Wurth & Basa (No 6)
[2025] FedCFamC2F 1029
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wurth & Basa (No 6) [2025] FedCFamC2F 1029
File number(s): PAC 3992 of 2022 Judgment of: JUDGE STREET Date of judgment: 25 July 2025 Catchwords: FAMILY LAW – Summary decree – s 102QAB - no reasonable prospect of orders other than those identified – no time or communication other than in accordance with the child’s wishes. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 25 July 2025 Place: Sydney Solicitor for the Applicant: Ms A Younan 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:
25 JULY 2025
THE COURT ORDERS THAT PURUSANT TO SECTION 102QAB:
1.All earlier parenting orders are discharged as final orders.
2.The child X, born in 2013, live with the mother.
3.The mother have sole parental responsibility for all major long term decisions in relation to the child X, born in 2013.
4.The child spend time with and communicate with the father in accordance with her wishes.
5.Pursuant to s11(1)(b) of the Australian Passports Act 2005 (Cth) the mother be solely authorised to obtain and renew an Australian passport for the child.
6.The child’s name is to be removed forthwith from the airport watch list.
7.The mother is permitted to travel with the child outside the Commonwealth of Australia.
THE COURT ORDERS THAT:
8.The Court declines to make any costs order in favour of the Independent Children’s Lawyer under s 114UC of the Family Law Act 1975 (Cth).
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 are currently parenting proceedings that were originally commenced as parenting and property proceedings on 22 July 2022 between the applicant father (“the father”) and the respondent mother (“the mother”). There is one child of the marriage, X, born in 2013 (“The child”). The property proceedings were resolved on 7 May 2024. The matter came before the Court today in circumstances where on the last occasion, the Court identified on 29 November 2024 that there were criminal proceedings on foot involving allegations between the child as victim and the father of a serious kind and that there may come a time when the Court will have to consider whether the proceedings might be characterised as potentially vexatious.
The matter has come back before the Court this morning, and the Court has been informed by the Independent Children’s Lawyer (“ICL”) that the trial is continuing. The Court raised whether this may be an appropriate matter in which to exercise the Court's powers under s102QAB of the Family Law Act 1975 (Cth) (“the Act”) for the purpose of making summary orders in accordance with the mother's amended response filed on 14 March 2025 in respect of orders 1 to 6.
The ICL supported the making of orders of that kind and identified that the child's views are consistent with the proposed orders, including the child's desire to travel overseas. The Court identified that it will treat as being before it for the consideration of the powers under s 102QAB of the Act the affidavit material that has been filed in the proceedings. The Court does not propose to summarise that affidavit material beyond identifying the tragedy of the serious criminal proceedings involving allegations between the child as victim and the father. What the Court identified on the last occasion was the almost inevitable result that there could be no other order than that the child communicate with or spend time with the father in accordance with her wishes, given the child's age and the seriousness of the allegations, regardless of the outcome of the trial.
The Court is mindful of the principles in s 43 of the Act and also the objects in s60B of the Act under pt VII and the principles in s 102NE of the Act, in particular, principle 1. The Court is mindful of the caution to be exercised in relation to the summary process in s 102QAB and the clarity required that there is no ready arguable case. The Court is of the view that this is a case where it is not in the best interests of the child to continue to expose the child to the impact of these parenting proceedings where the outcome is one where there is no reasonable prospect of orders other than those identified by the mother in the amended response to which the Court referred. The Court has taken into account the requirements under pt VII in respect to the paramount consideration in relation to the best interests of the child in making parenting orders.
In circumstances where the child as victim has advanced serious allegations against the father, at an age where the child's views are ones that are relevant, it is difficult to conclude otherwise than that the proposed orders by the mother best promote the safety of the child and, in particular, the child's developmental, psychological and emotional needs. There is no issue that the Court regards as reasonably arguable that the mother has adequate parental capacity, and whilst the Court understands the desire of the father to have a relationship with his child, the age of the child is such that it is not safe to do so unless the child wishes to communicate with the father. The criminal proceedings are a very sad set of circumstances but give rise to there being no reasonably arguable case for orders other than the orders that were identified by the Court in the mother's amended response. To continue the proceedings in respect of this matter would be permitting, on one view, the pursuit of vexatious proceedings.
It was identified on behalf of the father that he did not oppose the orders in respect of the parental responsibility, live-with or the spending of time or communicating in accordance with the child's wishes but wished for an opportunity to send communications on significant days to the child and also wanted to receive school reports and opposed travel without receiving itineraries. Those orders were not supported by the ICL. Whilst the Court fully understands why the father might want that engagement, the reality is that making such orders provides a level of control and impact on the child that would not be in the child's best interests and creates a level of control and input by the father that could provide a risk of further psychological or emotional harm to the child who, at this stage, needs to be in control of any communication with the father.
The Court in these circumstances has also taken into account that there is no reasonable prospect in this case of orders other than the orders that have been identified. The fact that the mother has sole parental responsibility means that the mother should be allowed to travel overseas as the child wishes to do so. The father identified a risk of the mother not returning. The Court is not persuaded that there is such a real risk, and the orders for travel were supported by the ICL. While there may be circumstances in which a matter involving such a criminal trial should be allowed to remain on foot, taking a child-focused approach to these proceedings, the Court is satisfied that permitting that to occur in this case creates a real and likely [….] risk of further emotional and psychological harm to the child such as warrants the Court's exercise of its powers under s 102QAB of the Act.
Accordingly, for these reasons, the Court is satisfied that it is in the best interests of the child to make 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: 30 July 2025
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