MADGWICK & DALE

[2020] FCCA 1650

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADGWICK & DALE [2020] FCCA 1650

Catchwords:
FAMILY LAW – Parenting – where matter was set down for a one day trial some time ago – where trial was to be in relation to limited issue of the time the child spends with the father – where more very serious issues have arisen from trial affidavits – where allegations of rape and other forms of family violence – allegations now mean trial is more likely to require four days.

Legislation:

Family Law Act 1975 (Cth), s.102NA

Applicant: MR MADGWICK

Respondent: MS DALE

File Number: ADC 3380 of 2018

Judgment of: Judge Young

Hearing date: 28 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Darwin

Delivered on: 28 May 2020

REPRESENTATION

Counsel for the Applicant: Mr D. Fryer

Solicitors for the Applicant: Salisbury Lawyers

Counsel for the Respondent: Mr I. Roberts

Solicitors for the Respondent: Calderwood Atkinson

ORDERS

UPON NOTING:

A.That this matter is part heard and further trial dates will be allocated in Judge Young’s Adelaide listings in February / March 2021 on a date to be confirmed.

B.That the matter is likely to take four days and not one day as previously indicated to the Court.

C.That s.102NA (1)(c)(iii) of the Family Law Act 1975 applies and the father is not permitted to cross-examine the mother.

THE COURT ORDERS:

1. That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship X born in 2007 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 September 2020.

4. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

5. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

6. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

7. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

THE COURT FURTHER NOTES THAT:

D.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

E.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

F.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

THE COURT FURTHER ORDERS:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the parties, their legal representatives and the Independent Children's Lawyer attend a Family Dispute Resolution Conference at the Legal Services Commission of SA on 12 October 2020 at 9.30am.

5. That the Independent Children’s Lawyer forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within (7) days of the Order being made the following:

   (a)A copy of the Order;

   (b)The contact details of all parties involved (including current postal and telephone details).

6. That the Independent Children’s Lawyer forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, at least (7) seven days prior to the date of the Conference a copy of all documents filed with the Court on behalf of all parties.

7. That the matter be adjourned for interim hearing by telephone at the Federal Circuit Court, Darwin on 17 November 2020 at 10.00am in relation to the time the child spends with the father.

THE COURT FURTHER NOTES THAT:

G.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

H.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

1. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

J.If s. 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 3380 of 2018

MR MADGWICK

Applicant

And

MS DALE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was set down for trial today.  It is a parenting case and the matter was set down for a one day trial some time ago on 11 December 2019.  At that time, the applicant father appeared in person and Mr Atkinson appeared for the respondent mother.  I do not recall being told that there were any issues apart from the wishes of this child, who is almost 13 now. 

3. At that time there was a Child Inclusive Memorandum that recorded the child as expressing wishes to spend more time with his father and the family consultant accepted that those wishes were genuine and appeared to endorse the proposition that those wishes should be respected.

4. So it appears, though I have no independent recollection of what happened on that day, that the issues at that stage were merely one of an older child expressing a wish to spend more time with his father, and wish that was supported by the Child Inclusive Memorandum. 

5. The matter was set down for a day by me, and I have to take responsibility for that, but it doesn’t appear that I was assisted by any submissions to reassess that view.  On 7 May the matter was listed in front of me for a check mention to see if the matter could proceed by way of Microsoft Teams hearing. 

6. There were also, at that stage an order had been made pursuant to section 102NA of the Family Law Act that prohibited cross-examination by the father personally of the mother. The father then accessed the section 102NA representation scheme. In fact, that had happened on 11 December.

7. Mr Fryer for the applicant and Mr Roberts appeared before me on 11 December 2019 by telephone, and I was not disabused of the idea that this would be a one-day matter.  When I read the trial affidavits this morning I saw that some very serious issues had arisen, particularly from the mother’s trial affidavit which makes allegations against the father that he repeatedly, during the relationship, sexually assaulted her.  In fact, the allegations really constitute allegations of rape and other forms of family violence, not limited to sexual violence.

8. I had not been informed, and if I had read earlier affidavits I overlooked them, that that was going to be a central issue.  Both counsel have told me that they consider those allegations to be relevant and will require extensive cross-examination of both the father by the mother’s counsel and, of course, the mother by father’s counsel.

9. I have pointed out to Mr Roberts, who appears for the mother today, that I particularly consider the form of the allegations to be objectionable in that they lack any real.  In their present form they are very difficult to answer and probably constitute an unfairness to the father in dealing with them.  I have flagged to the mother’s legal advisors that, in their present form these allegations which are no more than general and lack any particularity as to date, time or circumstances, or even an attempt at a definition of time, a month or a year for example, are liable to be disallowed.

10. Given that they are such serious allegations I am not sure that that’s an appropriate resolution of the matter.  Both counsel took the view, on the basis of Full Court authority, that where such serious allegations of sexual violence and violence are made against a parent who is seeking orders for in effect equal time that those matters will have to be resolved if possible.

11. Given that it seems to me that there is no possibility that this matter can be resolved in one day, two days and probably not three days.  My assessment is it is more likely a four day trial. 

12. Had this matter been properly ventilated at a much earlier stage there would be grounds on the basis of the expected length of trial to transfer the matter to the Family Court.  However, what I considered to be an embarrassingly poor handling of this issue in this Court, partly contributed to me, would make me ashamed to transfer it.  I also take into account that it will not be reached in the Family Court for a longer time than in which I can deal with it here.  There will be a regrettable, and frankly unacceptable delay in dealing with this, but such is the nature of litigation in this Court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 22 June 2020