Ms L, which this writer believes is a protective factor for him. X was conscious of not upsetting his parents which he demonstrated in his behaviour when this writer reminded him in his interview at his father’s residence about what he had disclosed in his interview at his mother’s residence regarding his father hurting him, resulting in X’s immediate change in demeanour. This is not uncommon for children who are caught up in their parent’s conflict, especially where they are exposed to their parent’s adversarial positions against each other as X has been in this matter.

    173.Regrettably, this can result in the child experiencing loyalty conflicts and shifting allegiances, often resulting in a child telling each parent what they think that parent wants to hear, which this writer believes has been and is still occurring in this matter, taking into consideration X’s responses in his interviews at both residences. This is a difficult position for any child to be placed in let alone a child with X’s diagnostic background, as it can lead to X aligning himself with one parent in order to remove himself from the conflict as he grows older and gains greater cognitive capacity, which may not be in X’s best interests especially if that parent does not have his best interests at the forefront of their intentions.

    174.X’s diagnostic background, in this writer’s professional opinion, certainly reduces his ability to understand the long-term consequences of his wishes and his ability to be unduly influenced in these views. His interviews with the Child Protection and with this writer undoubtedly point to a young child who is caught in the middle of an adult dispute, wanting only to please both his parents.

    175.X is a child who needs stability and structure in his daily living and contact arrangements and while he has demonstrated a close and secure if not overly dependent relationship with Ms Callozzo, he is still able to with therapeutic assistance at this stage to make changes in his daily living.

1. I have been told that the information that the Magistrate had to deal with the matter on 4 February 2022 was the same information that was before the magistrate on 7 January 2022, and the same information, or at least, no further information than what was or evidence that was before me on 19 January 2022. 

2. I do take into account that, had I actually settled the reasons of 19 January 2022 and settled them to the Magistrates Court, that the Magistrate may have dealt with the matter differently.  The further matter that I take into account is the Father’s evidence today of the significant efforts he went to, to attend court electronically as he had been advised he would be able to.  There appears to have been some glitch between the Magistrates Court and the Father’s email systems.  I do not make any judgment as to whether the fault is the Father’s system, or the Father’s operation of it or a glitch with the Court but he never got the link.  He gave evidence this day that he made telephone communications to chase it up on a number of occasions, and eventually made telephone contact at a time when he was told the matter had been finalised. 

3. He further said he asked for a copy of the link, which it was thought that he had been sent, and he has, at this moment, still has not been sent that link for evidence of it.  I do not know whether the Court has inadvertently recorded an incorrect email for the Father (as can happen), or whether the Father’s system somehow prevents that email coming through.  But for today's purposes, and today's purposes only, I am satisfied that he attempted to participate in the proceedings on 4 February 2022, and was unable to.  One matter that I have found in this day of COVID-19 and email communications, when mobile phones are ubiquitous, that the traditional system of having a matter called formally outside the Court room, or called formally outside the virtual Court room is no longer appropriate. 

4. In the days of ubiquitous mobile phones, reliance upon email, and less than 100 per cent reliability of email, in my view, before a matter proceeds ex parte or in the absence of a party where it is a serious matter, as a courtesy to the absent party and to ensure just administration of a hearing, a mobile phone call could be made to that person's mobile phone.  I would commend that practice to whoever may read these reasons, so that these sorts of disasters can be minimised in the future.  But that is not an order; that is only a note of what could happen.  If we were dealing with something less important, like buying or selling a motor car, or a pound of apples, and there was an arrangement that someone was meant to be in a certain place at a particular time and they did not turn up, the person selling the motor car or the apples would pick up the mobile phone and ring the person who was not there. 

5. However, that process is not frequently followed by the Courts, but the process may need to be looked at in this day and age of reliance upon electronic communication as if it is as reliable as looking at and hearing a person standing in a Court room.  It simply is not as reliable and procedures and practices should be adapted to follow the reality of modern communications and the inherent less than 100 per cent reliability of such matters.  There will not be a person in this virtual court room who has sent an email only to learn it never went to where it was meant to, or had been told they had been sent an email by someone, and they never got it.  Nonetheless, that is the circumstance that comes before me. 

6. In all those circumstances, I am taking into account Part VII of the Act, all of the evidence and taking into account the further evidence of the family report. I am satisfied that it is in the child’s best interests that the final orders that were made by consent, previously, and that have been put back in place by Senior Judicial Registrar Hoult in April 2021 and by myself on 19 January 2022, should be put back in place, again. They are the detailed reasons that I am making an order inconsistent with a family violence order. They are shorter than would be ideal in the circumstances of the pressure of time on the Court, as it is now six minutes to 4, and we still have a number of further matters to deal with.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 February 2022