Wurth & Basa (No 5)
[2024] FedCFamC2F 1740
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wurth & Basa (No 5) [2024] FedCFamC2F 1740
File number(s): PAC 3992 of 2022 Judgment of: JUDGE STREET Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PROCEDURE – leave granted to the applicant to use the Family Report filed in these parenting proceedings for criminal proceedings Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Hearne v Street [2008] HCA 36
Patchell & Maddern [2024] FedCFamC2F 325
Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 29 November 2024 Place: Sydney Solicitor for the Applicant: Dr S Variyar of Mannion Lawyers Solicitor for the Respondent: Ms Y Swifte of Swifte Law Solicitor for the Independent Children's Lawyer: Ms M Osborne of 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:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave is granted to the Respondent to be relieved from the undertaking under r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in respect of the use of the Family Report by Ms K dated 17 March 2023 in the criminal proceedings that are on foot involving allegations by the child against the Applicant.
2.The report may only be used in the course of evidence in the committal proceedings and/or in the trial, albeit the admissibility of the report will be a matter for the relevant committal or trial Court.
3.The Family Report is not to be used other than for the limited purpose identified above in the said criminal proceedings.
4.The matter is fixed for Directions commencing at 9:30 am on 25 July 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
5.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
6.Leave is granted to the Applicant to discontinue these proceedings if he so wishes, without any adverse cost consequences on or before 28 February 2025.
THE COURT NOTES THAT:
A.The criminal proceedings have not yet reached the committal stage, and the Court has raised the issue if committal occurs as to the utility of the proceedings, and that there may come a time, where whether the proceedings should be continued will involve consideration of whether the proceedings might be characterised as potentially vexatious.
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).
Part XIVB of the Family Law Act 1975 (Cth) 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These parenting proceedings were commenced on 22 July 2022 in relation to the child X, born in 2012. There is before the Court today an application under r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the FCFCOA Rules”) for the use of material that has been subpoenaed in the course of the parenting proceedings in criminal proceedings currently on foot against the applicant father (“the father”) involving serious allegations in respect of the child. The material that is asked to be the subject of release solely for the purpose of the criminal proceedings identifies, a category of documents from (a) to (t), all of which have been obtained by subpoena.
The principles in relation to the release of material from the Hearne v Street [2008] HCA 36 obligation now contained in the FCFCOA Rules is found in Patchell & Maddern [2024] FedCFamC2F 325, and, in summary, the Court is considering whether or not there are special circumstances that warrant the release by the party from the obligation under the FCFCOA Rules. In the present case, it is apparent that the criminal proceedings obviously involve allegations by the child against the father.
The material identified in the application in paragraph 1(a) to (t) are all material that have been obtained under subpoena and would be capable of being obtained under subpoena if they were, in fact, relevant in the criminal proceedings. In those circumstances, the Court is not satisfied that there are special circumstances that warrant release from the undertaking in r 6.04 of the FCFCOA Rules in respect of the documents being sought in paragraph 1 of the application.
Paragraph 2 of the application seeks the release of the Family Report produced by Ms K on 17 March 2023. That is a report in respect of which there were interviews of both the respondent mother (“the mother”) and the child. While there may be different issues in respect of the admissibility of the report, there are obviously issues that might be raised in terms of what was or was not disclosed at the time of the preparation of the Family Report that might be said to impact on the issues to be determined in the criminal proceedings.
The Family Report is not one that could otherwise be obtained and used in other proceedings other than through this Court making an appropriate order for its release. The mere fact that there are criminal proceedings does not of itself establish special circumstances. The fact that both the child and the mother were interviewed in the Family Report does identify a potentially relevant issue in respect of what was or was not disclosed at the time of the Family Report and the Court is satisfied that the criteria for special circumstances is made out.
The Court still has a discretion to exercise. Ordinarily, a Family Report should not be released or used in other proceedings, and its creation is solely to assist the Court in determining the best interests of the child. There may be circumstances in which the Court may find that the potential forensic use of the Family Report is not one that is appropriate in the circumstances of a particular case.
The Court has taken into account the age of the child and that neither the mother or the Independent Children’s Lawyer oppose the production of the Family Report in the present case. In all the circumstances, as a matter of discretion, the Court is satisfied that it is appropriate to make an order under r 6.04 of the FCFCOA Rules in respect to the family report.
It is for these reasons the Court makes the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 5 December 2024
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