Madden and Smithers (No. 2)

[2008] FamCA 157

FAMILY COURT OF AUSTRALIA

MADDEN & SMITHERS (NO. 2) [2008] FamCA 157

FAMILY LAW – CHILDREN – APPEAL – Interim orders for contact in face of adverse findings of sexual abuse

APPLICANT: MR MADDEN

RESPONDENT: MS SMITHERS

FILE NUMBER: BRF 3083 of 2006

DATE DELIVERED: 20 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Burridge

SOLICITORS FOR THE APPLICANT: Springwood Lawyers

COUNSEL FOR THE RESPONDENT: Mr Porter

SOLICITORS FOR THE RESPONDENT:	Porter Hulett
INDEPENDENT CHILDREN'S LAWYER	Ms Buckland

Orders

1. That until further order, the Father be prohibited from spending time with the children, S, born … June 1999, and J, born … March 2001.

1. That the matter be adjourned for further mention to 9.30 am on 21 May 2008.

1. That the time which the Applicant Father has to institute an appeal be extended to 25 March 2008.

1. 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

REASONS FOR JUDGMENT

EX TEMPORE

1. I think it is appropriate that I make a formal order for no contact pending the determination of the appeal and/or the determination of the trial.  I informally indicated as much to the legal representatives and the parties in the course of discussing management ideas for the future conduct of proceedings. 

2. Mr Burridge did foreshadow proceeding with an application, and I think it was in the process of responding to that that I indicated that I would not be favourably disposed to an application for contact.  That outcome accords with the letter and the spirit of what has fallen to date.  If it has the added advantage of crystallising the viability of the appeal so that that appeal can proceed to final determination, that in turn facilitates the earlier conclusion of these proceedings.

3. As to the legitimate concerns raised by Mr Porter, I understand his concern about lengthy delay, given that the case has already been protracted.  However, it is my perception, and I have also received broad intimations from Mr Burridge to the effect that, in a sense, the appeal might eventually be seen as something of a last stand.  If the father is not successful in his appeal, the obstacles standing in his way in the light of findings that remain intact, and in light of the other body of evidence about the mother's anxiety about contact and her beliefs, are significant.  I am satisfied that, whilst this remains a matter ultimately for the father in the final analysis, an objective overview of the matter would indicate that there may well be a real prospect that an appeal will determine the outstanding matters, but there is no guarantee.  The mother may experience the delays envisaged by Mr Porter, but I am concerned about the other alternative.  Proceeding with the matter when the key findings which, on everyone's view, are potentially determinative in this matter, are the subject of an appeal, is problematic.  I would be concerned about embarking upon an exercise when a Full Court may not uphold those findings.  That would, in turn, expose the parties to doing the whole exercise again.

4. There is no one way which avoids the prospect of further litigation and delays and I am inclined to continue as I had in the face of the appeal previously and simply adjourn the matter for mention on 21 May 2008. 

5. What I can say to the parties is that, given that this is now on my case list, I will ensure that it is given priority.  If and when the father wishes to proceed with the matter, notwithstanding the dismissal of his appeal, I will make sure the matter is listed as soon as possible.  I am anticipating that the final stage of the trial might be a fairly narrow one.  I would have thought that we could probably do it within a maximum of two days and I am sure I can find two days reasonably promptly.

   ORDERS DELIVERED

6. Now, I had previously been persuaded to give the Independent Children's Lawyer liberty to provide copies of the judgment to welfare authorities in South Australia, New South Wales and Queensland.  I am wondering if anyone wants to be heard about that in light of the appeal.  The need for it is probably now largely addressed by the prohibition.

   RECORDED  :  NOT TRANSCRIBED

7. Yes, I think I will stay the operation of that leave.  I will not give that pending the appeal.  The children, the subject of the application, are protected by the combination of their living arrangements and now this final order, and otherwise I think the concerns should be appropriately addressed after the Full Court has had the opportunity to review the decision that I have made.

   RECORDED  :  NOT TRANSCRIBED

8. I will extend time to the applicant in which to institute an appeal to 25 March 2008.

   RECORDED:  NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: