Saracuna & Siddele (No 5)

Case [2023] FedCFamC1F 166

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Saracuna & Siddele (No 5) [2023] FedCFamC1F 166

File number(s): SYC 7132 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 21 March 2023
Catchwords:

FAMILY LAW – CHILDREN – Where there was a final hearing in January 2020 granting sole parental responsibility to the mother except for the issue of vaccination – Where there was a change of the child’s residence from the mother to father in April 2020 following an application for a recovery order – Where the father seeks sole parental responsibility and for the child to live with him – Where the mother seeks sole parental responsibility and for the child to live with her – Parental conflict – Where there are significant risks in the mother’s care due to the mother’s attitude towards complying with Court orders – Where there are risks that the mother will not appropriately manage the child’s health – Orders for the father to receive sole parental responsibility including in relation to the issue of vaccinations – Order for the child to live with the father and spend time with the mother on an alternate weekend basis and school holiday regime – No order for costs.

FAMILY LAW – VACCINATION – Where there is a current injunction from the Supreme Court of New South Wales prohibiting the father from causing or permitting any COVID-19 vaccination to be administered to the child until the determination in this Court – Where the mother seeks for the matter to be determined as a major medical procedure – Where it would not be appropriate for the Court to treat the COVID-19 vaccination as a major medical procedure.

Legislation:

Australian Constitution s 109

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65D, 69ZX(3)(b), 102NA, 117(1)

Judiciary Act 1903 (Cth) s 78B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.11, 1.34
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Brown v Brown [2022] NSWSC 16

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

JG v BG (1994) FLC 92-515; [1994] FamCA 160

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

KN and Child Representatives & Ors (2006) FLC 93-284; [2006] FamCA 611

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

Mains & Redden (2011) FLC 93-478; [2011] FamCAFC 184

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

McCall and Clark (2009) FLC 93-045; [2009] FamCAFC 92

Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175; [2004] FamCA 297

Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110

Saracuna & Siddele [2020] FCCA 174

Saracuna & Siddele (No 2) [2020] FCCA 1555

Saracuna & Siddele [2022] FedCFamC2F 186

Saracuna & Siddele (No 2) [2022] FedCFamC2F 293

Saracuna & Siddele [2022] FedCFamC1F 275

Saracuna & Siddele (No 2) [2022] FedCFamC1F 707

Saracuna &…

Continue reading Saracuna & Siddele (No 5)

Sign in free to access the full text

Details
AGLC
Saracuna & Siddele (No 5) [2023] FedCFamC1F 166
Case
[2023] FedCFamC1F 166
Decision Date

CaseChat Overview and Summary

In Saracuna & Siddele (No 5), the Federal Circuit and Family Court of Australia (Division 1) was required to determine a range of parenting issues between the parties, Mr Saracuna and Ms Siddele, following a contentious history between the parties. The issues included sole parental responsibility, the child’s residence, and the administration of vaccinations. The Court was also required to determine whether COVID-19 vaccinations should be treated as a major medical procedure. The Court found that it was in the best interests of the child for the father to have sole parental responsibility, including in relation to the issue of vaccinations, and for the child to live with the father. The Court also found that it would not be appropriate for the Court to treat the COVID-19 vaccination as a major medical procedure. The Court ordered that the father have sole parental responsibility for the child, including the determination of what, if any, vaccinations are to be administered to the child. The Court further ordered that the child live with the father and spend time with the mother on an alternate weekend basis and school holiday regime. The Court made no order for costs. The Court found that the father was a truthful witness and that the mother’s evidence was, at times, non-responsive and tangential. The Court found that it was in the best interests of the child for the father to have sole parental responsibility and for the child to live with him. The Court found that there were significant risks in the mother’s care due to her attitude towards complying with Court orders and that there were risks that the mother would not appropriately manage the child’s health. The Court found that it would not be appropriate for the Court to treat the COVID-19 vaccination as a major medical procedure.

Orders

Orders of the court

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:

21 MARCH 2023

THE COURT ORDERS THAT:

1. All prior parenting orders be discharged.

Parental responsibility

2. The father, MR SARACUNA (“the father”), shall have sole parental responsibility for the child X born 2014 (“the child”) including, without limitation, for the issue of passports under s 11 of the Australian Passports Act 2005 (Cth) and for the determination of what, if any, vaccinations are to be administered to the child, and:

(a) The father shall keep the mother, MS SIDDELE (“the mother”), informed of the child's progress including but not limited to matters of the child's well-being, health, education or extra-curricular activities;

(b) The mother shall be entitled to communicate to the father any concerns that she has or any suggestions she wishes to make for the progress and well-being of the child; and

(c) The father shall give due regard to such matters as are raised by the mother but, in the event that no agreement is reached, the father shall be the person to make the final determination or decision.

Live with/spend time with

3. The child live with the father.

4. The child shall spend time with the mother during NSW school terms as agreed between the parties and, in default of agreement, the following shall apply:

(a) The mother shall spend time with the child each alternate weekend from after school on Friday or 4.00 pm on a non-school day until:

(i) before school on the following Monday, or;

(ii) before school on the subsequent day to a public holiday, or

(iii) 9.00 am the following Monday, in the event it is a non-school day.

5. For the purpose of any changeovers from school or after-school care, and on a without-admissions basis:

(a) The child shall be collected from after-school care (“AH Care”) by the mother or a nominee known to the child with the father’s written consent;

(b) Once the child is collected, the mother and the child shall leave the premises as promptly as possible.

6. Otherwise, on a non-school day, the father shall collect the child from a railway station at the conclusion of her time with the mother and this changeover will be supervised by AJ Family Services up until the child turns thirteen (13) years old.

7. The costs associated with the supervised changeover in Order 6 above will be shared equally between the parties.

School holiday time

8. The child shall spend time with each parent during NSW school holiday periods as follows:

(a) Short NSW school holidays: with the father in the first week and with the mother in the second week.

(b) Long NSW school holidays:

(i) Even numbered years: With the mother in the first, second and fifth weeks and with the Father in the third, fourth and sixth weeks.

(ii) Odd numbered years: With the mother in the first, third and fifth weeks and with the father in the second, fourth and sixth weeks.

9. For the purposes of calculating school holidays:

(a) School holidays are calculated in accordance with the calendar of the school that the child is attending;

(b) School holidays commence at 4.00 pm on the last Friday of the school term and conclude at 4.00 pm on the Friday immediately prior to the next school term commencing;

(c) Weekly changeovers will occur each Friday at 4.00 pm;

(d) The mother’s usual time pursuant to Order 4 is suspended throughout the duration of the school holidays and resumes on the first Friday of Week 1 of the following school term.

10. Changeover during the school holiday periods will be in accordance with Orders 6 and 7 above.

Special days

11. The child shall spend the following special occasions with each parent as agreed between the parties and, in default of agreement, as follows:

(a) With the father on the Father’s Day weekend from the conclusion of after-school care (or 4.00 pm) on Friday until Sunday 5:20 pm.

(b) With the mother on the Mother’s Day weekend from the conclusion of after-school care (or 4.00 pm) on Friday until Sunday 5:20 pm.

(c) The child shall spend time with each parent on Easter, as agreed between the parties, and failing agreement, as follows:

(i) In even numbered years, with the father from 4.00 pm on the Thursday before Good Friday until 4.00 pm on Easter Monday.

(ii) In odd numbered years, with the mother from 4.00 pm on the Thursday before Good Friday until 4.00 pm on Easter Monday.

(d) The child shall spend time with each parent on Christmas as agreed between the parties and, failing agreement, as follows:

(i) In even numbered years, with the father from 12.00 pm on Christmas Eve until 12.00 pm on Boxing Day.

(ii) In odd numbered years, with the mother from 12.00 pm on Christmas Eve until 12.00 pm on Boxing Day.

and any other Orders that are inconsistent with this paragraph are suspended so as to allow time with each parent on these special occasions to occur; changeover will occur in accordance with Order 6 and 7 above.

Communication

12. On those occasions that the child is spending time with one parent, that parent shall facilitate the child communicating with the other parent as agreed between the parties in writing, and, in the absence of agreement, the following Orders 13, 14 shall apply.

13. The father facilitate telephone, FaceTime, Skype or Zoom calls between the mother and the child each Wednesday at 5.00 pm and Sunday at 8.30 am for a period of no longer than 15 minutes.

14. Whilst the child is spending time with the mother, the father have one (1) telephone, FaceTime, Skype or Zoom call with the child for a period of no longer than 10 minutes twice a week.

15. The parties keep each other informed as to their current residential address, email address, landline and mobile telephone numbers and inform the other party of any changes to any of these details within 48 hours of such change.

16. Other than in a case of emergency, the parties shall communicate only in respect of arrangements for the child in writing, by e-mail only.

Specific orders

17. The mother is authorised to obtain from the school or any extracurricular organisation at which the child is enrolled or registered, any notices, newsletters, letters, reports, certificates and photograph order forms.

18. The parties are to adhere to the recommendations of any medical practitioner selected by the father or to whom the child is referred.

19. Notwithstanding any injunction to the contrary, the child receive age-appropriate vaccinations and maintain an appropriate vaccination schedule in accordance with the recommendations of Dr C (or his nominee or such other paediatrician or medical practitioner attended upon by the child), including any COVID-19 vaccinations.

20. In the event the child suffers any significant injury or illness while in their care, the parent with care of the child is to inform the other parent without delay of the nature of the injury or illness and the name of any health professional to whom the child has been referred.

21. The father is permitted to provide a copy of these orders to the child’s school, medical practitioners, and any passport authority.

22. The parties be restrained from:

(a) Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent has a relationship with, with the parent’s knowledge or in their presence;

(b) Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;

(c) Permitting the child to have access to any of the documents filed in these proceedings;

(d) Causing the child to be a medium in any way between the mother and the father or between the mother and the father and any other person;

(e) Communicating any information intended for the other parent through the child;

(f) Consuming illicit substances within 24 hours of spending time with the child;

(g) Causing or allowing to cause the child to be in attendance at any music festivals;

(h) Causing or allowing to cause any naked photograph of the child to be uploaded or accessible on any social media or internet platform;

(i) Causing or allowing to cause the child to be naked in a public place or social event, including but not limited to festivals, the beach, parks etc;

(j) Bringing the child into contact with or allowing the child to remain in the presence of a person who the mother or father knows is under the influence of illicit drugs or mind-altering substances, other than as prescribed by a general practitioner;

(k) Posting or publishing anything about any aspect of these proceedings online;

(l) Painting on the child’s body or allowing a third party to do so.

23. The mother is restrained from:

(a) Attempting to restrain or otherwise restraining the father from taking the child to receive her vaccinations;

(b) Discussing with the child her views on vaccinations;

(c) Making inappropriate remarks in the presence or hearing of the child about the father’s household including but not limited to diet, hygiene and lifestyle differences;

(d) Removing the child from the Greater Metropolitan Sydney, City AL or Region R areas unless otherwise agreed between the parties;

(e) Recording telephone calls or changeovers with the father;

(f) Criticising the father, his parenting or discussing the orders or these proceedings with the staff at the child’s school, staff at the extra-curricular activities the child attends, or after-school care staff;

(g) Attending the child’s school events or extra-curricular activities to which parents are normally invited, unless the father consents;

(h) Communicating in any way whatsoever with AC and AB.

24. The Independent Children’s Lawyer be discharged.

25. In the event that any party wishes to make an application for costs in respect to the proceeding heard on 20 March 2023 and/or the substantive proceedings, within 14 days of the date of these orders, they are to serve upon each other party written submissions of no more than two pages with such submissions to also be forwarded by email to my Associate.

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.

Background

Background to the litigation

Having considered the background to this matter and the parties’ conduct since the orders of Judge M Neville made on 31 January 2020, I am satisfied that it is in the best interests of the child for there to be a continuation of current parenting arrangements, save to the extent that I will make orders for the time that the child spends with the mother to be extended from changeover occurring on Sunday afternoon to changeover occurring at the child’s school on Monday morning.BACKGROUND The background to the parties’ relationship is set out in the judgment of Judge M Neville dated 31 January 2020 and will not be further detailed in these reasons.First tranche of proceedings The parenting arrangements for the first two years of the proceedings were as follows:[1]7.On 12 December 2018, the parties entered into interim consent orders providing for [the child] to live with the Mother and spend time with the father each alternate week from 10.00am Friday until 3.00pm Monday. 8.On 1 October 2019 orders were made extending [the child’s] time with the Father from 1.00pm Thursday to 3.00pm Monday each alternate week. These orders continue to be in place at the time of the final hearing.[1] Saracuna & Siddele [2020] FCCA 174. The parties participated in a final hearing before Judge M Neville from 13–16 January 2020. Her Honour delivered final judgment on 31 January 2020.Findings of Judge M Neville – 31 January 2020 In their affidavits filed in these proceedings, both parties traversed the history of their relationship, including in respect to matters that were the subject of factual findings by Judge M Neville in her reasons for judgment dated 31 January 2020: Saracuna & Siddele [2020] FCCA 174. Neither party, however, presented evidence nor made submissions which satisfied me that the findings made by Judge M Neville were erroneous. In those circumstances, pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) (“the Act”), I propose to adopt the findings of Judge M Neville as set out in those reasons for judgment. The findings that are significant for the purpose of the decision that I make in these proceedings are set out immediately below. On occasions, where relevant, I have related the findings of Judge M Neville to those that I am required to determine in respect to the evidence presented in the case before me. At [38], Judge M Neville found the father to be a truthful witness. Comparatively at [51], her Honour found that the mother’s evidence “was, at times, non-responsive and tangential.” Judge M Neville further observed:51.At times, the Mother’s answers were not directed to the question she was asked, but rather directed to what she wanted to say. On more than one occasion, the Mother had to be reminded and directed to focus on the questions she was being asked and to provide responsive answers.52.For the most part, I formed the view that the Mother was a truthful witness insofar as she saw matters, however, I consider that at times she obfuscated by answering difficult questions in a non-responsive fashion or by becoming argumentative.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.