MORA & WORLEY (No.2) - [2019] FCCA 3938

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORA & WORLEY (No.2)

[2019] FCCA 3938

Catchwords:
FAMILY LAW – Parenting proceedings - due process – whether Respondent has had reasonable opportunity to participate in proceedings - failure of Respondent to provide full and proper instructions – child experiencing serious neglect constituting abuse in Mother’s care – allegations of drug abuse – child exposed to family violence when in care of the Mother – circumstances where both parties have historically acted unilaterally in the removal of the child – impact of Mother’s mental health issues upon child – unacceptable risk – circumstances where child cannot safely practice a relationship with Mother – circumstances where equal shared parental responsibility is not in the child’s best interests – need to protect child from neglect prioritised over consideration of relationship – where parents do not have capacity to implement arrangement for equal or substantial and significant time – where relief sought seeks change of child’s name.

Legislation:

Family Law Act 1975 (Cth): ss.4; 4AB; 60B; 60CA, 60CC; 61DA; 65DAA; 65DAC; 68P; 102NA; 117; 121
Federal Circuit Court Rules 2001 (Cth): r 16.05

Cases cited:

Gordon & Gordon [2015] FamCA 616
Allesch v Munch (2000) 203 CLR 172
Harris v Caladine (1991) 172 CLR 84
B & B (1993) FLC 92-357
M & M (1998) 166 CLR 69
Harper & Harper [2016] FCCA 1603
Re R Children’s Wishes [2000] FamCA 43
Mazorski & Albright [2007] FamCA 520
Johns v Jasapas [2016] FamCA 471
Harrison v Woollard (1995) FLC 92-598
Burton & Churchin & Anor [2013] FamCAFC 180

Other sources:

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant:

MR MORA

Respondent:

MS WORLEY

File Number:

CAC 420 of 2015

Judgment of:

Judge Harman

Hearing date:

30 September 2019

Date of Last Submission:

30 September 2019

Delivered at:

Canberra

Delivered on:

30 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms Haddock

Solicitors for the Applicant:

Alliance Legal Services

Counsel for the Respondent:

Dr Behrens

Solicitors for the Respondent:	Snedden Hall and Gallop
Solicitors for the Independent Children’s Lawyer:	Ms Orczykowski of Boland Legal Family Lawyers

ORDERS

Counsel for the Respondent Mother Ms Worley informs the Court that she does not have sufficient instructions from her client and accordingly seeks leave to withdraw.
Counsel for the Respondent be granted leave to immediately withdraw.
All prior parenting Orders with respect to the child X (born: in 2011) be discharged.
The Applicant Father Mr Mora shall have sole parental responsibility for the child X.
Mr Mora is to notify Ms Worley by email of any major medical emergency concerning the child.
Ms Worley shall be permitted to send letters (no more than 4 times per year), birthday cards, birthday presents, Christmas cards and Christmas presents to X and for the purpose of this order Ms Worley shall post any letters, birthday cards, birthday presents, Christmas cards or Christmas presents to a PO Box nominated by Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MORA & WORLEY (No.2)

Details

AGLC: MORA & WORLEY (No.2) [2019] FCCA 3938
Case: [2019] FCCA 3938
Decision Date: 30 September 2019

CaseChat Overview and Summary

This case concerned parenting proceedings before Judge Harman in the Federal Circuit Court of Australia. The applicant father, Mr Mora, sought orders concerning the child X, born in 2011. The respondent mother, Ms Worley, was represented by counsel who informed the court that they lacked sufficient instructions from their client and sought leave to withdraw. The dispute involved allegations of serious neglect and abuse of the child in the mother's care, including drug abuse, exposure to family violence, and the impact of the mother's mental health issues.

The court was required to determine whether the respondent mother had been afforded due process and a reasonable opportunity to participate in the proceedings, given her counsel's inability to obtain instructions. Furthermore, the court had to consider the best interests of the child, specifically whether equal shared parental responsibility was appropriate, and whether the child could safely practice a relationship with the mother. The court also had to address the applicant father's request for sole parental responsibility and the change of the child's surname.

Judge Harman reasoned that the circumstances presented an unacceptable risk to the child, prioritising protection from neglect over the consideration of the relationship with the mother. The court found that neither parent had the capacity to implement arrangements for equal or substantial and significant time. Consequently, the court granted leave for the respondent mother's counsel to withdraw, discharged all prior parenting orders, and made orders for the applicant father to have sole parental responsibility for the child. The court also permitted the father to change the child's surname and significantly restricted the mother's contact with the child, allowing only for the sending of letters and gifts via a nominated PO Box, subject to the father's examination. The court also made orders regarding the reimbursement of costs incurred by the Independent Children's Lawyer and provided a limited window for the respondent mother to apply to re-list the matter with an affidavit explaining her non-appearance at the final hearing.

Orders

Orders of the court

Counsel for the Respondent Mother Ms Worley informs the Court that she does not have sufficient instructions from her client and accordingly seeks leave to withdraw.

Counsel for the Respondent be granted leave to immediately withdraw.

All prior parenting Orders with respect to the child X (born: in 2011) be discharged.

The Applicant Father Mr Mora shall have sole parental responsibility for the child X.

Mr Mora is to notify Ms Worley by email of any major medical emergency concerning the child.

Ms Worley shall be permitted to send letters (no more than 4 times per year), birthday cards, birthday presents, Christmas cards and Christmas presents to X and for the purpose of this order Ms Worley shall post any letters, birthday cards, birthday presents, Christmas cards or Christmas presents to a PO Box nominated by Mr Mora and Mr Mora shall be at liberty to examine such items and shall provide the appropriate ones to X.

Except as provided for in these Orders, there shall be no other face-to-face contact between Ms Worley and child X.

Mr Mora shall be at liberty, as the person with sole parental responsibility for X, to change X’s surname to ‘X’.

In furtherance of Order 7 herein, Mr Mora is at liberty to do all things, sign all documents and give all consents, authorities and instruction as are necessary, without the need of recourse to any other person, to complete an Application and cause the processing of that Application for the issuing of a new birth certificate for the child X with the name ‘X’.

10.

Within 28 days of the date of these Orders, being by 28 October 2019, the Respondent Mother Ms Worley is to pay the sum of $700 to the Independent Children’s Lawyer in reimbursement of the costs incurred by the Independent Children’s Lawyer in funding the Respondent Mother’s hair follicle testing and, if the Respondent Mother Ms Worley does not pay that sum by 28 October 2019, interest will then accrue thereupon at the rate prescribed by the Federal Circuit Court Rules 2001 and the Independent Children’s Lawyer shall be entitled to commence proceedings in a Court of competent jurisdiction for recovery of that sum together with interest and costs of enforcement.

11.

The Independent Children’s Lawyer’s appointment be discharged.

12.

By 4:00pm on 23 October 2019, Ms Worley may, pursuant to Rule 16.05 Federal Circuit Court Rules 2001, make an Application to re-list and re-open this matter, provided that:

13.

Any such request is made by email directly to Associate.JudgeTonkin@federalcircuitcourt.gov.au, and that request is to be in accordance with Federal Circuit Court protocols with respect to communication with Chambers; and

14.

At the time of making such a request, Ms Worley shall file and serve an Affidavit explaining her non-appearance at the Final Hearing.

15.

All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting Hearing.

16.

At the expiration of the appeal period and absent any appeal having been filed all and any material produced on subpoena or produced to the Court pursuant to s.69ZW Family Law Act 1975 order shall be returned to the person who produced that material or, if so requested, securely destroyed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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