Stewart & Clementine

[2022] FedCFamC1F 154

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stewart & Clementine [2022] FedCFamC1F 154

File number(s):	MLC 4406 of 2013
Judgment of:	BENNETT J
Date of judgment:	15 March 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – readiness of matter for final hearing – progress of external reports – Final hearing vacated.
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	15 March 2022
Place:	Melbourne (heard via MS Teams)
Solicitor for the Applicant:	Hartleys Lawyers
Solicitor for the first Respondent:	Litigant in person
Counsel for the second Respondent:	Ms Johnson
Solicitor for the second Respondent:	MMH Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Mansfield
Solicitor for the Independent Children’s Lawyer::	Cathleen Corridon And Associates

ORDERS

MLC 4406 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS STEWART

Applicant

AND:

MR CLEMENTINE

First Respondent

MS MILDER

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	15 MARCH 2022

THE COURT ORDERS THAT:

1.The final hearing of this matter set down for 4 July 2022 be and is hereby vacated NOTING THAT the matter will require a priority listing in due course.

2.This matter be adjourned for mention before me on 18 May 2022 at 9.00 am for further review as to the status of the SOCIT investigation and the readiness of the matter generally for re-allocation of the final hearing and the parties be at liberty, through the independent children’s lawyer, to obtain an administrative adjournment by consent if the matter is not ready for further directions for trial.

3.There be liberty to the parties to submit any orders which are sought to be made by consent in relation to the ongoing supervised contact following consultation with the Department of Families, Fairness and Housing.

4.The Independent Children’s Lawyer distribute the report of Dr B when same is to hand and provide a copy to my Chambers – email …

5.My reasons for decision this day be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.

AND IT IS NOTED THAT the parties were provided with the updated report dated 15 March 2022 from the Department of Families, Fairness and Housing this day prior to the hearing of this matter.

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 Stewart & Clementine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. This matter comes before me as a mention to check on the progress of external reports upon which the feasibility of the final hearing on 4 July 2022 hinges. 

2. These proceedings concern X, who is 11 years old.  X currently resides in the care of her paternal grandmother and is having regular or weekly supervised visits with each parent.  The parents have separated.  There is currently an investigation by the Sexual Offences and Child-abuse Investigation Team (“SOCIT”) into allegations made by X about the mother’s residential partner. Whereas that allegation was made on the eve of the trial in October 2021 before Judge Howe and precluded the matter proceeding to a final hearing at that time, it appears that very little has been done by SOCIT since. The mother and her residential partner have not been interviewed.

3. The independent children’s lawyer and the Department of Families Fairness and Housing (“DFFH”) have made inquiries of SOCIT and have been advised that SOCIT is “very busy” and that SOCIT does not anticipate getting to this matter until later in the year.  That seems unsatisfactory. I cannot imagine what anguish it gives the parents. 

4. As matters stand, Dr B, psychologist, is about to complete his psychosexual assessment of the father which may be released as early as Thursday of this week.  The other report being completed is by Dr C, a paediatric psychologist. That report is also being commissioned by DFFH. It cannot be completed until the SOCIT investigation is completed.  In turn, any family report under s62G(2) of the Act for the purpose of a final hearing would be of little amenity until SOCIT has completed its investigations and DFFH has completed its investigations, including collating the necessary external reports. 

5. I see no alternative other than to vacate the hearing on 4 July 2022.  That is in the interest of freeing up that date for another case.  I stress that, when this case is ready to proceed, I will be prioritising it over some other case and vacating the hearing date in that case. 

6. I will set, in consultation with my Chambers, a review date in approximately two months-time to see how things are travelling.  The parties will have liberty to apply to for a minute of orders to be made by consent.  The current supervised contact orders require some tweaking in consultation with the department who are likely to send an officer to attend. I do not want the parties to incur further legal costs unnecessarily. In the meantime, I will also investigate how this matter can be brought to the attention of Victoria Police in an appropriate way.

7. This is a matter in the courts’ Magellan List which is designed to ensure that cases which are the most resource intensive, involving the most vulnerable children, are dealt with as effectively and efficiently as possible.  It is subject to the Magellan Case Management protocols the principles and key components of which are[1]:

   [1] National Procedures for the Conduct of Magellan Cases, Principal Registrar’s Chambers (Revised 2 May 2007).

   ·The Magellan list is confined only to cases involving allegations of sexual abuse or serious physical abuse of a child.

   ·There is priority on early intervention so that resources are directed to the dispute from the outset.

   ·The court provides a judge-led, tightly managed approach - a multi-disciplinary team of Judges, Registrars and Family Consultants handle the cases from start to finish.

   ·A time limited approach - most cases proceed through the FCoA in accordance with a target six-month time-line.

   ·The use of a Court ordered Independent Children’s Lawyer in every case, funded by legal aid.  The legal aid cap is lifted for parents who otherwise qualify for legal aid.

   ·An early and detailed family report is prepared by a Family Court Family Consultant or external expert in all appropriate cases, analysing the family dynamics and the needs of the children.

   ·The use of court ordered expert investigations and assessments from State/Territory child protection authorities - early information is sought as to:

   ·whether it seeks to intervene in the FCoA proceedings;

   ·whether it has investigated allegations;

   ·the conclusion of any investigations;

   ·the reasons for the conclusion; and

   ·any recommendations or other relevant information.

8. In this matter we are at the stage of waiting for expert investigations and assist assessments from the state and territory of child protection authorities.

9. It is worth noting that in order to manage these complex cases and establish and maintain critical relations with external stakeholders, it is required that each registry of the court (now Division 1) would have a Magellan Stakeholder Committee which meets regularly. Matters such as the delay in this case could there be raised with stakeholders such as Victoria Police through its representative on the Committee.  As best I understand, the Magellan Committee no longer has a Magellan Judge or representation by Victoria Police and, through Victoria Police, SOCIT.  The extent to which the court’s obligations in Magellan matters can be accommodated within the restructured delivery of court services by the administration is a matter which should be clarified. It is important that the procedures within the Magellan case management system are applied transparently and that any deviations from the protocol entered into by the court be, at least, notified to and, at best, agreed to by external stakeholders.

10. I will refer this matter to the Magellan Registrar of this Registry, Judicial Registrar Angela Altavilla, with a request that she contact with Victoria Police or, if considered appropriate, an officer within Family Violence Command, Sexual Offences and Child Abuse Team with a view to seeing how the investigations about X are to be progressed or at least a time line for SOCITS’s investigations. For the avoidance of doubt, these reasons for decision can be provided by the Magellan Registrar to the appropriate officer of Victoria Police.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 15 March 2022.

Associate:

Dated:       16 March 2022