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 liberty to charge the Respondent for her services as Litigation Guardian and IT IS REQUESTED that Victoria Legal Aid give consideration to funding the cost of the Litigation Guardian on behalf of the Respondent, in addition to the usual funding,
C.If any, the Respondent may be entitled to for legal representation as the Respondent.
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
STRUM J:
These ex tempore reasons for judgment are to be read in conjunction with my ex tempore reasons for judgment delivered on 19 April 2023: Rocco & Rocco [2023] FedCFamC1F 319. These proceedings are for parenting orders regarding the child of the relationship, X born 2020, who is three years of age. The parents separated in April 2021, and later that month these proceedings were instituted by the father. Therefore, these proceedings have been substantially coextensive with the child’s short life to date.
The proceedings were listed for final hearing commencing on 13 June 2023 with an estimated duration of four days. They were previously listed for final hearing in August 2022, and adjourned to December 2022, when they were again adjourned to this date; on both occasions the adjournments were by consent. I am acutely conscious of the financial cost to the father, who is privately funded and to the public purse, which funds the mother pursuant to an order made under s 102NA of the Family Law Act 1975 (Cth) (“Act”), and which also funds the Independent Children’s Lawyer.
The child has lived with the father since separation and spent supervised time with the mother, albeit irregularly. Through no apparent fault of the father, all orders for the mother to spend time with the child were suspended by me in April of this year, albeit on an ex parte basis, which the mother did not seek to revisit. The central 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.
Two reports in relation to the mother have been prepared by Dr G, who is the jointly appointed single psychiatric expert, who has assessed the father and endeavoured to assess the mother. His reports in relation to the mother are dated October 2021 and June 2022. In his first report, Dr G diagnosed the mother as having, amongst other things, Autistic Spectrum Disorder, a personality disorder and Social and Generalised Anxiety Disorder.
Having so diagnosed, he opined on the last page of his first report:
Psychiatric evaluations of people taking the sort of cocktail of psychiatropic medications described by and prescribed for [Ms Rocco] are always difficult.
He continued:
Clearly having used [a medication] for seventeen years there is an element of […] dependency. As indicated I have reservations about the diagnosis of [certain disorders] and, therefore, about the prescription of [other medications]. The top recommended dose of [one medication] is 20 mgs, [Ms Rocco] reports that she is using 80 mgs and given the addictive potential of [another medication] I have significant concerns about her continued use of that medication.
He said further that, in his opinion:
…[Ms Rocco] would benefit from a complete review of her psychiatric history if possible involving a period of hospitalisation to slowly withdraw many of the medications that she has been taking now for many years.
That does not appear to have occurred.
Dr G concluded his first report, that, in his opinion:
…until there is some rationalisation of [Ms Rocco’s] medication it is difficult to predict her ongoing capacity to parent. Certainly she is on a daily basis using a significant number of tranquilisers which certainly in terms of a Drivers Licence would suggest that her reaction time is probably reduced and she should, therefore, not be driving. Given the very young age of [X] her capacity to react appropriately at times of crisis is, in my opinion, a matter of concern. Given that until recently [Ms Rocco] has had a full time carer it is important for us to be able to assess her capacity to live independently without that support before assuming full time independent care of her son.
Some nine months later, Dr G endeavoured to undertake a further assessment of the mother. That second report, prepared in June 2022, was of short compass and was filed under cover of an affidavit dated 21 July 2022. Relevantly, he stated that:
On presentation [Ms Rocco] was clearly irritated, reluctant to turn off her telephone and sat with her arms firmly crossed. I explained that I had been asked to review her current mental state following my initial assessment of […] September 2021. I acknowledged her pregnancy and asked her how many weeks pregnant she was and her reply was “It is not a party to this matter”. When I suggested that the pregnancy may be relevant in terms of assessing her capacity to parent and also its possible impact her [sic] her future mental health she refused to accept the proposition and refused to discuss the matter. She demanded that I tell her my diagnosis and questioned how I dared to challenge her seventeen year psychiatric history. I reminded her that my recommendations were for a full review of her psychiatric history and medication. She replied that her medication had been changed and made her worse and that I was “a walking medical negligence case”. I explained that given her attitude to this review there was little point in continuing and I terminated the interview.
In considering today the issue of the mother’s capacity to give adequate instruction for the conduct of the proceeding, there has been no suggestion that she wants to, or will, participate in any assessment by Dr G hereafter. Accordingly, there seems little utility in making an order therefor. The matter was stood down yesterday, being the first day of the scheduled final hearing, for settlement discussions, which broke down late in the day. At the commencement of the day today, by reason of a further minute of orders sought by the mother in accordance with my directions yesterday, it seemed that the gap between the parents had significantly narrowed and the proceeding might be capable of resolution, especially with the assistance of the Independent Children’s Lawyer.
However, about an hour later, I was advised by counsel for the mother that, in his professional opinion, r 3.12(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) is engaged. He did not disavow the possibility of the applicability also of the first disjunctive limb of that rule. That is somewhat surprising, in my view, given that as recently as last Friday, 9 June 2023, the mother’s solicitors advised the solicitors for the father and the Independent Children’s Lawyer that, in their opinion, the matter was ready to proceed and they opposed any adjournment of the trial this week.
Rule 3.12(1) provides that:
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
The submission of the mother’s counsel is that, in his professional opinion, as counsel acting for her, he has found the mother not capable of giving adequate instruction for the conduct of the proceeding. Rule 3.15(2) provides that:
(2)The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
Self-evidently, once appointed, a litigation guardian takes over the conduct of the proceeding. For this reason, the appointment of a litigation guardian is a serious step, as it removes control of the litigation from the litigant and places it with the guardian. The difficulty facing all parties in this case is that r 3.13(1) provides that:
(1)A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.
Therefore, if I accede to the request of the mother’s counsel, which is supported by counsel for the Independent Children’s Lawyers and, indeed, by counsel for the father, these proceedings cannot proceed further until a litigation guardian has been appointed for her.
In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432, the Full Court of the Federal Court said at [27]:
The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
[17] … even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
Having read the two reports of Dr G, and there being no suggestion that the mother wants to, or will, participate in any assessment by Dr G hereafter, there would appear to be no utility in so ordering. I am not urged, in particular, by the mother’s counsel, to do that.
The Full Court continued at [27]:
…There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy at [37] per Handley JA; AJI Services at [57] per Bell J.
Therefore, whilst the Court will ordinarily be guided by medical evidence, there may be circumstances where the conduct or presentation of a party is so extreme that the Court is entitled to rely on its own common sense and experience. I do not suggest that is necessarily the case here, but this is not the first occasion in this proceeding where the issue of a litigation guardian for the mother has been raised. Indeed, it was previously raised by me, but not pursued then.
In addition to the submissions of counsel for the mother, counsel for the Independent Children’s Lawyer has told me today, albeit from the bar table, that she spoke with and observed the mother yesterday, and to a lesser extent today, and she concurs, at least, that the second limb of r 3.12(1)(b) is engaged. Insofar as today is concerned, counsel for the Independent Children’s Lawyer has told me that she was only able to communicate with the mother through the closed door of a toilet cubicle in the women’s bathroom at Court and that all the mother was able to tell her is that she wants her son back.
I can well understand that parental sentiment and do not discount it, but that is not the issue. Rather, the issue is whether it is in the child’s best interests for that to occur and, if so, to what extent and under what, if any, terms and conditions. I was directed today to the two s 69ZW reports prepared by the Department of Families, Fairness and Housing (“the Department”), one dated 5 June 2023, in relation to the mother’s twin children by a subsequent relationship, B and C, who were born in 2022, and another s 69ZW report dated the following day, 6 June 2023, in relation to the child the subject of these proceedings.
In order to explain why it is that I will accede to the request of the mother’s counsel, which is supported, as I have indicated, by all other counsel at the bar table, it is necessary for me to refer in some detail to those reports.
In the first of the reports, it appears that in 2022, some six days after the twins were born, Child Protection received a report regarding their safety and wellbeing, having been delivered prematurely.
The report refers to the mother’s mental health. Her diagnoses were listed as various mental health disorders.
Later in 2022 Child Protection was contacted again with concerns for the mother’s mental health. Two days later, Child Protection workers met with the mother’s mental health team who confirmed her diagnosis and that she had been referred to mental health case management through H Health Service.
It was assessed that the mother was adequately supported by her parents, who were living in the home with the twins and her. The following day, Child Protection received a report of concerns regarding weight loss by the twins. Later that month, there was a notification to Child Protection regarding concerns that the twins had not been taken to an appointment at J Hospital regarding an issue which had been an issue since their birth. On that day, Ms Rocco did not allow Child Protection to enter the home and police were called.
In late 2022, a protection application was issued pursuant to s 162(e) and (f) of the Children, Youth and Families Act 2005 (Vic). Child Protection assessed that there were reasonable grounds to believe that the twins were likely to be the subject of harm due to exposure to Ms Rocco’s mental health. Child Protection further assessed that there were reasonable grounds to believe that the twins’ physical developmental health was likely to be significantly harmed by reason of their failure to thrive, failure to provide adequate care, adequate food and fluids and failure to ensure adequate development.
An interim accommodation order was granted placing the twins in the care of Mr K and Ms L, the mother’s parents. The mother’s contact with the children was to be monitored. She was ordered to complete a parenting assessment, to continue to attend a psychologist and/or psychiatrist and to provide reports to Child Protection.
In early 2023, there was a further report to Child Protection of escalated mental-health difficulties on the part of the mother. Five days later, in a telephone conversation with Child Protection, the mother reportedly presented as distressed and dysregulated.
In early 2023, Child Protection spoke with the mother’s general medical practitioner who advised that the mother was last seen the previous month and that she presented as:
…“more on edge than normal” and had stopped some of her medications due to being under pressure.
About one week later, Child Protection was further informed that stopping her medications abruptly, as the mother appeared to have done, could cause mood disturbance, anxiety and disturbance generally.
The following month, Child Protection received an after-hours call reporting concerns for the mother’s mental health.
Three days later, Child Protection issued an emergency care application to vary the interim accommodation order in relation to the mother’s contact with the twins, such that it be fully supervised due to concerns for her capacity to care for them. The report further makes clear that the mother had refused to comply with a condition of the order, whereby she was required by the Children’s Court to complete a parenting assessment.
The next day, Child Protection’s application to vary the interim accommodation order was granted. The mother was no longer allowed to live with the twins. Her contact with them was changed from monitored to fully supervised by Child Protection or a person authorised by Child Protection, twice per week. The mother was not ordered to complete a supervised urine/drug screen, as she stated she did not wish to seek reunification at that time.
The following day, Child Protection was informed that concerns had again been raised for the welfare of the mother, who was unable to be reached by H Health Service Crisis Assessment and Treatment Team (“CAT team”). She was unreachable and had last been seen the previous day, in the morning, at the Children’s Court, and she was therefore registered as a missing person with the police.
The next day, Child Protection was informed that the mother was found unconscious in her car and had overdosed, with suicidal intent. She was hospitalised and, a few days later, she was discharged to crisis accommodation and her community supports.
The following day, the mother disclosed to Child Protection that she had been using illicit substances, drinking alcohol and had been non-compliant with her prescribed medication since the twins’ admission to the Special Care Nursery after their birth.
She reported to be drinking alcohol when she did not have chemicals. She stated that she was using “[multiple illicit substances]”. She stated that she would need time to achieve reunification with the twins.
Three days later, she had a contact visit with the twins, supervised by Child Protection. Staff observed her presentation to indicate mental-health instability and possible substance use.
It was observed that the twins reacted adversely during the contact visit, with lengthy episodes of crying and distress. The mother was also observed to struggle to hold the twins safely. She opted to sit on the floor in the library and used the twins clothing and her own to cover their faces and shield them from the lights. On that occasion, Child Protection conveyed to the mother that she had been observed to be scratching her arms. She replied that this was a nervous reaction; however, she later admitted to Child Protection that she had been actively using an illicit substance since her recent discharge from N Medical Centre, after her suicide attempt, together with drinking a large volume of alcohol.
In mid-2023, Child Protection was advised that the mother had not actively engaged with her psychologist under her NDIS plan and that, whilst one initial appointment had been undertaken, there had been no active engagement by her. Child Protection was further advised that the mother’s NDIS support worker would no longer be working with her due to the mother having been seen to be drinking alcohol before the Children’s Court hearing.
Child Protection was also provided that day with an update from the H Health Service Crisis Assessment Treatment Team nurse. The mother had been visited every second day for regular reviews. She was last reviewed in mid-2023 and was next due to be reviewed two days later. However, Child Protection discussed with the nurse the illicit substances that she had reported to be using and the nurse stated that the illicit substances counteracted the therapeutic benefits of her antipsychotic medication.
The report of the Department in relation to the twins continues that:
Given the information provided, [Ms Rocco] has overdosed with suicide intent and is reporting to be drinking alcohol and taking illicit substances compromising the therapeutic benefits of her antipsychotic medication. Child Protection is significantly concerned for the [Ms Rocco’s] mental health. Child protection is seeking that [Ms Rocco] complete regular Supervised Urine Drug screens to ascertain her current usage and engage with an Alcohol and Other Drug treatment service to address her substance misuse. Child Protection continues to seek that the mother complete assessment and treatment by a psychologist and psychiatrist to monitor her compliance with medical recommendations. Child Protection seeks that [Ms Rocco] complete a parenting assessment to understand her circumstances and capacity to safely care for her children. In the absence of a parenting assessment Child Protection does not have information to understand [Ms Rocco’s] parenting capacity, formulate goals, or identify any barriers and address them with linkages to services. Without this assessment and report, Child Protection does not have information to understand the [Ms Rocco’s], baseline current strengths and gaps. Without engagement with a program Child Protection does not have the means to measure change and progress the safe reunification of [Ms Rocco’s] children [C] and [B] into her care.
In mid-2023, a special hearing was scheduled to discuss the court-ordered parenting assessment in which the mother was declining to participate. On that day, the interim accommodation was varied to include a requirement that the mother complete supervised urine/drug screens on Mondays, Wednesdays and Fridays, that she attend a residential detoxification stay and that she engage with alcohol and other drug counselling. It was assessed that she needed to attend to her mental health as a priority. That does not appear to have occurred.
Three days later, Child Protection was informed that the CAT team was unable to complete mental health assessments due to the mother self-reporting to be substance-affected and that no visits would be continued, as engagement with her was voluntary and she did not wish to continue with the support offered.
As recently as June 2023, Child Protection was informed of a family violence incident, listing the mother as the respondent. It appears she attended the children’s placement, contrary to the Children’s Court contact conditions, and caused property damage.
The mother was served with a full Family Violence Safety Notice listing her parents and the twins as the protected persons. She was released on bail with conditions, and her hearing has now passed, but I do not understand there to be any evidence as to what, if anything, occurred on that date. To the date of the report, it was noted that the mother had not completed supervised urine and drug screens, and no recent reports of her engagement with a psychologist or psychiatrist had been provided to Child Protection to inform how, if at all, she was addressing the protective concern.
The mother’s last contact visit with the twins was in May 2023. Since then, Child Protection has assessed that, in the best interests of the children, supervised contact between the mother and the twins should occur in departmental offices only. The identified primary risk factor to the twins was their exposure to the mother’s current mental health and her illicit substance use, for which it was noted she requires further assessments.
As I endeavoured to point out to counsel for the mother, and to the mother herself who was seated in Court yesterday, it is somewhat difficult to reconcile her application before this Court, which in summary was, as of yesterday, that she and the applicant father should have equal shared parental responsibility for the child and that he should live with each of them on a week-about basis, in circumstances where the twins have been removed from her care and she is only to have supervised time in departmental offices However, the circumstances that have arisen today may explain the apparent lack of logic.
The second report, to which I refer to more briefly, relates to the child the subject of these proceedings. Whilst there have been five previous reports to Child Protection, some in relation to the father and some in relation to the mother, the only one that was found to have been substantiated related to concerns regarding the mother in 2021, including in relation to her mental health. However, it was assessed that he was safe in the father’s care and that the protective concerns did not warrant ongoing Child Protection intervention, such that their involvement ceased in 2021.
Insofar as the current situation is concerned, the second s 69ZW report states inter alia as follows:
[In early] 2023, the department received a report raising concerns for [X’s] safety and well-being…Concerns reported related to [Ms Rocco] attending the maternal grandparents’ home on [the previous day] and attempting to remove [B] and [C] with the intent of taking them interstate. The reporter advised that [Ms Rocco] spoke about wanting to take [X], [B] and [C] to Queensland to reside with a friend. It was reported that [Ms Rocco] was unable to remove [B] and [C] from their maternal grandparents’ care due to a Children’s Court order and the children being listed on her bail conditions. [Ms Rocco] was reported to have said that all contact between her and [X] had been suspended, but did not provide further details.
It was also reported that:
[Ms Rocco] had overdosed on prescription medication [in] 2023, waking up in hospital the following day.
That would appear to be a possible second suicide attempt by the mother, but I cannot take that matter any further.
The report continued:
Further concerns were reported in relation to several medical and mental health professionals believing that [Ms Rocco] was engaging in illicit substance use. The reporter advised that [Ms Rocco] was observed to be erratic in her behaviour and her arguments were difficult to follow. [Ms Rocco] was reported to be at high risk of self‑harming and experiencing suicidal ideation. Furthermore, the reporter advised that [Ms Rocco] disclosed that she should be hospitalised to receive mental-health support. Due to [Ms Rocco’s] presentation and mental-health concerns the reporter did not believe that [Ms Rocco] would have the capacity to travel to [Mr Rocco’s] residence and remove [X] from his care.
I note that that protection report remains open, in the intake phase, where information will be gathered to determine the outcome thereof.
As I have indicated, I am somewhat concerned by the lack of any contemporaneous expert psychiatric evidence on behalf of the mother that would, ideally, confirm that she meets one or the other or both of the tests for the appointment of a litigation guardian.
However, that is largely a matter of her own doing, given her unwillingness to abide by the recommendations in Dr G’s first report and her unwillingness to undertake assessment for the purposes of a second report. As I have indicated, in the absence of any suggestion on her behalf that she is prepared to do so, I see little utility in delaying the issue of the appointment of a litigation guardian for the mother.
The matters to which I have referred may explain the mother’s conduct of her case, through her solicitors, in the lead-up to trial, including the unusual orders sought in her amended response filed 22 March 2023, such for what is to occur in the unfortunate event of X’s death or needing to be placed on life support. This is in circumstances where there is not a shred of evidence that either of those eventualities may occur. I refer as also to the form of her trial affidavit, which does not engage with the Department’s protective concerns in any substantive fashion, as well as to the uncertainty which has surrounded the conduct of her case yesterday and today.
In all the circumstances, I am satisfied, to the requisite standard, that the mother meets, at least, the second limb of r 3.12(1)(b) but possibly also the first limb in paragraph (a), but I do not need to go that far at this stage on the evidence. I shall make orders accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 17 July 2023
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