Rocco & Rocco - [2023] FedCFamC1F 319

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rocco & Rocco [2023] FedCFamC1F 319

File number(s): MLC 4618 of 2021

Judgment of: STRUM J

Date of judgment: 19 April 2023

Catchwords: FAMILY LAW – CHILDREN – Order made ex parte – Short form report provided by Department of Families Fairness and Housing regarding recent developments relating to the protection of the mother’s children not subject to these proceedings – Where the father asserts that these developments also affect the safety of the child subject to these proceedings – Time with respondent mother suspended.

Division: Division 1 First Instance

Number of paragraphs: 21

Date of hearing: 19 April 2023

Place: Melbourne

Counsel for the Applicant: Ms Mallett SC

Solicitor for the Applicant: Coulter Legal

The Respondent: No appearance by or on behalf of the Respondent

Counsel for the Independent Children’s Lawyer: Mr Ambrose

Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid
ORDERS

MLC 4618 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ROCCO

Applicant

AND:
MS ROCCO

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

STRUM J

DATE OF ORDER:

19 APRIL 2023

THE COURT ORDERS THAT:
1.The father have leave to make an oral application and to proceed ex parte this day.
2.Until further order, Order 4(b) (being an order for the mother to spend supervised time with the child, X born 2020) of the Orders dated 13 December 2022 (as amended by Orders made 16 December 2022) be suspended until further order.
3.Pursuant to section 69ZW of the Family Law Act 1975 (Cth) the Department of Families Fairness and Housing provide a report including information relevant to their involvement with any children of the mother namely: X born 2020; B and C born 2022.
4.Leave be granted to the father to file for issuing a subpoena addressed to Services Australia seeking documents evidencing:
(a)a full list of medication prescribed to the mother;
(b)the names of any doctor issuing each prescription;
(c)the dosage of each medication prescribed;
(d)the date of each prescription;
(e)the date of any prescription being filled.

5.The mother have liberty to apply to list the matter for mention before the Honourable Justice Strum on short notice upon her filing an application and affidavit setting out why she failed to attend court this day and why these orders are not in the child’s best interests.
6.All parties have leave to mention the matter on short notice upon email communication to the Chambers of Justice Strum.

AND THE COURT NOTES THAT:
A.The mother failed to attend Court this day.
B.The Court attempted to contact the mother’s mobile this day at approximately 1:03 PM in open court, however the call went unanswered.
C.These orders are made with the consent of the Applicant father and the Independent Children’s Lawyer.
D.His Honour Justice Strum provided brief ex tempore reasons in open court this day which will be transcribed and settled and provided to all parties.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 319
Decision Date

CaseChat Overview and Summary

In the matter of Rocco v Rocco, the Federal Circuit and Family Court of Australia (Division 1) presided over by Justice Strum, heard an application made by Mr Rocco, the father, to suspend interim parenting orders that allowed his three-year-old son, X, to spend supervised time with his mother, Ms Rocco. The application was supported by the Independent Children's Lawyer. The primary legal issue before the court was whether the recent developments concerning the mother's mental health and well-being warranted the suspension of her time with the child. The court considered the recent events indicating a significant decline in the mother's mental health, as evidenced by two exhibits: a chain of emails between the maternal grandmother and the Independent Children's Lawyer, and a short form report from the Department of Families, Fairness and Housing.

Justice Strum was satisfied that the mother's recent behaviour and mental health issues, as well as her absence from court, justified the suspension of her time with the child. The court was particularly concerned about the mother's potential inability to care for the child, given the similar concerns raised in relation to her twin children. The court granted the father's application to proceed ex parte and suspended the mother's time with the child until further order. The court also made orders for an updated report from the Department of Families, Fairness and Housing, and granted leave to the father to subpoena documents evidencing the mother's medication prescriptions. Furthermore, the court allowed the mother to apply to discharge the suspension order and permitted all parties to mention the matter on short notice.

The court's decision to suspend the mother's time with the child was based on the recent developments in her mental health and the potential risk to the child's safety and well-being. The court also took into consideration the financial constraints faced by the father and the possible impact of further proceedings on the mother's mental health. The orders made in this case aimed to protect the child's best interests while also providing avenues for the mother to potentially discharge the suspension order and for all parties to seek further mention of the matter if necessary.

Orders