Maddern & Langford

[2020] FCCA 3650

FEDERAL CIRCUIT COURT OF AUSTRALIA

Maddern & Langford [2020] FCCA 3650

File number(s):	ADC 5287 of 2017
Judgment of:	JUDGE BROWN
Date of judgment:	17 June 2020
Catchwords:	FAMILY LAW – interim application to spend time with a child – applicant due to stand trial in respect of charge of sexual assault of the respondent mother – reasonable grounds to believe member of child’s family has been exposed to family violence – best interest of child – proceeding adjourned until conclusion of trial – no order for time made.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CC, 68LA
Number of paragraphs:	18
Date of last submission/s:	17 June 2020
Date of hearing:	17 June 2020
Place:	Adelaide
Counsel for the Respondent:	Mr Holland
Counsel for the Independent Children's Lawyer:	Mr Hemsley
Solicitor for the Applicant:	in person

ORDERS

ADC 5287 of 2017

BETWEEN:

MR MADDERN

Applicant

AND:

MS LANGFORD

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	17 JUNE 2020

THE COURT ORDERS THAT:

1.The father be at liberty to send cards and gifts to the child care of the respondent’s solicitors office, Angela Ferdinandy at Suite 1, 72-78 Carrington Street, Adelaide SA 5000.

2.Further consideration of the matter is adjourned to 11 May 2021 at 9:30am for directions.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(Settled from ex temp reasons)

JUDGE BROWN

1. Today, I am dealing with an application in respect of a child, X, who was born in 2011.  The applicant in the proceedings is her father, Mr Maddern.  The respondent is her mother, Ms Langford. 

2. The proceedings were commenced a very significant period of time ago, on 21 December 2017.  Mr Maddern, who is not currently receiving Legal Aid in respect of these family law proceedings because of issues to do with criminal charges against him, has represented himself throughout much of the proceedings and again today is currently unrepresented.

3. At this stage, he has presented me with some documents which are, in effect, written submissions which echo some earlier submissions he made orally on 8 April 2020.  For reasons relating to the pandemic crisis, these proceedings have to be heard on the telephone.  This is far from satisfactory given the controversies which the case presents.

4. However, I apprehend that I can deal with the matter and it is appropriate for me to do so, notwithstanding the fact that the parties cannot be in the same location with one another because of the health crisis and the matter has to be dealt with through an electronic medium. 

5. The salient details of the matter are that Mr Maddern has not directly interacted with X for about two years, at least.  It is a significant period of time indeed and from Mr Maddern's perspective represents a great injustice to him and is an outcome which is not in X's best interests.

6. As I say, X's mother is Ms Langford.  She was born in 1989.  Mr Maddern was born in 1964.  It is Ms Langford's evidence that she and Mr Maddern formed a sexual relationship when she was a minor, and the relationship between them, because of the disparity of their ages, was one based on her sexual exploitation. 

7. It is the case that Mr Maddern has been charged with two sexual offences relating to Ms Langford, including one of rape.  On any view, those are significant charges.  Mr Maddern has vociferously asserted his innocence but the prosecution is on-going.  As a consequence, the charges are listed for trial, in the District Court, in April of next year.

8. In support of his application to spend time with X, Mr Maddern places significant emphasis on the fact other serious charges, including homicide charges and other serious assaults, involving the mother and members of her family, have been withdrawn by the prosecution. 

9. It is essentially his case that the current prosecution will fall apart because it is, in essence, his word against Ms Langford's word, as has occurred with the other charges previously laid against him.    In such circumstances, he contends that it may cause irreversible damage to the potential for him to have a meaningful relationship with X, if no provisions are made for him to spend time with her expeditiously.

10. Mr Maddern's assessment of the case may ultimately prove to be correct.  Cases involving allegations of sexual abuse which have occurred in private and in the past obviously present evidentiary issues. However, I have not been provided with any material indicating the strength or otherwise of the prosecution case, other than Mr Maddern's assertion that it is weak.  It is also his case that in the past, notwithstanding the mother's allegations now, he was a significant provider of care for the child.  A matter with which the mother takes issue.

11. The mother and father are not the only parties to the proceedings. At an earlier stage, an Independent Children's Lawyer, (‘ICL’) pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth) (‘The Act’) was appointed for X. The ICL has briefed a barrister, Mr Hemsley to appear on his behalf today. Mr Hemsley has been instructed to support the mother's position.

12. It is highly regrettable that the criminal prosecution will take a significant period of time to finalise. In this case, I have to concentrate on the best interests of the child concerned. How those interests are to be served is determined by a consideration of the list of matters in section 60CC of the Act.

13. There are two categories of matter, primary considerations of which there are two and a longer list of additional considerations.  In respect of the two primary considerations, I have to consider first, the benefits a child is likely to receive from having a relationship with a parent.  Secondly, I have to consider protective concerns relating to the exposure of a child to abuse, neglect and family violence.  The law is clear that protecting a child from harm has to be given priority.

14. It is not asserted that X herself has been directly abused by Mr Maddern.  The allegation relates to her mother alone. However, it is the flavour of the mother's case that there is a risk to this young child of, in turn, her being sexually exploited by her father, as it allegedly occurred to her mother.  That, of course, is an abhorrent thing to consider, but it is sadly not unknown to the criminal law.  I have to assess the risk. 

15. In my view, there is a significant level of risk in this case, because of the serious nature of the charge, and I think, on the basis of the police investigation at this stage, I can have reasonable grounds to consider that a member of X's family, that is her mother, has been exposed to significant family violence.

16. A rape or a sexual assault falls within the definition of family violence contained in section 4AB of the Act. It is also, I think, a significant thing that Mr Maddern has not interacted with the child for a significant period of time. It is difficult to see how such an interaction can be brokered carefully and sensitively, given the polarised positions of the parties.

17. Although, I conceive Mr Maddern will consider it grossly unfair to him, the only thing I can consider that can be done is to adjourn the proceedings until after the finalisation of the criminal proceedings, and with this in mind, I will adjourn it until 11 May 2021 at 9.30am. 

18. For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       2 June 2021