Bosch & Annema
[2024] FedCFamC1F 280
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bosch & Annema [2024] FedCFamC1F 280
File number: SYC 8269 of 2021 Judgment of: CAMPTON J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was made by a judge of Division 2 – Where the father does not reside in Australia and does not intend to travel to Australia for the purposes of a trial – Where his oral application to attend the trial by way of electronic communication was refused – Where the scheme pursuant to s 102NA of the Act is not available to non‑Australia residents who are not attending the trial personally – Where the allegations of violence are historic – Where s 102NB of the Act can be invoked to ensure there are appropriate protections in place during any cross‑examination, if it occurred, during the trial. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 68B, 102NA, 102NB, and 114 Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 24 April 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Swaab Attorneys Solicitor for the Independent Children's Lawyer: Scb Legal Pty Ltd ORDERS
SYC 8269 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANNEMA
Applicant
AND: MR BOSCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.Order 1 of the orders made on 21 March 2024 is discharged.
2.The proceedings are listed for trial over three days commencing on 22 May 2024 before Curran J.
3.The oral application of the father to participate in the trial, set to commence on 22 May 2024 by way of electronic communication, is refused.
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 Bosch & Annema has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Mr Bosch (“the father”) commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) by way of an Initiating Application filed 9 November 2021 seeking orders regulating the parenting of the child X, born 2013 pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”). By way of a Response to Final Orders filed 7 December 2021, Ms Annema (“the mother”) seeks different orders as to parenting. The Independent Children’s Lawyer (“ICL”) was appointed on 30 May 2022.
BACKGROUND AND CONTEXT
The father was born in 1968 in the United States of America (“USA”), and remains a resident of, and lives in, that country. He is currently 56 years old. The mother was born in 1971 in Australia and lives in Sydney, Australia. She is currently 52 years old. The parties were married in Sydney in 2012 and separated on 1 November 2013. They were divorced in 2020.
The child lives with the mother in Sydney. He is in year five at B School. From the age of two he presented with several challenges. He has been diagnosed with Autism Spectrum Disorder (“ASD”) (Level 2), Global Developmental Delay (low range), Attention Deficit Hyperactivity Disorder (“ADHD”) and a mild intellectual impairment. He lives with challenges that include with anxiety, poor emotional regulation, sensory sensitivities, impulsivity, and difficulties with transitions and change in routine, often leading to intense emotional outbursts. It is self-evident that the challenges that the child lives with causes him to require substantial support in social communication and interaction. He is in receipt of benefits from the National Disability Insurance Scheme and receives support from a speech therapist, psychologist, educational psychologist, musical therapist, and a mathematics tutor. The mother does not work and cares for the child on a full-time basis.
The father returned to live in the USA from Australia in late 2013. The mother submitted in her affidavit of 7 December 2021 that the father has travelled to Australia on eight occasions since that date and has spent supervised time with the child for a period of two to three hours on two to three days during the school holidays on those occasions. The father has communicated with the child by way of telephone and video calls on two occasions each weekend since September 2022. The father has not physically seen the child since January 2020. The child was then six years of age. He is now eleven.
The father has not amended his relief since it was filed on 9 November 2021. Broadly, he seeks:
(a)For he and the mother to have equal shared parental responsibility for the child;
(b)For the child to live with the mother;
(c)For the child to spend time with him for block periods of two weeks during the Terms 1, 2, and/or 3 school holidays, and, alternating yearly, four weeks or six weeks during the Term 4 holidays;
(d)That during his time spent with the child during the Term 4 holidays, for him to be allowed to travel with the child to the USA; and
(e)To communicate with the child by video call three times per week, and on special days including the child and father’s birthdays, Father’s Day, Easter Sunday, and Christmas Day.
The mother filed an Amended Response to Final Orders annexed to her written submissions on 23 April 2024. Broadly, she seeks:
(a)Sole parental responsibility for the child;
(b)For the child to live with her;
(c)For the father to communicated with the child by video call once each week and on the child and the father’s birthdays, Father’s Day, Easter Sunday, and Christmas Day; and
(d)For the father to spend supervised time with the child in Australia for a period of two hours, up to three times each week during the school holidays.
The ICL broadly seeks the orders proposed by the mother.
The father encountered difficulties in the Court hearing today identifying an understanding as to the aspects as to parental responsibility. He will not agree to an order that the mother have sole parental responsibility, notwithstanding he does not disagree that he and the mother are in high conflict and cannot communicate. He further does not put into issue that there is little prospect of successful in future communication between he and the mother. He identified today that the mother achieving an order for sole parental responsibility is inevitable and that “he can’t stop it”. Notwithstanding those concessions, he refuses to consent to an order for sole parental responsibility of the child in favour of the mother.
To my mind, the prospects of the mother achieving an order for sole parental responsibility of the child in the circumstances of this case are self-evident.
A Family Report was produced on 9 October 2023 by Mr C. The Family Report writer was unable to observe the father with the child due to the father being in the USA.
The Family Report writer noted that there was “no information corroborating a history of family violence”.
The Family Report writer recommended the father travel to Australia during the Christmas school holidays in 2023 to spend time with the child. The father did not avail himself of the opportunity to do so.
The father was legally represented until 26 February 2024. Since that time, he has appeared without representation.
The Family Report writer recommended that time with the father begin as supervised time, and increase such that, provided the father collaborates with the child’s paediatric team and completes specified parental education, in 2024 and subsequent years, the child spend time with the father in USA.
The father has not travelled Australia to attend any court events.
I enquired with the father today as to whether he would travel to Australia for a trial. He did not directly engage with the question, identifying issues as to having no resources at present, and an unspecified issue as to his health. I implicitly determine that the father will not come to Australia to engage personally in a trial event.
The father, in his written submissions filed, and confirmed during the hearing today, said that he does not wish to use counsel in Australia but has little choice to do so, and that he has “travelled enough” with “zero reciprocation” from the mother. He submits that he has “a right to equal time” with the child, and that such time does not have to be in Australia.
The mother filed an Application in a Proceeding in Division 2 on 12 March 2024, sealed on 14 March 2024, seeking for the requirements of s 102NA to apply to cross-examination in the proceedings. The proceeding, at that time, had not been listed for final trial.
On 21 March 2024, and the following orders were made by a judge of Division 2 sitting in Melbourne:
THE COURT ORDERS THAT:
1.The requirements of section 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.
2.A copy of these orders be provided to New South Wales Legal Aid.
3.The Application in a Proceedings filed 14 March 2024 is otherwise dismissed.
THE COURT NOTES THAT:
A.There are allegations of family violence between the parties.
B.The parties have been advised by the Court:
i.That pursuant to these Orders, neither party may cross-examine the other party personally;
ii.That pursuant to these Orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
iii.As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
iv.That a copy of these Orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
…
On 9 April 2024, orders were made by another judge of Division 2 sitting in Melbourne, transferring the matter to the Federal Circuit and Family Court of Australia (Division 1). The orders record:
THE COURT ORDERS THAT:
1.This matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, noting that the following criteria are identified:-
(a)If the matter proceeds to final hearing it is likely it would take more than 4 days of hearing time.
…
AND THE COURT NOTES THAT:
…
E.The trial plan indicates that the case will take in excess of four days, and at the direction of the Chief Justice is therefore transferred to Division 1.
…
Leaving aside the reasons judges of another court would purport to confine the discretion of a trial judge of this Court in the conduct of a final trial event, after the transfer of the proceeding to this registry and in my capacity as the Sydney Division 1 Case Management Judge, consideration has been undertaken as to the conduct and management of proceeding in Division 2.
I do not accept the assessment that the case will require four days. The father appears not to accept the child’s diagnosis and presentation; however, he does not propose to adduce any evidence to the contrary. On one view, it would be difficult for him to provide any evidence as to his observations and lived experience of the child, as he has not had any physical contact with him for four years. The Family Report writer opined that the child may be able to travel at some point in the future, however this required increasing contact between the father and the child in Australia, of which the father has not engaged. It is therefore unlikely that the child will be able to travel to the USA in the foreseeable future to spend time with the father.
By way of orders made on 16 April 2024, the parties were placed on notice as to the following matters:
THE COURT ORDERS THAT:
1.The proceeding has been listed for Interim Hearing at 2.15pm on 24 April 2024 by way of Microsoft Teams for the following purposes:
a. Consideration on the courts own motion as to a summary determination of the relief sought by either parent pursuant to s 45A of the Family Law Act 1975 (Cth) and/or to make determinations pursuant to s 69ZR of the Family Law Act 1975 (Cth); and
b. Subject to the determination of the matters in Order 1 (a) above, on the courts own motion as to the discharge of Order 1 of 21 March 2024 by Judge Harland; and
c. Subject to the determinations identified in Order 1 (a) and (b) above, further case management directions.
2.Each party and the Independent Children’s Lawyer are directed to file and serve written submissions of no greater than 3 pages engaging with each of the matters identified in Order 1(a) on or before 23 April 2024.
3.In the event a party fails or neglects to comply with these orders or fails to appear when the matter is listed on 24 April 2024, the Court may determine the proceeding in the absence of that party.
(Emphasis in original)
I am unaware of any of the reasons provided by the judge of Division 2 in support of the s 102NA order made on 21 March 2024. Consequently, I am unaware of the bases upon which the judge proceeded to make the discretionary order on that day when the matter had not been listed for trial.
The ICL identifies that there is no evidence as to the availability of the s 102NA scheme in New South Wales for non-residents of that state, let alone residents of another country, who are not attending the trial personally. No party at the hearing before me asserted to the contrary.
The order made on 21 March 2024 is an interlocutory order.
The mother opposes an order setting aside the s 102NA order made on 21 March 2024 for reasons outlined in her written and oral submissions. She concedes that her contentions as to significant physical and emotional violence and coercive control are historic, occurring over 11 years ago. She remains very fearful of the father.
Neither party has been convicted of, or is charged with, an offence involving violence or threat of violence to the other. There is no family violence order of a final or interlocutory nature in place which applies to either of the parties. There is no injunction under ss 68B or 114 of the Act for the personal protection of either of the parties directed toward the other.
There is no independent documentary evidence adduced of the violence alleged to be perpetrated by the father. This is not to minimise the fact or impact of the alleged violence. The allegations are for the most part historic. The most recent allegations are recorded in an affidavit of the mother filed in 2021. At their highest they centre on father making threatening comments by way of electronic communications. The father maintains an absolute denial that he has engaged in any act of family violence against the mother.
I accept the submissions of the mother that the relief prosecuted by the father, by way of his Initiating Application, providing for he to travel to Australia and spend time with the child is inconsistent with his contentions that he is unable to travel to Australia for the purposes of the trial hearing event. It beggars’ belief, if his submissions are accepted, how he would be able to meet the cost of the travel of the mother and the child to the USA to spend time with him. I am satisfied that in all the circumstances, and having regard to what is the pivotal issue in the proceeding, being the terms by which the father will spend time with the child, require, in the interests of justice, for the father to attend the trial process in person.
In circumstances where the father will not travel to Australia for the purposes of the trial, and where I have indicated that the father’s application to engage in the trial electronically will be declined, I am satisfied that the s 102NA order should be discharged.
The prospect of there being allegations of family violence, in circumstances where self‑represented litigants are required to cross-examine, or by cross-examined by, an alleged perpetrator of such alleged violence, is contemplated by s 102NB of the Act. That section provides that in circumstances where a s 102NA order does not apply, the Court must ensure that during any cross-examination (if it were to occur in this case), there would be appropriate protection for the person who is the alleged victims of family violence. In this case, that person is the mother.
I am confident that if necessary at trial, that measure could be put into place to ensure that the obligation of the Court pursuant to s 102NB is discharged, and to ensure there are appropriate protections for the mother during any cross-examination.
Again, I am comforted in the discharge of the s 102NA order in circumstances where it is my understanding, consistent with that submitted by the ICL, that the scheme will not fund the father in these circumstances.
For all the above reasons, I will make an order discharging the s 102NA order.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 April 2024
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