Wurth & Basa (No 3)
[2024] FedCFamC2F 241
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wurth & Basa (No 3) [2024] FedCFamC2F 241
File number(s): PAC 3992 of 2022 Judgment of: JUDGE STREET Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – PARENTING – interim hearing -orders permitting overseas travel vacated- with ability to reinstate- allegations requiring evidence under s67ZBB- adjourned for further interim hearing Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 23 January 2024 Place: Sydney Applicant’s Representative: Mannion Lawyers Respondent: Appeared in person Independent Children’s Lawyer: Osborne Lawyers 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:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 69ZW of the Family Law Act 1975 (Cth), the Department of Community Services and the NSW Police are to produce to the Court all records concerning the child, X, born 2013, arising from or relating to the child’s attendance at J Hospital on 20 January 2024 and in relation to any allegations of assault or sexual assault on or before 22 February 2024.
2.Leave is granted to the ICL to issue subpoenas to the persons or entities referred to in the J Hospital discharge report or whoever the ICL otherwise sees fit, and the subpoenas are returnable before this Court at 9:30AM on 22 February 2024.
3.Directs the respondent mother to file and serve an affidavit explaining the circumstances in which the child was taken to J Hospital and explain the nature of any allegation and the basis for the same on or before 7 March 2024.
4.The part heard matter is stood over in respect of the part heard application and is listed to commence at 10:00AM on 26 March 2024 in person at Garfield Barwick Commonwealth Law Courts, Building 1/3 George St, Parramatta NSW 2150.
5.Varies the provisional ADVO by permitting the applicant to attend court today in the presence of the child.
6.Varies the ADVO to permit compliance with the existing parenting orders provided the mother cooperates in doing so.
7.Both parties have leave to file and serve any case outline on which you wish to rely 7 days prior to the hearing.
8.Order 5 of the orders made 6 November 2023 are vacated and the child remains on the airport watchlist provided that if the respondent mother files an affidavit identifying that she is cooperating with the existing parenting orders and the child is spending time with the father, the Court will reinstate the orders made on 6 November 2023 in chambers.
THE COURT NOTES THAT:
A.The hearing on 26 March 2024, the court will consider if it shall proceed to determine the issues by the ICL and the applicant on an interim basis or whether the matter should await the final hearing in May.
B.The respondent mother has complied with the order made yesterday and has brought the child to court today.
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 proceedings that were commenced on 22 July 2022 and were fixed for a final hearing in relation to the child of the relationship, X, born 2013 by a listing judge in November of 2023 for final hearing in May 2024. The proceedings came back before this Court on 20 December 2023 because it was apparent that the parenting orders made on 28 September 2022 were not being complied with. The Court, on that occasion, was informed by the respondent mother that she would participate with the parenting regime in respect of her child, and a slight variation was made to those existing parenting orders.
On 5 January 2024, an affidavit was filed by the father identifying that there had been a failure to comply with the Court’s existing orders. The Court made orders on 5 January that it would relist the matter before 22 February and would take into account any makeup time consistent with complying with the orders by the mother. The matter came before the Court on 22 January initially by video link, and the Court, at that stage, indicated it wished the mother to attend with the child at 2.30pm. The mother did not attend on that occasion, apparently informed by a police officer that she should go home. The observation by the police officer was completely inconsistent with an existing order of this Court. It was a potential contempt of the Court.
The police officer was informed by email that it was a potential contempt of Court to interfere in Court process. It was completely inappropriate for the police officer to interfere in the administration of justice by this Court in a parenting matter by telling the mother not to comply with an existing court order of which police officer was aware was a potential contempt. It is the type of matter that could give rise to the Court bringing the police officer before the Court to consider a charge of contempt, however, in all the circumstances, the Court does not propose to do so.
The matter proceeded then on a basis that the mother had not appeared, and the Court heard further evidence and received further evidence in respect of the proceedings. That evidence gave rise to the matter being stood over to today, and the Court made an order for attendance by the mother and child today. To the mother’s great credit, she complied with that order and has attended today with a child. At the commencement of the hearing, the Court explained to the child that these are parenting proceedings, in which the Court is concerned simply with what is in her best interests. The Court explained to the child the importance of a relationship with each parent and the benefit that she may derive from the same.
The Court has, however, received a document, which has been marked exhibit E that has engaged the obligations of the Court under section 67ZBB(2) of the Family Law Act 1975 (Cth) (“the Act”). As a result of that document, the Court has made orders standing the proceedings over to 26 March 2024 and made orders under section 69ZW of the Act for the production of relevant material and granted leave to the ICL to issue further subpoenas. The Court also explained to the respondent mother the importance of complying with the parenting orders and the impact upon the respondent mother of a failure to do so in the Court’s potential assessment of her parenting capacity. The Court explained to the mother that the parenting capacity concerns the ability of a parent to meet the emotional, physical and intellectual needs of the child. The Court explained that not complying with parenting orders may indicate a want of capacity. The Court also expressed concern about the child being taken to J Hospital and the timing of the same.
The mother identified briefly the circumstances in which she failed to attend the Court yesterday being the advice of the police officer, and whilst it was entirely unsatisfactory of the police officer, the mother’s explanation is one that the Court regards as satisfactory. It is, as the Court has indicated, greatly appreciated that the mother has attended with the child. The Court indicated that it would not make any order today requiring the child to be physically handed over to the father. The Court did, however, make orders that facilitated, if the mother was willing to cooperate and do so, the child spending time with the father commencing after leaving court. If the mother does not wish to do so, that will be a matter that will, no doubt, be taken into account either at the interim hearing if it proceeds on 26 March 2024 or at the final hearing in May.
The Court also made orders facilitating the filing of an affidavit explaining the relevant subject matter under section 67ZBB of the Act by the mother and also giving the parties and ICL an opportunity to put on a further case outline in relation to the subject matter. It is also the case that a judge of this Court made orders on 6 November 2023 that permitted the mother to take the child overseas to a country that is not a Hague Convention country over the opposition of the ICL. It is not apparent from any material before the Court that it was drawn to that judge’s attention the existing non-compliance with the parenting orders that were then in place. Even if it was drawn to the judge’s attention, the Court assumes that it was conveyed that there would be compliance with those existing parenting orders.
To permit the respondent to travel overseas with the child when she is currently not complying with the existing parenting orders is not a step that should be lightly taken. First and foremost, because what it conveys is an inability of the relevant party to comply with Court orders. Going to a country which is not a Hague Convention country is not one where this Court can ensure compulsion of return of the child. This Court has now decided that it is in the best interests of the child that she should not be allowed to travel overseas with the applicant mother when the applicant mother is in breach of existing court orders and has been in breach of those orders for a very substantial period of time. This is not the decision of the father or the ICL. It is the Court that has decided that it is inappropriate to permit the mother to travel to a non-Hague Convention country in circumstances where she is continuing to not comply with existing parenting orders.
The Court did facilitate the potential compliance, if the mother seeks to do so, by way of reinstating the orders that required a bond to be provided by the mother so as to travel overseas if the mother files an affidavit identifying that she has decided to cooperate with the existing parenting orders and that the child is now spending time with the father. The respondent mother suggested that this was a matter that required her to choose between her father and the child. That is a quite inappropriate and incorrect statement by the respondent. It is the respondent who has chosen not to comply with the existing parenting orders. It was the respondent’s obligation to comply with them. It is the respondent’s conduct that has given rise to the Court having to revisit the orders that were made on 6 November 2023. It is the respondent’s conduct in terms of a willingness or not to cooperate that dictates whether those orders will remain vacated. The Court has taken into account the principles under section 60B and in section 60ZM and the paramount consideration being the best interests of the child. The Court is satisfied that the orders that it has made today are in the best interests of the child.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 26 February 2024
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