Lister and Conrad-Watts

[2008] FamCA 768

FAMILY COURT OF AUSTRALIA

LISTER & CONRAD-WATTS [2008] FamCA 768

FAMILY LAW  -  CHILDREN  -  Magellan  -  Police investigations in two States  -  Suspension of existing order for time.

Family Law Act 1975 (Cth)

FATHER: Mr Lister

MOTHER: Ms Conrad-Watts

INDEPENDENT CHILDREN’S LAWYER: Mr Webb

FILE NUMBER: MLC 8541 of 2007

DATE DELIVERED: 22 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 22 August 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr D.E. Whitchurch

SOLICITOR FOR THE FATHER: Heinz & Partners

COUNSEL FOR THE MOTHER: Mr. Testart

SOLICITOR FOR THE MOTHER: Cinque Oakley Senior

INDEPENDENT CHILDREN’S LAWYER

Mr. Webb

Saines & Partners

Orders

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Bennett and the Magellan Registrar on 12 December, 2008 at 10:00 am., with liberty to apply to the Magellan registrar to list the matter earlier. 

2. That until further order all orders for the father to spend time with the child C born … October, 2000 be suspended. 

3. That there be liberty to issue subpoena returnable on a Tuesday or Thursday at 9:30 am. 

4. That the reasons for judgment this day be transcribed and copies made available to the parties.

5. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

6. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Lister & Conrad-Watts is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8541 of 2007

MR LISTER

Father

And

MS CONRAD-WATTS

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case involves the parties’ child, C, who is nearly eight.  She has lived with her mother since her parents' separation in 2004, when she was very young.  Her mother lives in Victoria and her father lives in New South Wales.  The mother has four older children.  The father has at least one other child.

2. On 7 September 2005 final parenting orders were made, which provide for C to live with her mother and to have contact with her father during Victorian school holidays, plus some time during school terms.  A number of specific issues orders were made. 

3. This round of proceedings, if I can call them that, commenced when the father filed a contravention application in the Federal Magistrates Court on 30 July, 2007 alleging contravention of those orders.  He subsequently filed a form 1 application in October 2007, seeking variations to the parenting orders and to the travel arrangements contained in them.

4. On 26 May this year the mother filed a response, and affidavits from a number of her children from an earlier relationship.  The deponents range in age from 16 to 21.  In those affidavits each alleges that the father (their stepfather) sexually abused them, including digital penetration, physical abuse, viewing of pornography and inappropriate sexualised‑touching. 

5. On 30 May the mother filed a form 4 notice of abuse.  It makes allegations of abuse by the father against six named individuals, one of whom is C.  As I understand it, another four are the other children of the mother and one is another child of the father.

6. The case had a number of return dates in the Federal Magistrates Court and was eventually transferred here, almost a year after the contravention application was filed in that court.  A delay of that period is very unfortunate. 

7. Mr Webb is the independent children's lawyer in this matter and I am grateful for the investigations he has undertaken, which he has summarised.  I do not treat his advice as I would evidence on oath.  But given the time these applications were filed, and the delay in transferring them to this court, and given that they are governed by the Division 12A procedure, it is appropriate for the court and for the parties' lawyers to hear that background information. 

8. It appears there are criminal investigations into these allegations in two States:  one set relates to the alleged abuse of C, who lives here in Victoria;  a second relates to alleged abuse of one or more people who live in New South Wales.

9. Mr Webb has spoken with a police member, Mr T, from an area just west of Melbourne.  It seems that investigation is proceeding very slowly.  Counsel for the father has advised that police indicated they wanted to speak to his client when he and the client were at another court, on an unrelated matter, on 15 May this year.  It is said police are seeking statements from people who may have left the Central Victoria area.  Police in the Central Coast are involved in the New South Wales investigation.  Detective Senior Constable V has advised a decision is expected in about six weeks.  That seems an optimistic time frame but perhaps they are closer to completing a brief. 

10. It is common ground that the case must be adjourned.  The issue is the length of the adjournment.  The father has not seen C for quite some time.  The 2005 orders have not formally been suspended, and I am satisfied they should be suspended.  These are serious allegations and until further evidence is before the court, it could not be comfortable about allowing C to spend unsupervised time with her father.  I make it clear that does not mean any finding of abuse has been made.  The court’s obligation is to focus on the best interests of the child in question.  If it is found, in due course, that there was no good reason to suspend those orders, make-up time can be considered. 

11. I propose to adjourn the case to 12 December 2008.  There is no point in an earlier date;  if police investigation results are not available, the parties’ frustrations will be exacerbated.    

12. I will order that the further hearing of all extant applications be adjourned before Bennett J and the Magellan registrar at 10:00 am. on 12 December, 2008 and there be liberty to apply to the Magellan registrar to bring the case on earlier if all the necessary evidence is to hand.   

13. Until further order, all orders for the father to spend time with C will be suspended.  My reasons for judgment will be transcribed and a copy made available.  I will certify for counsel and a solicitor appearing as counsel.

14. I will grant all parties liberty to issue subpoena, returnable on a Tuesday or Thursday at 9.30 am.

DISCUSSION

1. The DHS file will be produced early next week.  I am comfortable in ordering it be released for inspection by the lawyers at that time.  That order does not extend to copying or inspection by anyone save a solicitor on the record or counsel instructed by such a solicitor.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown AM

Associate: 

Date: