Rocco & Rocco (No 2) - [2023] FedCFamC1F 590

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rocco & Rocco (No 2) [2023] FedCFamC1F 590

File number(s): MLC 4618 of 2021

Judgment of: STRUM J

Date of judgment: 14 June 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – LITIGATION GUARDIAN – Whether the respondent mother is in need of a litigation guardian – Where the mother’s counsel and counsel for the Independent Children’s Lawyer are of the view the requirement in r 3.12(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is met as the mother is not capable of giving adequate instruction for the conduct of the proceeding – Where the applicant father supports the appointment of a litigation guardian – Where there is no updated medical evidence as the mother has refused to engage with the single expert psychiatrist – Where evidence from the Department of Family Fairness and Housing indicates the mother is experiencing severe difficulties with her mental health and alcohol and illicit substance abuse – Litigation guardian appointed.

Legislation:
Children, Youth and Families Act 2005 (Vic) ss 162(e), (f)

Family Law Act 1975 (Cth) s 102NA

Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12(1), 3.13(1), 3.15(2)

Cases cited:
Rocco & Rocco [2023] FedCFamC1F 319

L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114

Division: Division 1 First Instance

Number of paragraphs: 59

Date of hearing: 14 June 2023

Place: Melbourne

Counsel for the Applicant: Mr Arnold

Solicitor for the Applicant: Coulter Legal

Counsel for the Respondent: Mr Allen

Solicitor for the Respondent: Pentana Stanton Lawyers

Counsel for the Independent Children’s Lawyer: Ms Bonney

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:

14 JUNE 2023

THE COURT ORDERS THAT:
1.Pursuant to Rule 3.15 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021, Ms Gibbs of O Lawyers be appointed as Litigation Guardian (‘the Litigation Guardian’) for the Respondent, Ms Rocco.
2.Within seven (7) days of the date of these Orders, the litigation guardian file an Affidavit setting out the necessary matters pursuant to Rule 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules.
3.The Independent Children’s Lawyer, within seven (7) days of these Orders, provide to the Litigation Guardian, the Department of Families, Fairness and Housing’s section 69 ZW reports dated 5 June and 6 June 2023 respectively, provided to the Court in these proceedings.
4.Otherwise all extant applications be adjourned for Mention on 28 July 2023 at 9.30 am.

AND THE COURT NOTES THAT:
A.Counsel for the Independent Children’s Lawyer has informed the Court that Ms Gibbs is ready, willing and able to act as the litigation guardian for the respondent.
B.The Litigation Guardian be at…

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 590
Decision Date

CaseChat Overview and Summary

In Rocco & Rocco (No 2), the Federal Circuit and Family Court of Australia dealt with an application for parenting orders concerning the child X, born in 2020. The father, Mr Rocco, instituted the proceedings in April 2021 after the parents' separation, and the case has proceeded alongside the child's short life. The primary issue in this case is the mother's psychological and/or psychiatric health and her consumption of prescription drugs and alcohol to excess, as well as illicit drugs. The court had to decide whether the mother required a litigation guardian for the proceedings due to her inability to give adequate instruction for the conduct of the proceeding.

The court examined two reports from Dr G, the jointly appointed single psychiatric expert, who had assessed both parents. Dr G diagnosed the mother as having Autistic Spectrum Disorder, a personality disorder, and Social and Generalised Anxiety Disorder. He also expressed concerns about her use of a cocktail of psychotropic medications and her dependency on certain medications. In his second report, Dr G was unable to complete a further assessment of the mother due to her refusal to engage with the process.

The court considered the submissions of the mother's counsel, who stated that, in their professional opinion, the mother was not capable of giving adequate instruction for the conduct of the proceeding. This was supported by the Independent Children's Lawyer and the father's counsel. The court also took into account the evidence from the Department of Families, Fairness and Housing, which indicated that the mother was experiencing severe difficulties with her mental health, alcohol, and illicit substance abuse.

Based on the evidence presented, the court concluded that the mother met at least the second limb of r 3.12(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which requires the appointment of a litigation guardian if a person is not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding. As a result, the court ordered that Ms Gibbs of O Lawyers be appointed as the Litigation Guardian for the respondent, Ms Rocco.

The court also ordered that the litigation guardian file an affidavit setting out the necessary matters within seven days of the date of the orders and that the Independent Children's Lawyer provide specific reports to the litigation guardian. All extant applications were adjourned for mention on 28 July 2023 at 9:30 am.

Orders