Madden and Smithers

FAMILY COURT OF AUSTRALIA

MADDEN & SMITHERS

[2009] FamCA 813

FAMILY LAW – CHILDREN – Past findings of sexual abuse – Consequential deliberations – Father’s intentions to appeal – Delays – Impact of abuse upon boys – Impact of findings upon mother – Orders prohibiting contact

APPLICANT:

Mr Madden

RESPONDENT:

Ms Smithers

INDEPENDENT CHILDREN’S LAWYER:

Amber Buckland

FILE NUMBER:

BRF

3083

2006

DATE DELIVERED:

19 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

19 June 2009

REPRESENTATION

THE APPLICANT:

Mr Madden appears in person

COUNSEL FOR THE RESPONDENT:

Mr A George

SOLICITOR FOR THE RESPONDENT:

Porter Hulett

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J Hogan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED

That the Mother have sole parental responsibility for the children, S born … June 1999 and J born … March 2001.
That the said children live with the Mother.
That until further order, the Father is prohibited from spending time with, or communicating with, the said children.
That the Independent Children’s Lawyer be discharged.
That pursuant to s65DA(2) and s62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3083 of 2006

MR MADDEN

Applicant

And

MS SMITHERS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX TEMPORE

This is the continuation of a hearing before me in relation to two children of the parties, S born in June 1999, and J born in March 2001.
The proceedings were first before me in February of 2008, when each of the parties was legally represented by solicitors and counsel and there was legal representation for the children.
At that time, it was agreed between the parties and their legal representatives that the circumstances of this case were such as to justify proceeding to first hear and determine issues relating to the allegations raised by the mother that the children had been exposed to some forms of inappropriate sexual abuse. As a consequence, the matter proceeded for three days before me and those matters were addressed and I proceeded to provide the parties with a judgment at the conclusion of that time.
In that judgment, I included findings that the children had been sexually abused. I made a positive finding that they had been abused by one Ms A, the partner of the father, and I made a further finding to the effect that the father may have been a party to that abuse and/or may have witnessed the abuse and/or may have failed to properly protect his children, and the matter was then stood over for a short time to enable the parties to consider their position in light of those findings.
The father subsequently informed the Court, through legal representatives, that he intended to appeal against that decision and that information had the effect of delaying, what I might call, the second stage of the proceedings designed to examine any further evidence and submissions in relation to what should happen in the future, having regard to those findings.
On subsequent mentions, the father indicated he intended to lodge an appeal against my decision and further deliberations have been suspended pending the conclusion of that process.
Unfortunately for the parties and the children, the second-stage process has now been dragging on for a further 18 months. The father does suffer from not insignificant disabilities which render the prospect of him representing himself as very problematic, and I accept that much of the time since the original hearing has passed as a consequence of him making unsuccessful endeavours to secure legal representation.
The end result is that the father has not yet filed his notice of appeal and, as I informed him this morning, and he was quite capable of accepting the proposition, the time had now come for the sake of the children and the mother to bring these delays to an end and to finalise the case.
The matter was mentioned from time to time, and in a mention in November of last year I made orders designed to ensure that the second stage of the case would be finalised today. Included in the directions I made at that time was a direction that the mother file her material addressing the remaining issues by May of this year and the father file any affidavit in reply by June. The father has not filed any such affidavit and he again reminds me of his lack of legal representation and his disabilities in that context. Nevertheless, I do not have any material from the father.
I have an affidavit from the mother and an affidavit from Dr G. The father has declined the opportunity to cross-examine those witnesses and, as a consequence, I am left with the unchallenged evidence of the mother and Dr G on this remaining issue.
Before I proceed to briefly examine those matters, I do wish to place on the record the fact that I commend the father for the way he has conducted himself today. No doubt, these matters are very difficult for him, not only as an unrepresented person with some disability but, of course, even more importantly, as the father of two sons and facing the possible consequences of being deprived of a relationship with them in the future.
Whilst he has clearly struggled with some of the concepts to be dealt with today, he has conducted himself with dignity and has properly focussed upon the important issues. I accept that part of his reasoning behind the decisions he has made this morning is based on a concern not to put the mother through more than she needs to be put through and, further, is as a result of his appreciation that it is in everyone's interest to finalise this matter, as much as is ever possible in such cases.
I turn then to stage two and simply reiterate that my findings were serious ones. The abuse of the children on the evidence appeared to be grave and likely to have an adverse impact not only upon the boys, but the revelation would necessarily have an impact upon their carer.
I have read the mother's affidavit. It is unchallenged. It is unremarkable. I accept what she says, and I accept that she has struggled with the consequences of the events that led to this case and the case itself.
I have particular regard to the evidence of Dr G and her assessments of the mother and, in particular, I propose to place on the record the answers Dr G gave to some specific questions put to her. They are as follows. To the question:
"Whether the mother suffers from any mental disease, natural mental infirmity or other relevant condition and if so the nature of such condition, its duration, treatability and severity and your prognosis."
The following answer:
"As noted she has suffered from a variety of conditions including adjustment disorder with depressed mood, reactive attachment disorder, substance abuse. According to the history which she presented to me she has demonstrated some resilience and at present has reached some stability, being abstinent from drugs, in a stable relationship and according to her managing to parent her children. However, the likelihood is that in times of significant stress she will decompensate and demonstrate significant depressive symptoms."
To the question:
"An examination of the mother's beliefs in relation to sexual abuse of her children and whether such beliefs are rational or otherwise."
An answer:
"As a result of her own experience of childhood sexual abuse it is likely that she would be hypervigilant and over protective. Nonetheless on the information which she presents it seems probable that her beliefs are rational."
To the question:
"The attitude of the mother to any Orders for time to be spent with the father."
An answer:
"She informed me that she would disobey such Orders even if it meant going to jail."
To the question:
"The likely reaction of the mother and likely conduct of the mother to any order for time between the children and their father and the impact upon the children of her reaction."
An answer:
"I believe that such an Order would occasion distress and preclude her effective functioning as a parent. The impact on the children would be negative."
To the question:
"Whether an order for time would impair the mother's care giving ability."
An answer:
"In my view it would."
To a question:
"Your opinion as to whether any benefit to the children having time with the father would or would not be outweighed by disadvantages for the children, including a risk that the children's relationship with the mother might be undermined."
An answer:
"It is my belief that the disadvantages would outweigh the benefits."
To a question:
"The viability of any Orders for time to be spent with the father in light of the Court's findings to date."
An answer:
"In view of the Court's finding it is difficult to contemplate any benefit in Orders for time to be spent with the father."
Whilst at one level the Court would be reluctant to accept threats to defy Court orders, I am satisfied that those expressions by the mother represent the depth of her thoughts and concerns about the prospect of contact, and having regard to the evidence and my findings I can hardly be surprised by such matters. The mother’s attitude is, in all the circumstances, understandable and entirely rational.
The evidence of Dr M is really overwhelming to the effect that, firstly, the mother would find it somewhere between difficult and impossible to contemplate orders for contact and to comply with them, and secondly, that the impact of such orders upon the mother's parenting would be such as to adversely affect the welfare and development of the children themselves.
Sadly, I am left to conclude that it is not in the best interests of these children to have contact with their father. That prospect is now going to be a matter for the boys to determine at an age when they are old enough and mature enough to make those types of decisions.
In the meantime, I am satisfied that the responsibility imposed upon the Court to protect these children requires me to make the orders proposed by the Independent Children's Lawyer and sought by the mother.
In his submissions, the father requested that, in the event the Court made the orders sought by the Independent Children's Lawyer, it, at the same time, make an order giving him leave to appeal against my decision, so that he was not faced with that obstacle.
The father has an absolute right of appeal, although he is now confronted by significant impediments arising as a result of the substantial delay. I do not have the capacity to give the father leave to appeal. I do not have that power. Even if I wanted to, I could not make the order sought by the father.
In all the circumstances, I make the following orders as proposed by the Independent Children's Lawyer.

ORDERS DELIVERED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2009] FamCA 813

19 June 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies