Wurth & Basa (No 2)
[2024] FedCFamC2F 234
•22 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wurth & Basa (No 2) [2024] FedCFamC2F 234
File number(s): PAC 3992 of 2022 Judgment of: JUDGE STREET Date of judgment: 22 January 2024 Catchwords: FAMILY LAW – PARENTING – non-appearance as ordered - interim hearing - further order for attendance with child Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 7 Date of hearing: 22 January 2024 Place: Sydney Applicant’s Solicitors: 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:
22 JANUARY 2024
THE COURT ORDERS THAT:
1.The matter proceed in the absence of the respondent pursuant to r15.19(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2.The matter is stood over, part heard, until 10:00AM on 23 January 2024 at the Federal Circuit and Family Court of Australia, Parramatta Registry, Garfield Barwick Building, at 1/3 George Street, Parramatta NSW.
3.The respondent mother attend in person, with the child, X, born 2023, at the Federal Circuit and Family Court of Australia, Parramatta Registry, Garfield Barwick Building, at 1/3 George Street, Parramatta NSW at 10:00AM on 23 January 2024.
4.Order 2, made on 22 January 2024, in the morning is varied to require the respondent to hand over the child to the father and deleting the reference to child services officer.
THE COURT NOTES THAT:
A.The respondent mother failed to attend Court at 2:30pm today and the court has marked as exhibits, the applicant’s tender bundle as well as the email from the respondent sent today concerning the 2:30pm hearing, the email today from the Department of Community Service and an email today from a police officer and the Court’s response to that email.
B.The Court has treated the annexures to the affidavits as being in evidence and the four recordings, emailed by the respondent concerning handover, have been marked as an exhibit.
C.The matter is part heard and the court intends to make orders at the conclusion of the hearing.
D.The court may also make a recovery order pursuant to s67Q of the Family Law Act 1975 (Cth) if the respondent mother fails to attend Court with the child.
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 22 JANUARY 2024
JUDGE STREET
These are parenting proceedings that commenced on 22 July 2022, concerning a child almost eleven, being X, born 2013. The proceedings were fixed for a final hearing to take place in May, the result of orders made in November. When the orders were made in November, no attention was given to the outstanding contravention application or the fact that there were existing parenting orders in respect of which the respondent is non-compliant. The matter was relisted before this Court and on 20 December 2023, this Court made parenting orders facilitating the spending of significant time by the father with the child prior to the hearing, consistent with recommendations in the family report.
An affidavit was then filed by the father identifying, on 28 December 2023, that the mother had not complied with the existing orders. The Court then made further orders on 5 January 2024, requiring relevantly the respondent mother to file an affidavit fully explaining the failure to comply with the existing orders and non-compliance on 12 January 2024. Numerous affidavits were filed by the applicant mother to explain the failure to comply with the existing court orders. The Court was also sent, by the mother, four audio recordings and all that material being received into evidence by the Court.
Given that this is an interim hearing, it is not necessary that the Court at this stage to make actual findings. The Court stood the matter down to 2.30 pm in the hope that the mother would attend, consistent with an order made by this Court, for the purpose of commencing the time with the father under the existing parenting orders that should have commenced on or before 19 January 2024. The respondent foreshadowed that she would attend at 2.30pm and said that she “keeps her promises” and that she would attend with the child. The matter was stood down to accommodate the attendance by the with the child at the Court. In the interim, it appears that the mother has activated and pursued a complaint against the father, involving an allegation of alleged sexual assault concerning the child and the father.
No such complaint is apparent in any of the affidavit material that has been filed by the mother or the family report. The mother apparently made contact with a police officer to try and obtain an ADVO, interfering with the appearance by the mother before the Court. The police officer apparently told the mother not to attend the Court, and the Court received an email that the police officer was seeking to pursue an ADVO. The Court sent an email outlining its concern in respect of the interference in its process, constituting a potential in contempt and inviting the police officer to bring to any person to whom an application for an ADVO is made that email.
The conduct of the mother in trying to prevent the parenting orders that were to be made this afternoon is deeply troubling. There has also being tendered into evidence a tender bundle by the applicant, the applicant’s affidavit and all the affidavits of the respondent filed on 1 January 2024, including annexures and also recordings, that the mother made at the time another attempt at handover of the child. The Court has listened to the recordings, which clearly identify the mother impeding compliance and elevating the circumstances by engaging in the recording process, inappropriately increasing the emotional concern and stress upon the child.
Prior to attending the hearing today, the mother, with the child, attended J Hospital in an endeavour to have the child assessed as to the mental health of the child and included in that appears to have been allegations that generated, a referral to a sexual assault service from J Hospital. These steps taken by the mother are deeply concerning in relation to her capacity to discharge her parenting obligations. The Court will determine tomorrow morning what orders should be made in relation to the further interim parenting of the child, pending the final hearing in May. The ICL had, prior to seeing the email from the police officer, foreshadowed supporting a change of residence for the child and supervised time with the mother. There is no affidavit and evidence before this Court supporting any assertion of a sexual assault, nor is there any such evidence identified in the family report.
The steps taken by the respondent mother to interfere with the potential parenting orders to be made by this Court is a matter the Court will take into account in determining what parenting orders should be made tomorrow. The Court is, however, of the view that it is in the best interests of the child, that the Court make an order that the mother attend with the child so that whatever parenting order the Court makes can be implemented forthwith without the potential making of a recovery order which will only elevate the emotional stress and strain on the child if it is necessary to make such an order. The Court has taken into account the principles in section 60B and 60ZN of the Family Law Act 1975 (Cth) in the making of these orders and the paramount consideration which is the best interests of the child. The Court notes that these orders are being made at 3.45 and there still has been no appearance or attendance by the respondent the mother.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 26 February 2024
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