Saller & Danell

Case [2023] FedCFamC1F 122

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Saller & Danell [2023] FedCFamC1F 122

File number: SYC 575 of 2015
Judgment of: BRASCH J
Date of judgment: 7 March 2023
Catchwords:

FAMILY LAW – PARENTING – Where final parenting orders made in 2017 – Where father found to have engaged in serious acts of family violence to the mother and sexualised conduct towards the children – Where father previously found to be an unacceptable risk of harm to the children -– Where orders made in 2017 for mother to have sole parental responsibility – Where children see little of the father between 2017 to present - Where children clear in their views about wanting supervised time with the father – Where children clear in their views about not wanting regular time with the father – Where father made children uncomfortable during supervised time - Where orders made for limited supervised time

FAMILY LAW – PRACTICE AND PROCEDURE – Where father filed a Notice of Discontinuance – Where the mother and Independent Children’s Lawyer were prepared to proceed on an undefended basis – Where the father filed new material on the eve of trial –– Where matter proceeded on submissions  
Legislation: Family Law Act 1975 (Cth) Part VII, ss 4AB(2),60B, 60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 65D(1), 65DAB
Cases cited: 

Cotton & Cotton (1983) FLC 91-330

G & C [2006] FamCA 994

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69; [1988] HCA 68

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Saller & Danell [2017] FamCA 161

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

WK v SR (1997) FLC 92-787

Division: Division 1 First Instance
Number of paragraphs: 152
Date of hearing: 15 February 2023
Place: Sydney
Counsel for the Applicant: Mr Friedlander
Solicitor for the Applicant: Sharah & Associates Solicitors And Conveyancers
The Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Messner
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law

ORDERS

SYC 575 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DANELL

Applicant
AND:

MR SALLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

7 MARCH 2023

IT IS NOTED THAT ON 15 FEBRUARY 2023 THE COURT PRONOUNCED THE FOLLOWING ORDERS MADE BY CONSENT:

1.All previous parenting orders in relation to the children, B, born 2007 (“B”), and C, born 2010 (“C”) (collectively “the children”) be discharged.

Decision making

2.The mother have sole parental responsibility for the children for all long term decisions being:

(a)the children’s education (both current and future);

(b)the children’s religious and cultural upbringing;

(c)the children’s health;

(d)the children’s names; and

(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

3.In…

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AGLC
Saller & Danell [2023] FedCFamC1F 122
Case
[2023] FedCFamC1F 122
Decision Date

CaseChat Overview and Summary

In the case of Saller & Danell, the matter involved a dispute over parenting arrangements between the applicant, Ms Danell, and the respondent, Mr Saller, following final parenting orders made in 2017. The key issues included the minimal contact the children had with their father since 2017, their clear views about wanting supervised time with him, and their discomfort during supervised visits. Mr Saller had previously been found to pose an unacceptable risk of harm to the children due to serious family violence and sexualised conduct. Despite this, the children expressed a desire for supervised visits with their father. The court was tasked with determining whether the balance should favour the protection of the children or their relationship with their father, considering the primary considerations outlined in section 60CC(3) of the Family Law Act.

The court deliberated on the evidence presented, including reports by Ms AB, a psychologist, and submissions from both parties. The court acknowledged the findings from the 2017 case that Mr Saller posed an unacceptable risk of harm to the children but did not find sufficient evidence to make positive findings of sexual abuse or inappropriate sexualised conduct based on the current submissions. However, the court took into account the children's discomfort and concerns from previous interactions with their father. The court noted that Mr Saller had not taken any significant steps to address the concerns raised in the 2017 decision, such as seeking professional psychological help or learning about respecting appropriate boundaries.

After considering the evidence and submissions, the court determined that the children's primary concern was the ongoing requirement to keep their personal information private from their father and the stress caused by the potential for things to go wrong during their interactions. The court concluded that while the children wanted supervised time with their father, they did not want regular unsupervised contact. The court made orders for limited supervised time, acknowledging the children's wishes while prioritizing their safety and well-being. The court's decision balanced the children's desire for a relationship with their father against the need to protect them from the risks identified in the previous proceedings.

The final orders of the court were made under the Family Law Act, with specific provisions for supervised contact between the father and the children, ensuring their safety and well-being were paramount. The court emphasized the importance of continued supervision and the need for Mr Saller to address the underlying issues that posed risks to the children. The orders were designed to provide a framework that allowed the children to maintain a relationship with their father while minimizing the potential for harm.

Orders

Orders of the court

SYC 575 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DANELL

Applicant

AND:

MR SALLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

7 MARCH 2023

Background

Background to the litigation

By the time of her Short Form Report – Children’s Wishes and Views dated 3 November 2022 (“the second report” or “Exhibit 2”) Ms AB recorded that it was the father’s estimate the children had seen him “for thirteen hours over a 5 ½ year period” (Exhibit 2, paragraph 16). In submissions before me, the father updated that to 16 hours in five years. Exhibit 5 contains reports from four supervised visits: two in 2021 and two in 2022. I do not need to find precisely how much time over which period of time; all I say is it has been minimal.Procedural background The matter first came before me on 13 April 2022 and I set it down for a two day trial commencing 22 November 2022. The parties then jointly approached Chambers to vacate the trial dates so they could attend mediation. I did so, but the mediation was unsuccessful. I listed the matter for a two day trial initially on 14 and 15 February 2023, then 15 February 2023 with a further date to be fixed. On 25 January 2023, the father’s solicitor filed a Notice of Ceasing to Act and a Notice of Discontinuance. At trial, the father confirmed that the Notice of Discontinuance was filed on his instructions. On 6 February 2023, the father filed a Notice of Address for Service. Close to 4.30 pm on 14 February 2023, being the eve of the new trial dates, the father filed a Response to Final Orders, Affidavit, Notice of Child Abuse, Family Violence or Risk, and, a Genuine Steps Certificate. When the matter came before me on the next morning, the mother’s Counsel and Counsel for the Independent Children’s Lawyer (“the ICL”) indicated that the father’s very late material had taken them by surprise and both had prepared on the basis the matter would proceed undefended. Given the father was self-represented I determined not to engage with the ICL’s submissions that he had no standing to be heard due to the Notice of Discontinuance. However, for Reasons given at the time, I did not allow the father to rely upon his affidavit and some other material, which had been filed so very late and contrary to my filing directions. That said, for the Reasons also given at the time, I did not give the mother leave to rely upon her affidavit which had also been filed contrary to the Trial Directions.Material As a consequence of my rulings about the parties’ material, the material before me was the:(a)Mother’s Initiating Application filed 19 December 2019;(b)Child Inclusive Conference Report by Ms AB dated 25 June 2021 (Exhibit 1);(c)Short Form Report – Children’s Wishes and Views by Ms AB dated 3 November 2022 (Exhibit 2); (d)Five Exhibits, which included the two reports by Ms AB; and(e)I accepted the father’s Response, albeit out of time, to better understand the orders he sought. The mother also had a Minute of Order and both she and the ICL had a Case Outline. I had the benefit of the 2017 Reasons and Order. No one gave Ms AB notice she was required for cross-examination. The matter proceeded by way of submissions. Issues in dispute

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ultimately, after Ms AB set out the various risks posed for these children, she concluded:The greatest stress that [B] and [C] identified would appear to be the ongoing requirement that they keep details of their accommodation, school and personal information private from [Mr Saller]. They identify supervision as a way of mitigating against this problem. In relation to parenting arrangements, the greatest issue would appear to be feeling worried that things might somehow go wrong pressured by [Mr Saller] and, on the few occasions they have spent together, experiencing his questioning and some comments as being intrusive. (Exhibit 2, paragraph 48)Balancing the primary considerations Both parties propose C have a relationship with the father. However, I must also consider protecting the children from unacceptable risks of harm. When balancing these two considerations, I infer the mother says the balance swings in favour of protection from harms. I also infer that father would say the balance favours the meaningful relationship. I am not prepared to positively find the matters contained in Ms AB’s reports or Exhibits (the jacket, the whispering to B, B feel the father was looking at her breasts, hands on C’s shoulder, wrestling and unwanted hugs) were family abuse or inappropriate sexualized conduct constituting an unacceptable risk of harm. In M v M at [76], the Full Court cautioned against positive findings of sexual abuse “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw”. The reference to Briginshaw has been overtaken by s 140 of the Evidence Act. Nevertheless, the principle remains apt. Isles also provides a detailed discussion of the exactitude required for positive findings of sexual abuse.Deputy Chief Justice McClelland had the benefit of particularised evidence that was tested, and was thus able to make the kinds of positive findings he did, mindful of what was said in M v M. As the matter proceeded before me by submissions I have not had the benefit of that testing of evidence. I am therefore not prepared to make positive findings of sexual abuse or sexualised conduct. However, I take those matters into account from the children’s perspective when I consider the relevant s 60CC(3) factors. It remains though that the findings of McClelland DCJ with respect to unacceptable risk endure. I have no evidence before me that the father has done anything to address the issues and concerns found by His Honour – at best, the father has “considered whether he should seek psychological help from someone on a professional level” and has read some self-help psychology books to prepare himself for all court outcomes (Exhibit 2, paragraph 11). He also had three therapy session with Mr AG “and the focus was on his preparation to see [B] and [C]” (Exhibit 2, paragraph 14). There is nothing in the evidence before me that those sessions concerned the father learning to respect appropriate body boundaries or any of the unacceptable risks found in the 2017 Reasons.