WORRALL and BARTLEY

[2024] FCWA 5

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WORRALL and BARTLEY [2024] FCWA 5

CORAM: O'BRIEN J

HEARD: 9 JANUARY 2024

DELIVERED : Ex tempore

FILE NO/S: 4789 of 2010

BETWEEN: MR WORRALL

Applicant

AND

MS BARTLEY

Respondent

Catchwords:

CONTEMPT - Where the Respondent mother failed to attend the sentencing hearing, having been ordered to do so - Warrant for arrest issued

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Penglis SC & Ms Watts
Respondent	:	No Appearance

Solicitors:

Applicant	:	O'Sullivan Davies Lawyers
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

[2023] FCWA 267

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worrall and Bartley has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court's reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Section 243 of the Family Court Act 1997 (WA) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1The hearing today was listed for the purpose of sentencing [Ms Bartley] ("the mother") after she was found guilty of contempt, having contravened orders made on 13 January 2023 in a manner which involved a flagrant challenge to the authority of the Court. The sentencing hearing was previously listed [in] November 2023. The relevant background and course of the contempt proceedings to date is set out in a judgment published that day, which I incorporate in these reasons.[1] The mother has not appeared today. The matter was stood down briefly in case she had been unavoidably delayed. My staff have telephoned both mobile numbers known to be used by the mother. In both cases the phones were switched off or not in service.

[1] [2023] FCWA 267.

2I note that:

(a)the mother did not appear at the hearing on [in] November 2023;

(b)on that day, the proceedings were listed to 2.15 pm today for a sentencing hearing, and the mother was ordered to personally attend;

(c)it was further ordered that if the mother sought to adduce any evidence relevant to the sentencing process or file any submissions she do so by 3 January 2024 ‑ she has not;

(d)the father was ordered to serve the orders made [in] November 2023, and the written reasons for judgment published, on the mother by registered post to her home address, and by email to her email address - both of those addresses appearing on the notice of address for service filed by the mother on 10 October 2023;

(e)I am satisfied based on the affidavit of service of [Ms X] filed 14 December 2023 that the orders and judgment were served on the mother by registered post and email on 12 December 2023;

(f)I am satisfied based on the affidavit of [Ms V] filed 14 December 2023 that the mother was separately notified by the father's lawyers on 1 December 2023 of the date and time of this listing, and that she was so advised by both registered post and email to the same addresses;

(g)I note the affidavit of [Mr Y] filed 8 January 2024 to the effect that when the father's FVRO application came on for a scheduled final hearing [in] December 2023 the mother did not attend the hearing, but was represented by a lawyer [Ms Z] of [Law Firm A]. Ms Z who tendered a medical certificate dated 1 December 2023 from [Dr AA] of the [Walk-in GP] in [Suburb D], the entire text of which was as follows:

This is to certify that [Ms Bartley] has a medical condition and will be unfit for work from 1/12/2023 to 31/12/2023 inclusive.

(h)on the strength of that medical certificate and the application for an adjournment made with it, the learned Magistrate adjourned the final FVRO hearing to 9:30 am [in] June 2024. The interim FVRO issued on 5 April 2023 remains in place, which no doubt influenced a consideration of the prejudice to the father of the adjournment.

3No medical certificate or similar has been tendered or forwarded to the Court on behalf of the mother today to explain her non‑attendance. Even were that not the case, and with no disrespect to the learned Magistrate, the medical certificate tendered at the FVRO hearing was of no probative evidentiary value. It simply stated that the mother was unfit for work for a particular period, and no more. It did not indicate that the mother suffered from any medical condition at all, let alone say how any such condition might hamper her participation in that hearing, or for that matter today's hearing.[2] For expert opinion evidence to carry any weight, or to even be admissible, the facts and assumptions underpinning the opinion and the expert's reasoning must be transparent.[3] Self-evidently, the certificate presented to the Magistrates Court does not even go close to that.

[2] See for example Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]–[50].

[3] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42], [91]–[101], [120]–[124] and [128]–[130].

4The reasons for decision published following the last hearing expressly drew to the mother's attention the fact that she had been ordered to personally attend at this hearing, that she would likely be found in contempt if she did not, and that a warrant for her arrest would likely issue if she failed to attend. As already noted, those reasons for decision have been served on the mother and thereby brought to her attention.

5I am comfortably satisfied that it is appropriate to adjourn the sentencing hearing for the shortest convenient period and issue a warrant for the mother's arrest to ensure her attendance at the adjourned hearing.

Orders

1.The proceedings are adjourned to 2.15 pm on Friday, 12 January 2024 for sentencing, and the determination of the Applicant father's application for costs.

2.A warrant issue for the arrest of the Respondent mother, Ms Bartley for her failure to attend Court pursuant to the orders made herein [in] November 2023.

3.The Respondent mother is to be remanded in custody and brought before the Court at 2.15 pm on 12 January 2024.

These reasons are the reasons for decision delivered on 9 January 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

10 JANUARY 2024