Saracuna & Siddele (No 4)

Case [2023] FedCFamC1F 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Saracuna & Siddele (No 4) [2023] FedCFamC1F 165

File number(s): SYC 7132 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 20 March 2023
Catchwords: FAMILY LAW – PARENTING – Applicant father’s application to re-open the proceedings subsequent to final hearing – Where applicant father contends new evidence has probative value – Where the respondent mother herself seeks to re-open proceedings to adduce further evidence – Protracted litigation – Public interest in timely conclusion of litigation – Additional evidence does not take existing issues before the Court further – Tangential probative value or relevance – Applicant father’s application dismissed – Respondent mother’s application dismissed – Costs reserved.   
Cases cited:

Australian Securities and Investment Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Saracuna & Siddele (No 3) [2022] FedCFamC1F 915

Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240

Division: Division 1 First Instance
Number of paragraphs: 26
Date of hearing: 20 March 2023
Place: Sydney (via videolink)
Solicitor for the Applicant: Mr Hamka, King & York Lawyers
The Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Mr MacDiarmid, Mark MacDiarmid Family Law Specialist

ORDERS

SYC 7132 of 2018

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

MR SARACUNA

Applicant
AND:

MS SIDDELE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

20 MARCH 2023

THE COURT ORDERS THAT:

1.The applicant father’s Application in a Proceeding filed 3 March 2023 is dismissed.

2.The respondent mother’s Response to an Application in a Proceeding filed 17 March 2023 is dismissed.

3.The parties’ costs of today’s hearing are reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under the pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

  1. The history of this matter is set out, in broad terms, in the ex tempore reasons for judgment I delivered on 16 November 2022.[1] Essentially, following a final hearing that was conducted between 8 and 11 August 2022, the mother was given leave to file written submissions and the father written submissions in reply. There were some weeks before that occurred. During the course of that time, the mother made an…

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Saracuna & Siddele (No 4) [2023] FedCFamC1F 165
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[2023] FedCFamC1F 165
Decision Date

CaseChat Overview and Summary

In the case of Saracuna & Siddele (No 4), the parties were engaged in a contentious dispute concerning the administration of COVID-19 vaccinations to their child, along with other broader parenting issues. The Family Court of Australia was tasked with determining whether to admit additional evidence submitted by the father, following the conclusion of the substantive proceedings in August 2022. The father sought to introduce evidence pertaining to the child's recent vaccination, which he argued was relevant to the ongoing dispute about the child's vaccinations and the parents' ability to communicate effectively in the future. In contrast, the mother and the Independent Children’s Lawyer (ICL) argued that the evidence was of tangential relevance and did not justify reopening the proceedings.

The court was required to decide whether the additional evidence should be admitted under the principles outlined in Stephens & Stephens (2009) FLC 93-425. These principles include the nature of the proceedings, whether the evidence should have been reasonably foreseen, the importance of the issue, the relevance and probative value of the evidence, the potential prejudice to the other party, the public interest in the timely conclusion of litigation, and the explanation for not presenting the evidence earlier. The father argued that the evidence was crucial to demonstrating the mother's parenting conduct and the parents' future communication capabilities. However, the mother and the ICL contended that the evidence was not central to the core issues in dispute, which included the child's vaccination and the parents' ability to make joint decisions.

The court found that while the evidence confirmed the ongoing disagreement between the parents about the child's vaccination and their ability to communicate, its relevance and probative value were relatively minor. The court emphasised that the evidence did not significantly advance the central issues that had been extensively argued. Consequently, the court ruled against admitting the additional evidence, considering the minimal benefit it would provide against the potential disruption to the proceedings and the public interest in concluding litigation promptly.

The court's decision was grounded in the principle that any decision affecting a child's welfare should be approached with careful consideration of its implications for the child, as underscored in CDJ v VAJ (1998) 197 CLR 182. The court concluded that reopening the proceedings to admit the additional evidence would not sufficiently advance the resolution of the key issues, and thus, it was not in the best interests of the child to do so. The court maintained the closure of the substantive proceedings, preventing the admission of the father's additional evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note, in that respect, the principles set out in CDJ v VAJ (1998) 197 CLR 182, in particular at [87] where the High Court held in considering whether to admit further evidence, the Court is bound to have regard to the effect that evidence “may have in determining whether the best interests of the child” are served by the admission of that evidence. While that case concerned the potential admission of further evidence in an appeal, the principle adumbrated is, in our view, equally applicable to the potential admission of evidence by a trial judge at first instance. In that respect, at [192], Kirby J pointed out “the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child's welfare is consistent with the longstanding parens patriae jurisdiction of courts” (emphasis added). In terms of the second consideration of Stephens, the additional evidence that the father seeks to rely upon could not have been reasonably foreseen, with the vaccination of the child having taken place in October 2022, after the conclusion of the substantive proceedings in August 2022. Relevantly and of importance to the issues in these proceedings, when pressed today, the solicitor for the father who, it is acknowledged, has come into this matter relatively late in the piece, contended that the evidence the father seeks to rely on does not go solely to the ongoing parental dispute regarding whether the child should be vaccinated. Rather, it is contended that the evidence also goes to the manner in which the mother has conducted herself in respect of parenting issues and, in particular, arranging for the vaccination in circumstances where she had herself obtained an injunction to restrain the father from doing so. The solicitor for the father also contends that it is an indication of the fact that the parents will be unable to communicate in a manner that is conducive to them exercising shared parental responsibility in the future. Comparatively, the mother essentially contends that the primary motivation of the father in bringing this application is for the purpose of discrediting her and casting aspersions on her parenting capacity. I respectfully agree with the submissions of the ICL that the evidence, if admitted, confirms that the parties have been in disagreement regarding the child receiving the COVID-19 vaccination and that remains a live issue in dispute between the parties. Additionally, there remains a dispute as to the extent to which the parties are able to communicate in a child-focused manner to make decisions relating to major long term issues of significance to the child. Further, the parties’ contentions regarding their respective parenting capacities have been and remain a live issue in dispute. These are all important issues in terms of the third consideration in Stephens. Nonetheless, having regard to the fourth consideration of Stephens, that is, the degree of relevance and probative value of the further evidence, I respectfully agree with the ICL that the probative value or relevance of that further evidence to the issues to be determined in the proceedings is of such relatively tangential relevance to the points each party has respectively made at considerable length in the proceedings, that the admission of this additional evidence does not justify re-opening the proceedings having regard to the sixth Stephens consideration, which is the public interest and timely conclusion of litigation.

Ratio Decidendi

Legal Principle Established

The relevant principles in respect to an application to re-open proceedings is set out in the matter of Stephens & Stephens (2009) FLC 93-425 (“Stephens”), which is a decision of the Full Court of the Family Court of Australia (as it then was) and in turn cross refers to Australian Securities and Investment Commission v Rich (2006) 235 ALR 587. I was helpfully referred to that authority by the Independent Children’s Lawyer (“ICL”) in the course of the November proceedings, during which I summarised the relevant principles at [9] of my ex tempore reasons as follows:The ICL has helpfully referred me to a decision of the Full Court, Stephens & Stephens (2009) FLC 93-425, where the Full Court referred to the case of Australian Securities and Investment Commission v Rich (2006) 235 ALR 587 and noted that the Court, in considering whether to receive fresh evidence after proceedings have closed, is assisted by having regard to the following matters: (1) The nature of the proceedings; (2) Whether the occasion for calling further evidence ought reasonably have been foreseen; (3) The importance of the issue on which the further evidence is sought to be adduced; (4) The degree of relevance and probative value of the further evidence; (5) The prejudice to the other party; (6) The public interest and the timely conclusion of litigation; and (7) The explanation offered for not having called the evidence. CONSIDERATION The ICL has provided a very helpful outline of contentions that he is making in these proceedings and the mother supports those contentions. The father contends that the mother has arranged for the child to have a single dose of the COVID-19 vaccination administered to her, shortly prior to the November 2022 hearing. The mother concedes this in her affidavit at paragraphs 2 and 14, but nonetheless states, in that affidavit, that she continues to oppose the further administration of any additional COVID-19 vaccinations to the child. The reasons for the mother’s opposition to that occurring are set out in paragraphs 10 and 11 of her affidavit, which are also identified by the ICL at paragraph 2 in his case outline:10.…there was a high risk that the court would permit [the father] to have [the child] administered both doses of COVID-19 injection.11.…that [the father] would do so at a time and in such a way that there would be no opportunity, in a timely manner, for me to provide to her either physical or emotional support (as well as not doing so himself), by which the risk of resultant physical or emotional harm to her from the injection could be minimised. Having regard to the evidence tendered by the parties for the purpose of today’s proceedings, even though the mother has taken the child to receive the first dose of the COVID-19 vaccination, the administration of any further vaccinations remains a live issue in the proceedings. The mother continues to oppose the father having responsibility for those vaccinations and, in particular, according the father’s evidence as given in the substantive proceedings, his desire to follow the guidance of Dr C, the child’s paediatrician, in respect to whether those further vaccinations occur.