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 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 the fact sheet attached hereto 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.

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 Rocco & Rocco has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE

Strum J:

1. These are proceedings in relation to interim parenting orders for the child, X, born 2020, who is currently three years of age. The proceedings are listed for trial before me on 13 June 2023, over four days. Accordingly, they were listed before me today for case management, to ensure readiness for trial. For reasons which will become apparent, I express some tentative concern as to whether or not the trial will be able to proceed then, given what appears to be a further deterioration in the respondent mother’s mental health.

2. As things presently stand, pursuant to extant interim parenting orders, the child, lives with his father and spends time with the mother, supervised by the maternal grandmother and/or maternal grandfather in a public area/location in the Suburb D area, each alternate Saturday from 1:00 pm until 4:00 pm, as well as on other special occasions.

3. By reason of developments, of which the father and his lawyers and the Independent Children’s Lawyer have become aware in recent days and, indeed, in the past 24 hours, Senior Counsel for the applicant father has made an oral application for orders to be made ex parte suspending the mother’s time with the child. The application is supported by counsel for the Independent Children’s lawyer.

4. For the reasons that follow, I will grant that suspension of time, until further order, and I do so on the basis of two documents that have been tendered today.

5. The first exhibit, marked “A”, was tendered by counsel for the Independent Children’s Lawyer. It is a chain of emails passing between the maternal grandmother and the Independent Children’s Lawyer yesterday. The grandmother, with whom the mother lived until very recently, advised the Independent Children’s Lawyer of her concerns in relation not only to that child, but also his twin siblings by a subsequent relationship of the mother (“twins”), which led to an application being made in relation to the twins by the Department of Families, Fairness and Housing (“Department”) in the Children’s Court last week. An Interim Accommodation Order to a Suitable Person had previously been made by that Court in late 2022 in relation to the twins (the suitable persons being the maternal grandparents). An order was made yesterday whereby the order was varied so as to exclude the mother from living at her parents’ home with the twins, by reason of the deterioration in her mental health.

6. I take into account the matters set out in that email and note that, whilst the mother’s parents have been very supportive of her to date, the maternal grandmother raises matters of great concern, including in relation to the child in these proceedings.

7. The grandmother described the preceding two days (namely, 16–17 April) as being “very horrible” and expressed the belief that the mother would not attend at Court today. That has transpired to be the case. She continued by opining that, if she did attend, “she will not be in a rational mind set”. She described that mother as having been “quite ‘wobbly’ as the case [today] got closer”.

8. The grandmother asserted that the mother “knows the judge does not like her (as told by the lawyer she had in December)”. I do not know why the mother and/or her lawyer (if it be the case) hold that view. It is not a matter of liking or disliking her or her case. I have not had the chance to hear her evidence tested and to observe her in the course of same. I presently do not and cannot have any view of her. Insofar as the grandmother suggests that, at a hearing before me in December 2022, there was “a joke between [the father’s] lawyer and the judge … about how [the mother] would have to get wet if it rained” during the child’s time with her, there was no joke. The orders made that day provided for the child and the mother to spend time together, supervised by the maternal grandmother and/or maternal grandfather, “in a public area/location in the [Suburb D] area”, pending a place becoming available at E Contact Centre. I have been reminded by Senior Counsel for the father that what has been misconceived by the mother and/or the grandmother as a joke was, in fact, far from that. Rather, given that the orders I proposed to make (and made) that day provided for the mother and the child to spend time together from 10 a.m. until 12 noon on Christmas Day, when indoor public areas or locations might not be open, I inquired what was to happen if it rained that day. Senior Counsel for the father said, and I am in no way critical of her, words to the effect that, if they got wet, so be it. My primary concern was to ensure that the child was able to spend time with his mother on what was clearly an important day for them but without jeopardising the child’s best interests, given my concerns about the mother’s mental health. In any event, the mother was legally represented on that occasion and her lawyer did not see fit to make to take issue with, or make any application, in relation to that exchange.

9. The grandmother, in her email to the Independent Children’s Lawyer continued:

   Last Thursday night apparently [Ms Rocco] spoke with one of her team as she was distressed. They then rang the CATT Team asking them to review her on Friday as she was concerned she could not see [Ms Rocco] face to face and felt she was struggling.

   Then on Friday the CATT Team arrived and although they had concerns at first, later they said it was possibly a medication problem and provided a script to help her.

   She then received that day’s mail, with another affidavit from [Mr Rocco’s] lawyer - this time 50 pages long and she was beside herself, saying she could not do this anymore.

10. The grandmother described the previous day as having been “a very bad day with [Ms Rocco] weeping and feeling she couldn’t go on any more as she’d lose [X] and they’d take her boys” and said that she was very concerned for the mother. She stated that a worker from the Department attended at their home “and after many hours, she told us [Ms Rocco] was to come to the court the next day re strengthening supervision of the boys”, namely, the twins. She relevantly continued:

    Although both ourselves and [the mother’s mental health nurse] told them making her leave the support of her home and attending court the day before [X’s] [hearing] may very well push her over the edge, they needed to follow their procedures.

    This proved too much for [Ms Rocco] and did indeed cause a break from thinking rationally.

    She felt I just wanted the boys and would not talk/listen to me. I spent time again ringing DFFH, The CATT Team, in fact so many today, fearful she would do something irrational.

    Unfortunately [Ms Rocco] was not in the place to be helped anymore.

    Apparently, although the [Children’s] court tried to support her with offering services etc she refused and left the court angry. She apparently told the court she would not be doing anything more nor would she be seeing the boys anymore.

    In her absence, the court liaised with us and [Ms Rocco] is now not allowed to come back to our home etc.

    We will be caring for the boys 24/7 and we need to take that one step at a time to set this up, with DFFH’s help for a workable future.

    [Ms Rocco] did not return here after court.

    When [Ms F] (NDIS) managed to get her to answer the phone she was very dismissive of any help offered.

    [Ms F], being concerned for her safety, offered a hotel room etc but [Ms Rocco] told her it was not necessary - as everybody was better off without her.

    I have only received a text message saying we had what we wanted now and offensive comments.

    We are all concerned for her safety.

11. The second exhibit, marked “B”, is an email from the Child Protection Melbourne Family Law Liaison Officer to my associate, providing a short form report, pursuant to the information sharing processes between the Department and the Court. That document makes it clear that, last week, the Department received a new report outlining new concerns for the mother, namely, that the Community Assessment Treatment Team attended the maternal grandparents’ home that day, where the mother was observed the mother presenting as “jumpy, psycho-agitated, bizarre presentation, unable to answer questions, emotional and disorganised”.

12. The report states that there was a strong concern on the part of the Department that the mother had taken illicit substances, however this was not confirmed by way of drug testing. Concerns have previously been expressed in these proceedings in relation to the mother’s consumption of illicit drugs. The report continues:

    The mother was at home unattended with the […] twins. [Ms Rocco] advised that she takes a few glasses of [alcohol] every night to “settle” herself. Concerns were present for the mother’s deteriorating mental health. Concerns were raised for the safety and vulnerability of the children in the mother’s primary care.

13. In relation to the application made to the Children’s Court to vary the interim accommodation order in respect of the twins, the Department confirms that it sought to exclude the mother from the maternal grandparents’ home, where they care for them; have the mother’s contact with the twins fully supervised; and have the mother undergo a neuropsychological assessment and alcohol and drug testing. The Department advises that the Children’s Court ordered that the mother not live or have contact with the twins other than as ordered; the mother have contact with the twins twice per week, at times and places agreed between the Department and her, to be supervised by the Department or a person approved by it; the mother undergo hair follicle testing, with the results to be provided to the Department; and the mother be required to allow the twins to attend childcare daily.

14. The report states that the Department raised with the Children’s Court the issue of the mother not complying with a parenting assessment, however, the presiding magistrate advised that “he felt it was not purposeful [sic] to vary the interim accommodation order so as to make her engage with a neuropsychological assessment, a parenting assessment and/or alcohol and other drugs counselling, as the mother has demonstrated that she will not comply”.

15. The Department advises this Court, in the report, that it “cannot consider reunification of the [twins] to the mother’s primary care at this time, given her unwillingness to engage with the department or with the Children’s Court proceedings” and, further, that the present magistrate also voiced concerns about the mother’s behaviour at Court yesterday and advised the mother to source legal representation for further hearings. The matter is returnable in the Children’s Court in mid-2023 for mention.

16. Based on the very recent and concerning information contained in these exhibits, I am satisfied that it is appropriate to grant the father leave to make an oral application in a proceeding and for that oral application to proceed ex parte this day. That course is supported by the Independent Children’s Lawyer. Although I was advised by Senior Counsel for the father and by counsel for the Independent Children’s Lawyer, and it appears from the grandmother’s email, that the mother would not be attending today, my associates have endeavoured to contact the mother in open Court, on her mobile telephone number and she has not answered that call.

17. On the basis of the information contained in the exhibits and the submissions of Senior Counsel for the father and counsel for the Independent Children’s Lawyer, I am satisfied that it is appropriate to suspend the orders providing for the mother to spend time with the child.  I note that he is three years of age and that the twins are under one year of age.  There is no suggestion that the concerns about the mother in relation to the twins are any less applicable to this child.

18. The orders will be made ex parte.  However, the mother is aware of the hearing today and she is similarly aware of the hearing in the Children’s Court yesterday.  I was initially concerned as to whether or not I should suspend the mother’s time with the child until a defined date in the near future and require the father to file and serve a formal application to extend the suspension beyond that date, supported by affidavit material. Ordinarily, in the circumstances, that would be the appropriate way to proceed in ex parte proceedings. However, I am conscious of the fact that the father is a privately funded litigant in these proceedings and, it appears, is not a man of substantial financial means. I also take into account the fact that the maternal grandmother attributes, at least in part, the mother’s downward spiral to these proceedings. Accordingly, I am concerned that receipt of a further application and affidavit(s), and the need to respond thereto, may add to the mother’s psychological distress, especially in circumstances where she told her National Disability Insurance Scheme worker, after the hearing in the Children’s Court yesterday, that “everyone was better off without her”.

19. For these reasons, notwithstanding my concerns about making suspending the mother’s time with the child until further order, without a return date, I am prepared to do so. I note that the trial of these proceedings is listed in less than two months’ time. Further, r. 10.13(1)(a) provides that the Court may, at any time, vary or suspend an order if it was made in the absence of a party, as it the case here.

20. Senior Counsel for the father, at my request, has prepared a minute of orders and I will make orders in terms of that minute, which grants the father leave to make an oral application and provides for the suspension of the mother’s time with the child; an updated s 69ZW report to be prepared; and for leave to be granted to the father to file, for issuing, a subpoena addressed to Services Australia seeking documents evidencing matters relation to the medication prescribed to the mother, identifying the doctors issuing those prescriptions and specifying the dosage prescribed, as well as the date of each prescription and the date of any prescription being filled.

21. I will make a further order granting leave to the mother to apply on short notice, in writing, to discharge the order suspending her time, as well as leave to all parties to seek to mention the matter on short notice by email communication to my associates.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       28 April 2023