Marsden and Winch

In the Family Court of Australia at Canberra, Justice Faulks heard applications from both the mother and the father concerning orders made on 22 November 2006. The mother sought a stay of the order pending her appeal against it, while the father applied to substitute alternative organisations for supervised contact with the child, S, as the originally designated centre, M, was unable to facilitate the arrangements. The order sought to be stayed provided for supervised contact between the father and S for two hours fortnightly, subject to the capacity of the Canberra Changeover and Contact Centre at M, and excluded contact between 21 December 2006 and 15 January 2007. This order followed a previous judgment that had eliminated all physical contact between S and her father.

The court was required to determine two primary legal issues. Firstly, whether the mother's application for a stay of the 22 November 2006 order pending her appeal should be granted. Secondly, whether the father's application to substitute alternative organisations for the supervised contact with S should be granted, given the stated inability of the designated centre, M, to comply with the order. The court also considered the overarching principle of S's best interests in relation to both applications.

Justice Faulks dismissed the mother's application for a stay, finding that while the prospect of S continuing to see her father might distress the mother, this alone did not constitute an appropriate basis for granting a stay. The judge noted that there was ambiguous evidence regarding the impact of a denial of contact on S, and therefore, a denial of the stay would not necessarily render the appeal nugatory. The father's application for substitution was also dismissed due to inadequate evidence regarding the capacity and understanding of the proposed alternative organisations to facilitate the supervised contact. The court found that the material provided was insufficient to make a determination, and given the ongoing nature of the litigation, an adjournment to obtain further evidence was refused.

Consequently, the court ordered that the mother's application for a stay of the 22 November 2006 order be dismissed, and the father's application for the substitution of organisations for supervised contact also be dismissed. The existing order of 22 November 2006, therefore, remained in place, although the court acknowledged this might result in no contact between S and her father pending the appeal hearing due to M's inability to comply. No order was made regarding costs.