Federal Circuit and Family Court of Australia
(DIVISION 1)
Rogers & Mowson [2022] FedCFamC1F 507
File number(s): NCC 554 of 2021 Judgment of: SMITH J Date of judgment: 7 July 2022 Catchwords: FAMILY LAW – PARENTING – Practice and procedure – Vacation of final hearing at Court’s own motion – Father has made workers compensation medical retirement and Total and Permanent Disablement claims based on psychiatric injury – Father gives histories to psychiatrists of severe alcohol abuse and “struggling with violent urges” – Father charged with assault on a mentally ill person in custody – Medical documents revealed late through subpoena – Prior to subpoena documents mother and child did not identify any issues of risk – Mother now seeks no time order – Father willing to proceed and argues psychiatric injuries and impact on work capacity not relevant to parenting capacity – No expert evidence addressing psychiatric issues – Court vacates Trial at own motion – Appoint single psychiatric expert – protect interests of the child in a proper determination of risk given the consequences for child of a finding of unacceptable risk Legislation: Crimes Act 1900 (NSW) s 61 Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 7 July 2022 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Crowther Sim Lawyers Counsel for the Respondent: Mr Sundstrom Solicitor for the Respondent: Toronto Legal ORDERS
NCC 554 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROGERS
ApplicantAND: MS MOWSON
Respondent
order made by:
SMITH J
DATE OF ORDER:
7 JULY 2022
THE COURT ORDERS THAT:
1.The two (2) day hearing commencing on 7 July 2022 be vacated of the Court’s own motion.
2.That the costs of the Respondent Mother arising from and incidental to the vacated two (2) day hearing be reserved.
3.The matter be listed on Thursday 21 July 2022 at 2.15pm for mention for allocation of a final hearing with an estimate of three (3) days.
Independent Children’s Lawyer
4.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child X born in 2008.
5.The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.
6.The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
7.Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
8.The parties facilitate the attendance upon her representative of the child at times and dates requested by that representative.
9.Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.
10.Leave is granted to any Independent Children’s Lawyer appearing in these proceedings to photocopy subpoena documents on the basis of the usual undertaking.
11.Liberty…
Continue reading Rogers & Mowson
Sign in free to access the full text
- AGLC
- Rogers & Mowson [2022] FedCFamC1F 507
- Case
- [2022] FedCFamC1F 507
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the father's psychiatric injuries and work capacity were relevant to his parenting capacity, and whether there was a risk of harm to the child if the father had unsupervised access. The court also needed to consider the impact of the father's criminal charges on the child's welfare.
The court found that the father's psychiatric injuries and work capacity were not relevant to his parenting capacity, but the court needed more information to determine the risk of harm to the child. The court vacated the trial at its own motion and appointed a single psychiatric expert to interview the parties and the child, and to prepare a report on the child's welfare. The court also appointed an Independent Children's Lawyer to represent the child's interests. The court made orders for the parties to provide documents and reports to the Independent Children's Lawyer and the expert, and for the expert to consider various matters relating to the child's welfare. The court reserved the costs of the mother arising from the vacated hearing, and listed the matter for mention for allocation of a final hearing. The court also made orders for the supervision of the father's access to the child, pending the final hearing.
In summary, the court found that the father's psychiatric injuries and work capacity were not relevant to his parenting capacity, but the court needed more information to determine the risk of harm to the child. The court appointed a single psychiatric expert to prepare a report on the child's welfare, and made orders for the parties to provide documents and reports to the Independent Children's Lawyer and the expert. The court also made orders for the supervision of the father's access to the child, pending the final hearing.
Orders
Orders of the court
NCC 554 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR ROGERS
Applicant
AND:
MS MOWSON
Respondent
order made by:
SMITH J
DATE OF ORDER:
7 JULY 2022
THE COURT ORDERS THAT:
1. The two (2) day hearing commencing on 7 July 2022 be vacated of the Court’s own motion.
2. That the costs of the Respondent Mother arising from and incidental to the vacated two (2) day hearing be reserved.
3. The matter be listed on Thursday 21 July 2022 at 2.15pm for mention for allocation of a final hearing with an estimate of three (3) days.
Independent Children’s Lawyer
4. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child X born in 2008.
5. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.
6. The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
7. Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
8. The parties facilitate the attendance upon her representative of the child at times and dates requested by that representative.
9. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.
10. Leave is granted to any Independent Children’s Lawyer appearing in these proceedings to photocopy subpoena documents on the basis of the usual undertaking.
11. Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers relist the matter on short notice if the Independent Children’s Lawyer considers it necessary.
Single Expert
12. A copy of these orders be given to the Expert.
13. Pursuant to Chapter 15 Rule 9 of the Federal Circuit Court Rules, that Dr B be appointed as Single Expert Witness (hereafter referred to as “the Expert”) to interview both parties and the child and to enquire into and report upon matters relating to the welfare of the child and that in preparing this report to the court, to consider the following matters:
(a) The father’s parenting capacity in view of his mental health and history of recent criminal charges; [emphasis added by Court]
(b) Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;
(c) any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(d) the relationship of the child with each of the child's parents and any other relevant person;
(e) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(f) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;
(g) the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;
(h) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);
(i) The effect on the child of any family violence to which they may have been exposed;
(j) The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
(i) Implement such an arrangement; and
(ii) Communicate with each other and resolve difficulties that might arise;
(k) The mental state of both parents in so far as it relates to parenting issues and parenting capacity;
(l) The Expert’s opinion concerning the allegations of abuse of the child; and
(m) Any other matter the expert considers relevant.
(n) The cost of the Expert Report completed by Dr B is to be borne by the father in the first instance with the mother’s contribution reserved by the Court.
I DIRECT that, upon completion, the expert report be forwarded to my Associate via email to …@...
14. The parties may jointly provide to the Expert, and the Expert may consider for the purposes of these proceedings only, copies of inter alia: any affidavit evidence of any party or person, or any other document filed and / or served by any party, in these proceedings; any document produced on subpoena to which all parties have access; any Child Dispute Conference or Child Inclusive Conference Memorandum; any Family Report; any Report of any other expert, treating or qualified, in respect of these proceedings.
Photocopying
15. Leave is granted to any Independent Children’s Lawyer appearing in these proceedings to photocopy subpoena documents on the basis of the usual undertaking.
16. If all parties are legally represented leave is granted to the legal representatives only to photocopy all subpoenaed documents in these proceedings no more than 80 business days prior to the hearing.
(a) Such leave is granted on the condition that the legal practitioner undertakes to destroy all photocopies, which do not become exhibits, at the conclusion of the matter.
(b) In addition to the usual implied undertakings in respect of subpoena material, if a legal representative exercises this right they shall be taken to have given an undertaking that they will not:
(i) distribute copies of any subpoena documents to any person (including their client); and / or
(ii) allow the further copying of any subpoena documents by any person (including their client).
Save for the following exception:
(iii) Copies of subpoena documents may be distributed to counsel or other legal representatives acting in this matter, and / or to any Single Expert appointed by the Court or the parties, or to any other Expert with the written consent of all other parties.
(c) A copy of this order is to accompany any copies of subpoena documents distributed to any person and attention is to be specifically directed to this Order, and those persons shall then be taken to have given the undertakings in this Order.
17. If a party who was represented becomes unrepresented, they shall not be entitled to copies of the subpoena documents, even if they have paid for the photocopying, and the leave granted in this Order is given on that basis.
BY CONSENT, AND WITHOUT ADMISSIONS, THE COURT ORDERS THAT:
18. The orders of 30 January 2019 be amended so that the child's time with the father in paragraphs 3.3, 3.4 and 3.5, or otherwise as occurring by agreement as between the parties, is conditional on that time taking place in circumstances where a paternal grandparent is living in the same premises as the father during the time the child is with the father.
THE COURT NOTES THAT:
A. The father has consented to supervision pending Trial, without admission, on the basis of the conservative principles that apply to an Interim Hearing on issues of risk.
B. Where a party is granted leave to review or photocopy subpoena documents the exercise of that leave is conditional on their giving the usual undertaking. The usual undertaking includes an undertaking to the Court to keep confidential and to not disclose to other person (other than a legal practitioner retained in the proceedings) any of the information or knowledge acquired by reason of the review of the subpoenaed material. It also includes an undertaking not to show or distribute or publish any document or party of any document copied from the subpoenaed material. Any person who inspects or photocopy documents is taken to have given the usual undertaking without having to sign any further document. A person who breaches the undertaking has committed a serious contempt of Court punishable by imprisonment.
C. The provisions of s 121 of the Family Law Act “Restriction on publication of court proceedings” also applies to information obtained on subpoena. A person who publishes such information commits a criminal offence punishable by imprisonment for a period of up to 1 year.
D. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.