WU & HUANG

[2014] FCCA 393

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU & HUANG [2014] FCCA 393

Catchwords:
FAMILY LAW – Children – Parenting Orders.

PRACTICE & PROCEDURE – Affidavit by child – where no order made permitting child to swear affidavit – affidavit must not be read. 

Legislation:

Family Law Act 1975 (Cth), ss.69ZV, 100B

Applicant: MR WU

Respondent: MS HUANG

File Number: SYC 7889 of 2009

Judgment of: Judge Scarlett

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Sydney

Delivered on: 3 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Chen

Solicitors for the Applicant: Phoenix Attorneys

The Respondent: No appearance

ORDERS

1. The Application is re-listed to Tuesday 8 April 2014 at 10:00 am before Judge Scarlett in Court 3A, Level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

2. The Applicant is granted leave to amend the return date on the service copies.

IT IS NOTED that publication of this judgment under the pseudonym Wu & Huang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7889 of 2009

MR WU

Applicant

And

MS HUANG

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of a child aged 15 years seeking orders that the child should live with him and not be returned to the care of his mother. The Father claims that the Mother has beaten the child so badly that he had severe bruising over his body.

2. The Application has not been served.

Affidavit by child

1. It is a matter of concern that one of the affidavits upon which the Father seeks to rely in support of his case is an affidavit by the child himself. There has been no order by this Court permitting the child to swear the affidavit.

2. There is a clear breach of section 100B of the Family Law Act 1975 (Cth), which states:

   100B(1)A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

   100B(2)A child must not be called as a witness in, or be present during proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

   100B(3)    In this section:

   child means a child under 18 years of age

3. The affidavit of the child was prepared without an order of this Court, so it will not be read or otherwise relied upon.

4. If a party seeks to rely on a representation made by a child about a relevant matter, the party may do so by complying with section 69ZV of the Act.

Adjournment

1. The Application will be re-listed to Tuesday 8 April 2014 to allow the Applicant Father time to locate the Respondent and arrange service.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  4 March 2014