Wurth & Basa
[2023] FedCFamC2F 1711
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wurth & Basa [2023] FedCFamC2F 1711
File number(s): PAC 3992 of 2022 Judgment of: JUDGE STREET Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – PARENTING – outstanding contravention application – failure to comply with parenting orders – reasonable excuse – willingness to comply with parenting orders – minor variation. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 20 December 2023 Solicitor for the Applicant: Mannion Lawyers Respondent: Appeared in Person Independent Children’s Lawyer: Osborne Legal ORDERS
PAC 3992 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WURTH
Applicant
AND: MS BASA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
20 DECEMBER 2023
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Parenting
1.Order 4 and Order 7 of the Orders dated 28 September 2022 are suspended for the duration of the 2023 Term 4 Christmas holiday period, being the period commencing Wednesday 20 December 2023 and concluding Monday 29 January 2024.
2.Order 5 (i) and Order 5(ii) of the Orders dated 28 September 2022 are suspended for the 2023 Christmas period.
3.During the 2023 Christmas School Holiday period the child X born in 2013 (“the child”) shall spend time with the father as follows: -
(a)From 10am Saturday 23 December 2023 until 12.30pm on Monday 25 December 2023;
(b)From 5pm Friday 5 January 2024 until 5pm Sunday 7 January 2024; and
(c)From 5pm Friday 19 January 2024 until 5pm Sunday 28 January 2024.
4.Changeover during the 2023 Christmas School Holiday period shall occur at City C McDonalds at B Street, City C.
5.The child shall communicate with the father each Tuesday between 5.00pm and 6.00pm by way of video call via the Our Family Wizard Parenting App.
6.The mother and the father shall communicate with each other in relation to all parenting issues using the Our Family Wizard Parenting App and to enable this the following process shall occur: -
(a)Within 24 hours of the date of these Orders, the father shall set up a paid subscription to the Our Family Wizard Parenting App and create an account;
(b)The father shall send an invite by email to … to the mother to join the Our Family Wizard Parenting App account that he created; and
(c)Within 24 hours of receiving the invitation to join the Our Family Wizard Parenting App account created by the father, the mother shall set up a paid subscription to the Our Family Wizard Parenting App and shall join the account.
7.Order 2 of the Orders dated 28 September 2022 are suspended.
8.The child will spend time with the father during school terms as agreed between the parties and failing agreement on a once a fortnight cycle per month as follows:
(a)Commencing Friday 2 February 2024, and continuing each fortnight thereafter, from after school Friday until 4.00pm Sunday, with the father to collect the child from D School at the conclusion of school on Friday and with the father returning the child to the mother at City C McDonalds at B Street, City C at the conclusion of the time.
(b)Commencing Saturday 17 February 2024, and continuing each fortnight thereafter, from 10.00am on Saturday until 4.00pm on Sunday, with the mother to deliver the child to the father at Suburb E McDonalds at F Street, Suburb E at the commencement of the time period and with the father to deliver the child to the mother at Suburb E McDonalds at F Street, Suburb E at the conclusion of the time.
(c)This fortnightly cycle is to be suspended during the period that the child is taken overseas in accordance with the Orders made and dated 6 November 2023 and the fortnightly cycle from Order 8a is to recommence on Friday 22 March 2024 and provided further if no overseas travel occurs the regime will continue as set out in Order 8a and 8b.
9.The parties have liberty to relist the matter on 72 hours’ notice in the event of non- compliance.
Procedural and Timetable
10.The contravention application filed 15 August 2023 is dismissed.
11.Order 3 made on 15 November 2023 is varied so that the 4-day hearing is held via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
12.Order 4 made on 6 February 2023 is vacated.
13.Orders 4 – 6 and the second set of orders 5 – 11 (under heading Trial Directions) dated 15 November 2023 are vacated.
14.The applicant is directed to file and serve an amended application and consolidated trial affidavit and any other affidavit evidence together with an updated financial statement on or before 29 February 2024.
15.The respondent is directed to file and serve an amended response and consolidated trial affidavit and any other affidavit evidence together with an updated financial statement on or before 25 March 2024.
16.The parties are directed to file and serve an agreed balance sheet identifying any items in dispute on or before 8 April 2024.
17.The applicant file and serve a case outline on or before 15 April 2024.
18.The respondent file and serve a case outline on or before 22 April 2024.
19.The ICL file and serve a case outline on or before 29 April 2024.
20.Leave is granted to the parties, including the ICL, to provide any proposed tender bundle material to chambers via email or provide a USB stick.
21.A friend of the respondent mother is to be permitted to attend on the premises, G Street, Suburb H, on 27 December between 9:00AM-5:00PM to collect and remove the items identified by the applicant as items that the respondent may take.
22.The respondent is not to attend the property on that occasion.
23.No subpoena is to be issued by the respondent without the leave of the Court.
24.The application in a proceeding dated 24 November 2023 is otherwise dismissed.
25.Leave is granted to the ICL to produce more than five (5) subpoenas.
26.Photocopy access is granted to the parties, including the ICL, subject to any proper notice of objection.
27.The court declines to make any costs order in respect of the application in a proceeding dated 24 November 2023.
THE COURT NOTES THAT:
A.By reason of order 7 made on 15 November 2023, the parties are entitled to Legal Aid representation at the final hearing pursuant to Commonwealth funding.
B.If either party is unpresented at the final hearing because of the order under s 102NA, they will not be permitted to cross-examine the other party.
C.If the parties have failed to comply with the above orders or fail to appear at the final hearing, the matter may proceed as an undefended hearing.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting and property proceedings that were commenced on 22 July 2022 and were fixed for a final hearing on 15 November 2023. Most unfortunately, it must not have been drawn to the listing Judge’s attention that there was an outstanding application for contravention that had not been the subject of orders for dealing with the same. In fact, on the Court file, the Court can see no formal order, notwithstanding the fact the Court has been informed, and correctly so, that it was listed before another judge of the Court from Melbourne for hearing tomorrow and the next day.
This Court relisted the matter for appropriate directions to ensure that the existing parenting orders, or a version appropriately amended, were in place so that the father has meaningful and significant time prior to the hearing. There were parenting orders in place, but as a result of an incident where the child received an injury, the respondent mother unilaterally ceased compliance with the existing parenting regime. This was also a factor that should have been addressed prior to the fixing of the matter for a final hearing.
After looking at the material that had been filed, the Court raised at the outset this morning with the parties that this was a matter where the existing parenting orders were ones that should be complied with, and the ICL supported that position. The Court identified that there should be a very brief graduated return, given the father has not seen the child since approximately January 2023 or been communicating with the child.
The Court identified that if relevant agreement could not be achieved, the Court would proceed to hear the contravention application. It became unnecessary to determine the contravention application because the respondent mother identified a level of insight to prioritise the best interests of her daughter to resume the parenting regime that had been earlier identified, subject to a short, graduated return.
There were some minor issues raised in respect of a brief suspension for overseas travel pursuant to some orders made by another judge of the Court. It was not necessary for this Court to revisit those travel orders, which require a security deposit to facilitate the overseas travel to a non-Hague Convention country in respect of a travel itinerary that has the child away for three weeks.
The Court raised with the respondent mother its concern that a failure to comply with interim parenting orders is a matter that impacts on the Court’s assessment as to the parenting capacity of a relevant party and that, in appropriate circumstances, the Court can and may engage in considering what variation should be made to the existing parenting orders, including change of residence. After raising these issues, the ICL and the parties had discussions, and there was substantial proposed agreement in respect of interim parenting orders.
There were minor issues raised in respect of whether or not there should be a weekly time spent by the child with the father. The Court has referred to the family report that recommended fortnightly. The ICL supported fortnightly. Whilst the Court appreciates the very unsatisfactory position that has existed until today since January of this year, it is apparent that the respondent mother has understood the importance of ensuring that she complies with the parenting regimes, from the observations she has made, and has indicated her willingness to comply with these orders that put in place, effectively, the parenting regime that was in place, taking into account the recommendations of the family report, so that they would be fortnightly. The father suggested it should be weekly. That would deprive the mother of the benefit of having a weekend with the child and does not reflect what was said by the family report writer, and without expressly referring to each of the factors in section 60CC of the Family Law Act 1975 (Cth), which the Court has considered, the Court is satisfied that it is not in the best interests of the child for there to be weekly time being spent with the father, assuming compliance with the now made parenting orders.
The parties do not live as close to each other as might be desirable for travel time for the child, and it is the position that there was a greater distance before, by reason of which the parties had alternate regimes for pick‑up and drop‑off, facilitating different locations. The applicant father wanted to make it consistent, in relation to the school term, and whilst there was some force in the logic of that, the mother was desirous of maintaining the alternate regime on a fortnightly basis. The Court is satisfied that an alternate regime is in the best interests of the child, given that the child is still in a position where she has a relationship, not just with the mother, but also her other siblings, and to remove the child from the proposed regime, in terms of alternate time, would diminish the time that is being spent by the child with the mother and her family.
An issue was raised as to suspension of time as a result of the overseas travel, and the Court has accommodated a proposed suspension for the purpose of that overseas travel, assuming that takes place. A request was made for there to be make‑up time. The Court indicated that any make‑up time issue can be raised at the final hearing. An issue was raised as to whether the contravention application should be stood over or whether some other order should be made in relation to the issues concerning it. The Court has looked at the material filed, and it is apparent that there is a reasonable argument of reasonable excuse on the material in the circumstances where the child came back with an undisclosed incident involving a fracture to her arm.
That does not justify the full extent of what I will call the continuing failure to have implemented again the parenting regime, but the Court observes that the Court itself appears to have been dilatory in ensuring that prompt attention was given to the contravention application and ensuring that an appropriate parenting regime was immediately put back in place for the benefit of the child. The Court does not regard the whole of the delay as one that should be attributed to the respondent, and that is not a criticism of the applicant either. It is most unfortunate that it was not properly and promptly relisted following the family report for the hearing of an obvious issue that had already arisen, and that family report was available in April 2023, identifying non‑compliance and continuing contravention admitted by the respondent mother. It should have been the subject of prompt relisting.
It is in these circumstances that the Court is satisfied it is appropriate to make the parenting orders, albeit they are not all made by consent. The Court has also made orders dealing with an interlocutory application that was filed concerning access to a property that is the subject of orders for sale. Orders were made to facilitate access to that property which were more than adequate to permit the removal of any personal items. Notwithstanding that, the Court has been informed that there are remaining items that are in a garage that can be collected. The Court does not propose to permit the respondent to return to the premises in order to avoid any risk of conflict between the parties. Rather, the Court has facilitated the ability for someone to attend on 27 December 2023 to collect what might be in the garage, which otherwise, no doubt, will be sent to the tip.
Another issue is raised in the application relating to a subpoena to police. The applicant acknowledged that the purpose of that subpoena was so that she could pursue a complaint against the police. That is an improper purpose and an abuse of process. As a result of that, the Court has made an order that the respondent is not to issue any subpoena without the leave of a Judge of the Court. The Court has then revisited the procedural trial orders that were made by the Chief Justice, so as to remove the necessity for babysitting, and so as to facilitate the hearing being by video and audio link. That solves a number of the issues that might have arisen between the parties. It also means the matter can be dealt with efficiently by Teams. It is for these reasons the Court made the orders that are now being published.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 22 January 2024
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