Rogers & Mowson
[2022] FedCFamC1F 507
•7 July 2022
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Mowson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This matter is listed for a two-day final hearing on parenting in Division 2 commencing today. The matter was transferred to Division 1, to my list, because the trial judge in Division 2 was unavailable and I was available. The matter was, apparently, a relatively simple case.
The Child Inclusive Conference memorandum dated 2 July 2021 (“the memorandum”), prepared by the Court Child Expert, Ms C identified at [7] of the memorandum that:
There are no concerns regarding unacceptable risks in either household. The father referred to the mother as being a good mother who has historically taken care of not only [X] but also her 18-year-old son and now her almost 2-year-old son.
And at [8] of the memorandum:
The mother did not express any unacceptable risk of harm concerns in the father’s household.
The issue at that time was that the father was proposing an equal time arrangement, whereas the mother seemed to be saying that she would support X’s views.
X has had a period of equal shared time previously and has expressed her view that she found it stressful. I note that X was born in 2008, is in year 8 and is mature enough to express a view which must be given weight.
X told the Court Child Expert at [17] of the memorandum:
[X] reported that she enjoys spending time with the father, as well as the paternal grandparents. But she does not want to live with the father week about. She reported that she just wants to live in the one home and views the mother’s home as her primary residence.
X also said commencing at [24] of the memorandum:
24.[X] says that she loves the father and enjoys spending time with him but feels alternate weekends and blocks of school holiday time along with FaceTime will suit her needs much more. Particularly as she moves through high school.
25.[X] said that she finds the current arrangement stressful and exhausting, she is hopeful that the father will listen to her views as the mother has and he understands that the current arrangement does not meet her needs nor will week about shared care.
In those circumstances, this was an entirely appropriate matter for a two-day hearing in Division 2.
However, I am told only “recently” the mother has accessed the father’s subpoena material in respect of his claims both for worker’s compensation, where he claims a medical basis for permanent medical retirement, and for total and permanent disability (TPD) pursuant to the policy taken out by his employer for the benefit of employees. The father says that he is psychologically incapacitated for his work, and it appears, for any work. The mother now seeks to rely upon the evidence that is contained in that material.
I am informed and accept that this material about the father’s mental health came late and that the father had not disclosed it to the mother. It appears he has not disclosed it to his own solicitors either.
The material from those subpoenaed records contained in the tender bundles includes, for example, histories from 2020 in which the father gave to the psychiatrist Dr D. The father was said in the report of 25 May 2020 to have reported that he was drinking up to 26 standard drinks per day. That is obviously a matter of significant concern as that level of alcohol consumption must impair parenting capacity as well as work capacity.
More concerning, in the report of 23 February 2021, Dr D recorded a history that the father was “struggling with violent urges”. That history was noted in the context where it is alleged that during the course of his work the father assaulted a mentally ill person.
The father has been charged with common assault pursuant to section 61 of the Crimes Act 1900 (NSW). I understand those charges are yet to be dealt with and determined.
The incident was captured on footage. I note that whilst this is an issue before another Court and I do not know the father’s position, the history which on the documents is that a person was being retained pursuant to the Mental Health Act, which the father was aware of. He was aware, therefore, that he was dealing with a mentally ill person.
The history as reported is that the person:
Became verbally abusive towards [Mr Rogers] and the […] officer he was standing with at this time. [Mr Rogers] walked directly the front of [the person] where he is seated on a masonry wall. [Mr Rogers] said ‘You want to be a fuckin’ tough cunt’, the person in custody said ‘What?’ and raised both hands with open palms facing in. [Mr Rogers] said ‘You want to be a tough cunt’ as he continued to move forward and then pushed the person […] with two open palms in the chest. The force of the push caused the person […] to lose balance and fall backwards so that his legs remained on the low wall, his upper body and head rested on the fence behind the wall.
This is the first common assault charge.
It is then alleged, based upon what appears to be quite a number of witnesses at this stage and footage that:
[Mr Rogers] grabbed the person in custody in or around the neck area, it is unclear if this is by the shirt or body.
That was the second common assault charge.
The matter has been referred to the relevant authority and they are, as I understand it, proceeding with the charges.
This is a matter of concern where the father alleges serious ongoing psychological issues.
This alleged behaviour goes to the question of impulse control. It appears that he has been, or has been alleged to have been willing to commit, an act of violence against a mentally ill person knowing that he was surrounded by witnesses who had cameras which would record his actions, and of the possible consequences.
The lack of impulse control in dealing with a person who angered the father is an issue which also potentially goes to parenting capacity. Particularly given the fact that even the best teenage girl or boy can display significant oppositional behaviour and the response of a parent and their capacity to control their anger and impulses are fundamental to the question of parenting capacity.
Both the father and the mother said they were content to proceed on the material before me which addresses the father’s psychological capacity for work, but which does not address his psychological capacity to parent.
I did consider doing so given the father wished to. Indeed, if this was civil litigation, I would let the father take his chances on the material before me, and try and persuade me that these matters relate only to his capacity to work, on his own case he is permanently and total unfit because of these psychological problems.
However, this is not a case as between the father and the mother. This is a case about what is in the child’s best interests. If the material before me satisfies me that, unfortunately as a consequence of his duties, the father has suffered such psychological harm that he is not able to control his impulses and his violent urges in a work situation, then that may create a risk that he cannot control them at home, and so creates a risk to the child. Indeed, the mother today says she is seeking a no time order based on unacceptable risk to the child arising from that material.
Again, I emphasise that I am not concerned here with what is in the best interests of the father and what time he may want to spend with the child, but what is the child’s best interests and it is for that reason that I consider the matter unready to proceed.
It may be that these identified psychological incapacities do affect the father’s parenting capacity as well as his work capacity. It may be that, properly analysed, they don’t. In that regard I note that this child inclusive conference memorandum is significant because whilst the father has had these difficulties they don’t appear, on the material before me in the Child Inclusive Conference memorandum, to have currently impacted on X. She has not reported any difficulties and the mother wasn’t aware of any until she saw the subpoenaed medical records.
Given the fact that I have an obligation to be cautious in the protection of a child, on the present material I would be gravely concerned about whether or not the father should be involved in the child’s life. It seems to me that it is in the child’s best interests, given the real potential for a no time order given the material I have now read, that the Court be properly informed about the potential impacts of the father’s mental health on his parenting capacity.
As I have said, if this was civil litigation between the parties, I would let them take their chances. But given the potentially grave consequences for X if I am not properly informed by a qualified psychiatrist about the impact of these psychological difficulties and history upon the father’s parenting capacity, to allow a proper risk assessment can be made, the potential consequences for X of a no time order which may not be necessary are too serious to allow the matter to proceed today.
In those circumstances, of my own motion in X’s best interests, I vacate the final hearing.
Of course the father should have told his solicitors and should have disclosed this background. However, there are many reasons why a person will not, particularly the shame and embarrassment that often accompanies mental illness. That is a matter for a later time.
I also note that the father appears to have acquired these difficulties in the course of serving the public, which is perhaps a complicating factor, but ultimately if he is not able to control his impulses and that creates a risk for X, then that must have consequences on the orders.
I will hear the parties before I make the final orders but I will indicate that I have in mind that I should reserve the mother’s costs of the vacation to be determined at a later date. I think given the serious risk issues that now arise there should be an Independent Children’s Lawyer appointed, and also noting also X’s age on that issue. Further, I have in mind, requiring the parties to appoint a single independent forensic psychiatrist to advise on the potential risks to the child from the father’s mental health issues in the usual way.
Those are my short oral reasons. I will need to hear the parties on the specific orders first.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 19 July 2022
0
1