Saracuna & Siddele (No 4)
[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 JUDGMENTMCCLELLAND DCJ:
INTRODUCTION
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 application to re-open the proceedings for the purpose of presenting additional evidence. For reasons which I gave in my decision of 16 November 2022, I dismissed that application save in respect to one document, which was a document the mother had received from New South Wales Government indicating that the Government, through the relevant agency, did not wish to proceed with seeking the imposition of a fine against the mother in relation to events that had occurred during the period of COVID-19 safety measures where the mother interacted with police while on a train with the child.
[1] Saracuna & Siddele (No 3) [2022] FedCFamC1F 915.
By way of an Application in a Proceeding filed 3 March 2023, the father seeks both leave to re-open the proceedings and additional orders as set out in Part D as follows:
1.That this matter be listed on an urgent basis before Deputy Chief Justice McClelland.
2.That leave be granted to the applicant to re-open the proceeding.
3.That the mother forthwith take all steps to discharge the injunction made by the Supreme Court of NSW ([…]) in relation to the vaccination of the child.
4. That the father have liberty to provide a copy of these orders to the Supreme Court of NSW.
5. That the mother pay the father’s costs incidental to this application on an indemnity basis.
Conversely, the mother, by way of a Response to an Application in a Proceeding filed on 17 March 2023, opposes the father’s application but seeks to re-open proceedings for the purpose of adducing evidence that is attached to her affidavit filed 17 March 2023. In Part B of her Response, the mother sought orders as follows:
1. That either
(a) the applicant not be granted leave to re-open the proceeding; or
(b) if the proceeding is re-opened, then:
i.the mother be permitted to adduce evidence from one medical expert in relation to the risks and benefits to [X] ([X]) of the second dose of COVID-19 injection, and
ii.the further evidence in the mother’s accompanying affidavit of 17 March 2023 be permitted to be ventilated.
2.That the mother not be required to take steps to discharge the injunction made by the Supreme Court of NSW ([…]) in relation to the COVID-19 injection of [X].
3. That the father [Mr Saracuna], by himself, his servants or agents, be prohibited from causing or permitting any COVID-19 injection to be administered to [X] until the determination of the Plaintiff’s Application and any appeal filed in time of any order made in relation to COVID-19 injections.
4.That, during school terms, the Mother’s care of [X] every second weekend be increased to three out of four weekends, or in the alternate, two out of every three weekends.
5. That the mother have care of [X] between the end of the school day and 7:30pm on each Thursday or (alternatively) Friday that falls prior to each weekend that [X] is in the father’s care, during school terms.
6.That the mother’s care of [X] each fortnight during school terms be extended to the morning of the next school day, prior to school hours.
7.That the mother not be required to pay the father’s costs incidental to this application on an indemnity basis.
8.That the father be required to pay the mother’s costs incidental to this response on an indemnity basis.
(As per the original)
However, the mother has today indicated that she is seeking only the order sought in paragraph 1.
RELEVANT LEGAL PRINCIPLES
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.
In terms of the principles adumbrated in Stephens and set out above at [5], it is significant that, as contended by the solicitor for the father, these are parenting proceedings which have been described in many authorities as being akin to the parens patriae jurisdiction that is exercised by State supreme courts. It is a jurisdiction that focuses on the best interests of the child, with the paramount consideration being at all times, in respect to the outcome and conduct of proceedings, the best interests of the child.
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.
Before considering that sixth issue, I will first address the issue of prejudice to the other party. In response to a question asked of the father’s solicitor, it was conceded that if this fresh evidence is admitted, there would be need for the oral evidence in the proceedings to be re-opened, with associated cross-examination and submissions. The father’s solicitor contended that it would involve, at least, the cross-examination of the mother. However, with respect, it would be much more than that. It would require the additional evidence to be put before Dr C, which would involve both parties incurring not only considerable further expense but also suffering additional delay that the re-opened proceedings and submissions would take.
This brings me to the sixth Stephens issue, that is, the public interest in the timely conclusion of litigation, which is related to the first issue being the nature of the proceedings. The nature of the proceedings involves the parties’ respective applications for parenting orders for the child. There has been protracted litigation between these parties since 2018. The authorities which are summarised in the well-known case of Rice and Asplund (1979) FLC 90-725 and subsequent authorities that have referred to that decision confirm the general acceptance that ongoing protracted litigation is not in the best interests of children.
The seventh issue set out in Stephens is not relevant. The explanation for not having called the further evidence in the proceedings is simply that it did not exist at the time of the hearing.
The evidence which the mother seeks to have admitted into evidence is conditional upon the father’s application being successful. As I have dismissed the father’s application, it is not strictly necessary to consider the mother’s application but, for completeness, I will do so.
The material attached to the mother’s affidavit appears to be information printed out from the internet relating to what the mother has agitated are her concerns regarding the impact of COVID-19 vaccinations and, in particular, the mother contending that a second dose of the vaccination is of even greater concern than the child receiving the first dose.
The issue of the mother being concerned about risks associated with the COVID-19 vaccination was well aired during the course of the substantive proceedings. Granted, the focus of the proceedings was on the prospect of a first vaccination, but it contemplated the father retaining parental responsibility in respect to subsequent vaccinations. The material presented by the mother, which is of a general and non-authoritative nature, is such that it would be given very little weight by the Court.
Having regard to the nature of the material attached to the mother’s affidavit dated 17 March 2023, which would be given little weight in the context where there is already significant material before the Court regarding issues concerning the safety of COVID-19 vaccinations, it would not place the Court in any better position to determine the issue.
The second aspect of the mother’s proposed evidence is related to reports attached to her affidavit from the child supervision service that is supervising the changeovers between the parents at such times as the child moves from the care of one parent to the other. It relates to the mother’s evidence and the notations made by the service that the child is sad to leave her mother’s care and wishes to spend more time with the mother. Again, that is an issue that has been recognised in the proceedings as being an accepted fact that the child does wish to spend more time with the mother. Again, the evidence does not take the issue further than the evidence that has already been produced in the proceedings.
The additional evidence that the mother seeks to present, in that similar context, is that the father does not adequately support the mother-daughter relationship. Again, that was a strong theme of the evidence presented by the mother during the course of proceedings and the evidence attached to her affidavit of 17 March 2023 does not, in my view, take that issue further. It is an issue that has been well ventilated in the proceedings.
CONCLUSION
By way of summary and conclusion, I respectfully accept and adopt the summary of the ICL in paragraph 6 in his helpful case outline, which is as follows:
…having regard to the nature of the proceedings as parenting proceedings under Part VII of the Family Law Act (item 1) and the clear public interest in the timely conclusion of litigation underpinned by the provisions of S. 67 of the Federal Circuit and Family Court of AustraliaAct 2021 (item 6), the modest augmentation of the current evidence that would be provided by reopening is vastly overshadowed by the burden to the parties and the Court of the allocation of a further day, and possibly more, to the adduction of further evidence and attendant cross-examination.
I respectfully agree with the above as being a prescient summary of the parties’ respective applications and, on that basis, I dismiss the parties’ applications. In doing so, I make orders as proposed by the ICL in his proposed minute of order dated 18 March 2023.
COSTS
The ICL also proposes that the costs of this Application in a Proceeding be reserved, with which both the solicitor for the father and mother agreed. As such, I reserve the question of costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 20 March 2023
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