SIDDELL & SIDDELL
[2020] FCCA 3350
•9 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDDELL & SIDDELL | [2020] FCCA 3350 |
| Catchwords: FAMILY LAW – Interim parenting arrangements for four children aged 14 to 9 – mother has made allegations of being the victim of serious family violence over many years during the parties’ relationship – father denies allegations – father has spent time with children at CCC and pursuant to the supervision of lay-persons – father seeks relaxation of supervision – mother seeks continuation of supervision – father contesting family violence order – father not subject, as yet, to police charges – nature of interim hearing – section 60CC factors – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68LA |
| Cases cited: B & B (1993) FLC 92-357 |
| Applicant: | MR SIDDELL |
| Respondent: | MS SIDDELL |
| File Number: | ADC 1336 of 2020 |
| Judgment of: | Judge Brown |
| Hearing date: | 27 November 2020 |
| Date of Last Submission: | 27 November 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 9 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroeder |
| Solicitors for the Applicant: | O'Keefe Schroeder |
| Counsel for the Respondent: | Ms Partridge |
| Solicitors for the Respondent: | Hume Taylor & Co |
| Counsel for the Independent Children's Lawyer: | Ms Atchison |
| The Independent Children's Lawyer: | Nicola Atchison |
ORDERS
UNTIL FURTHER OR OTHER ORDER:
That all previous parenting orders be discharged.
That the parents do have equal shared parental responsibility for X born in 2006, Y born in 2008, Z born in 2010 and W born in 2011 (“the children”).
That the children live with the mother.
That pursuant to s.62G(2) the father, mother and the children attend upon a family consultant nominated by the Coordinator, Child Dispute Services, at Adelaide for the purposes of the preparation of a Family Assessment Report in this matter and that such report be made available to the Court 14 days before the next listing of the matter in February 2021.
That the father do spend time with the children as follows:-
(a)Each alternate weekend from 10.00 am until 5.00 pm on both Saturday and Sunday commencing 12 December 2020;
(b)From 3.00 pm until 8.00 pm on Christmas Day 2020;
(c)At such other times as may be agreed in writing between the parents.
That any handovers for time spending shall be as agreed in writing between the parents and failing agreement on the footpath outside of the Town B PROVIDED HOWEVER that the mother may have a support person present for or to conduct handovers.
That the father be at liberty to communicate with the children via phone or other electronic media (including video calls) each Tuesday and Thursday (or such other days as may be agreed in writing between the parents) between 5.00 pm and 7.00 pm (or such other times as may be agreed in writing between the parents) for no longer than 30 minutes.
That both parents shall facilitate any or all of the children telephoning the other parent whilst they are in his or her care at the request of any or all of them PROVIDED HOWEVER that such request is made no later than 8.00 pm.
That the mother shall ensure that Y attends all scheduled appointments with Dr C (or such other counsellor as may be agreed in writing between the parents if Dr C is not available) for as long as recommended by Dr C and the father pay any gap arising between the medicare funding and the fee charged.
That the mother shall maintain her involvement with and counselling (if applicable) with D Domestic Violence Service, SAFV and Dr E.
That both parents do undertake the Circle of Security parenting program as soon as possible and provide proof of completion of the same to the Independent Children’s Lawyer and the other parent’s lawyer within 48 hours of receipt of the same.
That both parents do undertake such parenting programs as may be recommended by the Independent Children’s Lawyer taking into account work and other commitments.
That both parents do keep each other informed of their current mobile phone number and advise any changes to the same in writing within 24 hours.
That the parents shall communicate on all issues regarding the care, welfare, development, health, education and time spending arrangements for the children only via the Devito parenting App (or such other App as may be agreed in writing between the parents).
That both parents shall use only respectful and polite language in all communications in accordance with paragraph 14 hereof.
That the parents shall inform the other as soon as is reasonably practicable of any serious childhood illness or medical emergency affecting any of the children whilst in his or her care.
That both parents are hereby authorised to obtain such information from any school attended by the children as is usually provided to caregivers including but not limited to school newsletters, school reports and school photographs and to attend such events/functions to which caregivers are normally invited to attend including but not limited to school assemblies, school concerts, Sports Days and Parent/Teacher interviews PROVIDED HOWEVER that the father shall give the mother at least 48 hours’ notice in writing of his intention to attend any event/function in accordance with the provisions of paragraph 14 hereof.
That both parents are hereby authorised to liaise with, obtain information from, provide information to and attend appointments with any medical specialist, GP, dental practitioner, allied health professional, psychologist, counsellor and/or therapist that X, Y, Z and/or W may consult with from time to time.
That in respect of paragraph 18 hereof, neither parent shall participate in any appointment that the children with any psychologist, counsellor or therapist unless at the specific request of such psychologist, counsellor and/or therapist.
That in respect of paragraph 18 hereof, the father shall not attend any such appointment when the mother is also present without the prior written consent of the mother.
That the parents be restrained and injunctions are hereby granted restraining each of them from:-
(a)Insulting, abusing, rebuking or denigrating the other in the presence of or within the hearing of the children or allowing any other person to do so;
(b)Discussing these proceedings or any allegations made in these proceedings in the presence of or within the hearing of the children or allowing any other person to do so;
(c)Permitting the children to read any document filed in or produced for use in these proceedings or allowing any other person to do so;
(d)Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, the other parent, the other parent’s family or allowing any other person to do so.
That further consideration of the matter be adjourned to 17 February 2021 at 9.30am for directions in Mount Gambier.
IT IS NOTED that publication of this judgment under the pseudonym Siddell & Siddell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1336 of 2020
| MR SIDDELL |
Applicant
And
| MS SIDDELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case concerned with risk, and its assessment, in the context of very serious allegations of family violence, which are strenuously denied. It is the position of the mother, who asserts that she has been vilely sexually assaulted, that the court needs to approach the children spending time with the father with extreme caution.
On the other hand, the father, who is the subject of the allegations, asserts that they have been comprehensively investigated by the relevant authorities and found to have no substance. As such, it his position that the court needs to be more proactive in ensuring the children concerned maintain a meaningful level of relationship with him.
The case arises at the interim stage and occurs concurrently with proceedings in other courts, chiefly the Victorian Magistrates Court, which are also highly controversial, as the parties disagree fundamentally about their progress.
Whilst Vic Police have clearly been involved, the court has hitherto taken a cautious approach. Controversy arises, at this interim stage, as to what further steps will be taken by the relevant authorities and what are the implications of such steps for the children concerned. Essentially, as I understand it, there is disagreement as to whether there are outstanding complaints regarding allegations of assault on the children concerned.
As a consequence of these issues, it is clear to me that the family involved in this case is deeply divided. For obvious reasons, this cannot be helpful for the four children concerned. It also renders it extremely difficult for the court to determine what outcome is likely to be best calculated to serve their interests.
If I do what the father wishes, the mother will feel unheard and disregarded. She is also likely to think the children’s protection has been undervalued. If I do what the mother wishes, the father will consider the court is acting on unproven allegations and has undervalued the importance of the relationship the children have with him.
In Marvel & Marvel[1] the Full Court indicated that very often, in interim proceedings, where issues of serious risk are raised, it is often incumbent on courts, such as this one, to adopt a cautious approach. The Full Court said as follows:
“Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.”
[1] See Marvel & Marvel (No2) [2010] FamCAFC 101 at [120]
In the current matter, it is the father’s position that, up to this stage, after the proceedings concerned have been on foot for around eight months, he has been prepared to be patient and sensitive to the mother’s position. However, he now asserts it is time for the court to be more proactive. Needless to say the mother continues to urge conservatism in the court’ approach.
Background
The children concerned are X born in 2006; Y born in 2008; Z born in 2010 and W born in 2011. The parents involved in the case are the children’s father, Mr Siddell and their mother Ms Siddell.
They married in 2005 and finally separated on 24 February 2020. During their marriage, they and the children lived in Town F, in rural Victoria. The father is a farmhand; the mother is a public servant, employed by the Employer G.
However, she sustained an injury to her elbow, whilst at work, in 2017, which required surgery in 2019. Thereafter the mother was in significant pain, which required medication. The parties disagree about the implications, if any, of this state of affairs, so far as the significant issues in dispute between them.
The mother and father are not the only parties to the proceedings. Due to the complexity of the issues thrown up by the case, at an early stage of proceedings, it was directed that the children be independently represented in the case.
This was particularly important given the ages of the children as they were likely to be able to express a view about what they would prefer to happen. However, the pandemic emergency has made it difficult for the ICL to interview the children.
The children’s representative is Nicola Atchison, an experienced family law practitioner based in Mt Gambier. She is to be regarded as a party of equal importance to the parents concerned, as she is charged with a statutory obligation, created by the Family Law Act 1975.
Pursuant to section 68LA of the Act, Ms Atchison is required to consider all the evidence available in the case and, if appropriate, gather her own evidence and on the basis of all the evidence available to her, advocate to the court what she thinks is the outcome, which will best serve the interests of the children, whom she represents.
The father commenced the proceedings in early April 2020 seeking orders for the settlement of property and what is commonly referred to as a shared parenting regime, based on the children living for equal periods of time with each of their parents.
At the time of the application, it was his position that the mother and children had left the former family home in Town F and he did not know where they were. At the time, he was subject to an interim intervention order, which had been granted immediately following separation.
The mother filed a response to the application in mid-May. On both an interim and final basis, she sought orders that the children live with her and she have sole parental responsibility for them. Pending final hearing, she proposed professionally supervised time, at the City H Children’s Contact Centre (“CCC”). She did not oppose a property settlement.
The mother’s reasons for seeking only professionally supervised time were expressed in the following terms:
“The Applicant and I separated on a final basis following four (4) years of sexual, physical, emotional and financial abuse.
For the last four (4) years of our relationship the Applicant raped me on no less than one or two occasions each week.
In January of this year the abuse became horrific and there was a period of two weeks where the Applicant raped me up to three times a day whilst the children were in the home. The children would regularly hear me screaming and yelling at the Applicant to stop, however the Applicant would not.
After the Applicant raped me the children would often find me crying and would ask me if I was okay.
This would enrage the Applicant and he would then chase the children to their bedrooms where he would pin them down and hit them. Sometimes, he would hit them with his bare hands but on other occasions he would grab any utensil nearby, such as a wooden spoon, and would hit them.
The Applicant was always careful not to hit me or the children in visible areas limiting it to the torso or arms which could be covered by clothing.
The Applicant rarely physically assaulted our daughter, but the three boys were always subject to violence. Our daughter would only be hit when she intervened to try to protect her brothers.
1 would say the Applicant would physically assault the children up to two times a week and would verbally abuse all four of them on a daily basis.
The Applicant has always had an issue with alcohol but in the last nine (9) months this has exacerbated his behaviour.”[2]
[2] See mother’s affidavit filed 14 May 2020 at [8] – [16]
The father formally responded to these allegations in an affidavit filed on 1 June 2020. He indicated feeling shock, dismay and horror in respect of the allegations made against him and denied them categorically, deposing that any sexual relationships between him and Ms Siddell had occurred consensually.
At this stage, Mr Siddell relied upon an affidavit deposed by Ms J. Ms J is Ms Siddell’s mother and also lives in Town F. It is unusual that a parent supports an in-law in these types of case, where loyalties of blood more often than not prevail.
Ms J deposed that she and Ms Siddell had had a close and productive relationship over many years and she had been involved in the family. It being Ms J’s assertion that the mother had longstanding issues to do with depression.
Clearly, Ms J is not professionally qualified and is not able to opine, as she has done, that the mother continues to experience psychological difficulties, which have been exacerbated by her work place injury. She has also deposed that she has fulfilled more of the role of primary carer, in respect of the four children concerned, than that of the traditional role of grandparent.
Ms J indicated that she had been aware, in general terms, that the marriage between the parties was in difficulties in the period following Christmas 2019 but indicated that she had no knowledge of the significant allegations advanced by Ms Siddell in her recent affidavit. Ms J offered herself as a potential supervisor of the father’s time with the children.
In response, the mother categorised Ms J as a parent whom she did not regard as having been supportive of her. Rather, she characterised Ms J as a critical and abusive parent. She was not supportive of Ms J supervising any time between the children and their father and the tenor of her evidence is that she does not accept much of her mother’s evidence.
Against this extremely difficult background, on 23 June 2020, orders were made for the father to have professionally supervised time, with the children, at the City H CCC for periods of one and a half hours on a fortnightly basis commencing 4 July 2020. A report was to be prepared after the sixth visit.
The CCC report was released in mid-August, after four visits, a fifth visit having been cancelled due to illness. The summary provided of these visits is as follows:
Both parents completed the intake and assessment process for the Children's Contact Service.
It was observed that the children demonstrated affection towards both parents.
Mr Siddell has been interactive and engaged in the activities with the children during their visits at the Children's Contact Service.
Both Parties have been cooperative with staff during contact at the Children's Contact Service.
Ms Siddell has been observed as crying and emotional in front of the children after informing staff that she had sighted Mr Siddell at the front door of the CCS from the driveway exit.
Mr Siddell has been observed to bring gifts or gift cards for the children to each visit.”[3]
[3] See affidavit of Graham James Schroeder filed 13 August 2020
Due to the pandemic emergency, Ms Atchison was not able to interview the children following the CCC visits. The case returned to court on 20 August 2020. On this occasion, it was agreed that the process of supervised time, at the City H CCC would continue but be augmented by some additional time, to be supervised by an agreed lay person, not exceeding four hours, on the weekend following the professionally supervised time.
The agreed supervisors were Mr K and Ms L, both of whom describes themselves as being friends of the parties. Mr K lives in City H; whilst Ms L lives in Town F. It was recognised that they may not always be available to provide supervision. In these circumstances, on 20 August 2020, the following orders were made in an attempt to resolve this potential difficulty:
“That in the event that neither Mr K nor Ms L are available and/or capable of supervising the father’s time on any occasion, then the father shall notify the mother at least seven days prior to any agreed time spending as per paragraphs 2(b) or 2(c) hereof and nominate an alternate supervisor and/or supervisors.
That within forty eight hours of the date of provision of the alternate supervisor or supervisors referred to in paragraph 4 hereof, the mother shall advise the father in writing of her consent and/or objection to any of the nominated supervisors including specific details of the basis for any objection.
That in the event that no alternate supervisor or supervisors are able to be agreed in accordance with the terms of this order, then the Independent Children’s Lawyer shall nominate from the list provided by the father the person who will act as alternate supervisor taking into consideration any objections raised by the mother PROVIDED HOWEVER that if the mother is able to raise reasonable and sound objections to each nominated alternate supervisor then the Independent Children’s Lawyer shall not be bound to agree to any of them.”
The issue currently confronting the court is whether it is now appropriate for the father’s time, with the children, which he perceives has proceeded uneventfully, should move to being completely unsupervised. At this stage, it is Mr Siddell’s position that the regime of supervisors is unnecessarily complex and, as Christmas approaches, Mr K and Ms L will have their own family commitments and other potential supervisors, nominated by him pursuant to the 20 August order, live in Melbourne and cannot easily travel.
On the other hand, it is the mother’s position, supported by the independent children’s lawyer, that the time should continue to be supervised. Ms Siddell is, however, prepared to waive the requirement so far as Christmas Day is concerned.
The father’s proposal is that the time should be on alternate weekends, on each Saturday and Sunday between the hours of 10:00am and 5:00pm. At this stage, he does not agitate for overnight time. So far as Christmas Day is concerned, he proposes that the time be between 3:00pm and 8:00pm.
The mother is open to the father’s time with the children being increased along the lines proposed by Mr Siddell. However she opposes the removal of supervision until such time as there has been a detailed family report prepared. Ms Atchison supports the continuation of supervision and proposes that the time be each alternate Sunday from 10:00am until 5:00pm.
Everyone agrees that the children should be exchanged, between the parties, on the footpath outside the Town B Police Station. Mr Siddell is open to Ms Siddell having a support person, with her, at handovers, if this is what she wishes.
It is also agreed that the children should continue to communicate, with their father, by electronic means each Tuesday and Thursday between the hours of 5:00pm and 7:00pm, provided that the calls are no longer than 30 minutes in duration.
Other agreed orders deal with Y being able to continue to attend a counsellor and the parties communicating, with one another, when necessary, in a respectful manner and keeping each other informed as to issues relating to any illness or emergency affecting the children.
In support of his application, Mr Siddell has deposed that Vic Police charged him with one count of threatening to kill the mother. However, this charge was withdrawn by the prosecution on 17 April 2020. He has not as yet been charged with any other offence.
On 26 September 2020, the father was interviewed by police in respect of the allegations of sexual assault, on Ms Siddell. In the interview, he continued to deny the allegations. He has not as yet been charged with any offence or been advised when any decision will be made in respect of the matter.
On 4 March 2020, the Town B Magistrates’ Court, on the application of a police officer, granted an interim family violence order against the father, naming the mother as the protected person. The father has subsequently opposed the making of any final order. This controversy is listed for further directions, before the court, on 2 December 2020.
The relevant police officer has acknowledged that the evidentiary scenario on which the application for an interim family violence order related to was the allegation that Mr Siddell had threatened to kill Ms Siddell on 24 February 2020, which was the date of their final separation. The incident summary report, provided by the police, reads as follows:
“THE AFM AND RESP HAVE BEEN·'TOGETHER FOR 19 YEARS AND HAVE BEEN MARRIED FOR 14 YEARS; THEY HAVE 4 CHILDREN TOGETHER THAT LIVE AT THE HOME ADDRESS. ON MONDAY THE 24TH FEB 2020, THE RESP RETURNED HOME FROM WORK AROUND MIDDAY, AN ARGUMENT BEGAN BETWEEN THEM. THE RESP WENT. BACK TO WORK SOON AFTER. AT APPROXIMATELY 6:00PM THE RESP RETURNED HOME AND ANOTHER ARGUMENT BEGAN. THE RESP STATED HE IS GOING TO LEAVE THE AFM AND BEGAN PACKING HIS CLOTHES.
ON THE WAY OUT OF THE FRONT DOOR THE RESP THREATENED TO THE AFM BY STATING, "I WILL KILL YOU FOR RUINING MY LIFE".
THE AFM STATED THE RESP HAS BEEN PHYSICAL WITH HER IN THE PAST AND WAS SCARED THAT HE WOULD CARRY OUT THE THREAT.
THE AFM BELIEVES THE RESP ALSO STALKS HER, BY DRIVING PAST HER HOME ADDRESS CONTINUOUSLY SINCE THE INCIDENT ON THE 24TH FEB 2020.
THE AFM STATED THE FRONT SLIDING GLASS DOOR HAD BEEN TAMPERED WITH AND AS A .RESULT CANNOT BE LOCKED. AFM BELIEVES RESP TAMPERED WITH LOCKING MECHANISES HOWEVER-NIL CCTV OR WITNESSES.”[4]
[4] See annexure 1 to the father’s affidavit filed 30 October 2020
The police did not attend the incident of 24 February. It is further noted that the parties’ four children were present, at the home, at the time of the incident, however police were unaware if they had witnessed the incident. The mother did not require any medical attention following the incident.
On 2 September 2020, Vic Police sought to amend the interim family violence order to include the children as protected persons. The father’s solicitor has deposed that not only was this application opposed by Mr Siddell, but also by the relevant prosecutor concerned, who declined to make the application. The police solicitor has subsequently confirmed that the allegations of sexual assault and the other issues raised by Ms Siddell in her statement to police, have not formed any part of the case raised in respect of the family violence order.
Ms Siddell has provided a medical report from her treating medical practitioner, Dr E. Dr E has been her GP since 2011, including an intense period involving the management of her elbow injury, from late 2016 onwards. Dr E reports that she first learnt of the mother’s allegations of abuse concerning Mr Siddell arose, in March of 2020 following the parties’ separation.
In addition, the mother has provided reports from two domestic and family violence services, based in City H and Region M respectively, which indicates that Ms Siddell has been receiving counselling from 26 February 2020 onwards. Ms Siddell herself has completed two parenting courses.
Ms Siddell has also deposed that the children concerned have been referred for their own counselling through the student support services at their school. They have also been offered counselling through the sexual assault and family violence centre, but have apparently declined this form of counselling, which is currently only available on the telephone.
I have not as yet been provided with any independent evidence as to how the children are coping with their current situation or what is the view of any particular counsellor with whom they have engaged. It is however the mother’s view that the children’s behaviour has markedly improved since they have undertaken some courses with OzKid.
In respect of the orders, which she seeks in the matter, Ms Siddell has deposed as follows:
“I am agreeable to an increase in the length of time the father spends with the children, however, I maintain this should be on a supervised basis. I recognise that the children love their father and want a relationship with him. What I am concerned about is the father's lack of insight into the effect his words and actions have on the children.
Since our matter was last in court there have been incidents of the father using inappropriate language in front to the children, telling the children to refuse to do what I ask of them and more concerning, exposing them to information surrounding the SOCIT investigation, discussions with the Independent Children’s Lawyer and the current police investigation.”[5]
[5] See mother affidavit filed 25 November 2020 at [18] – [19]
In these circumstances, she seeks the continuance of supervision at least until such time as there is a detailed family report and it is known what will be the outcome of the police investigation, as to do otherwise has the potential to expose the children to further risk. From the father’s perspective, the delay this will involve creates its own risks so far as imperilling the warmth and intimacy of his relationship with the children.
Since the matter was last in court Ms Siddell has provided a copy of her statement to police dated 28 February 2020. It is a thirteen page document. In her statement, she provides confronting personal details of her relationship with the father, from its earliest stages in 2005.
In the main, her complaints are of violent and non-consensual sexual intercourse on the part of the father towards her. The only reference to misconduct, in respect of the children, is as follows:
“When he would come home angry he would yell at the kids for no reason, he would chase them into their bedroom and pin them to their beds and hit them, it was generally always the boys he did this with.”
I have not been advised as to whether any of the children have been interviewed in respect of these matters or whether any complaints have been made to any independent authorities, such as a teacher or medical practitioner. As previously indicated, I have not been provided with any report from any of the various counselling services, to whom the children have been referred, since their parents’ separation.
Although I appreciate it is a somewhat simplistic analysis, at this stage, the issue of family violence relies on a resolution of whether the father or the mother is accepted as being truthful. At this stage, there does not appear to be any objective or independent evidence to support either party’s account. An interim hearing does not provide a forum for the resolution of credit issues.
From the father’s perspective, the one criminal charge against him has been withdrawn; he is contesting the family violence order, which relies on an oral statement attributed to him, allegations of interference to a glass door and stalking; he has been interviewed in respect of the sexual assault allegations but not charged.
He further point to the temporal circumstances of the allegations which were made post separation, in acrimonious circumstances, and are not apparently supported by Ms Siddell’s mother, who was intimately involved with the family and which he impliedly contends affects their cogency.
From the mother’s perspective, the allegations must be regarded as going to issues relating to her and the children’s fundamental physical and emotional safety and so must be approached conservatively by the court. Fundamentally she and the Independent Children’s Lawyer advocate that the court should be careful not to approach issues of violence solely on an unduly mechanical basis.
This dichotomy of evidence cannot be ignored given the welfare concerns raised in the case. As the Full Court indicated in SS v AH:
“It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
However, the court is still able (and required) “to weigh the probabilities of competing claims” within the context of assessing “the likely impact” on the children concerned if a controversial assertion is either acted upon or rejected. [6]
[6] See SS v AH [2010] FamCAFC 13 at [100]
In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.[7]
[7] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
The nature of an interim hearing
By their nature, interim hearings invariably arise against a background of serious family crisis and controversy. Given the urgency arising, such cases have to be listed expeditiously.
Although this case has been before the court for close to eight months, it remains surrounded by crisis. The investigations by the police remain unresolved. It is uncertain whether Mr Siddell will be charged with any offence. If he is, it may be months, if not years, until those matters are resolved by the criminal courts.
Yet issues of urgency remain in the case. From the father’s perspective, the need for him to reconnect more completely with the children remains the pressing one and cannot be left in abeyance until the resolution of the criminal proceedings.
Against this background, the court, largely with the agreement of the parties themselves, has proceeded in a conservative and incremental manner in respect of what time the children should spend with their father.
Necessarily, this has not enabled it to grapple with the resolution of the central evidentiary issue in the case, which can be expressed as follows: have the children and the mother been exposed to incidents of family violence and abuse.
I cannot resolve this issue in the context of an interim hearing, which involves only the reading of affidavit material. Due to the pressure of its business, the court is rarely afforded the opportunity to conduct a lengthy hearing, involving cross-examination of parties, which would enable factual issues to be resolved on the basis of findings of credit, at this interim stage.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[8]
[8] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
In addition, at this comparatively early stage, I have not been provided with any independent and expert evidence of the case from the children’s point of view, in the form of a family report. Such a report is likely to canvas the views of the children and explore the nature of their relationship with each of their parents. For obvious reasons, such a report is likely to be a key piece of evidence, as this case unfolds.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a);(b);(d);(e);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The views of the children concerned and any factor influencing such views, including their level of maturity;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·Effects of a child being separated from a parent;
·Logistical issues relating to a child’s right to maintain parental relationships;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (j), directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[9] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[9] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
This is the essence of Mr Siddell’s case. He feels excluded from taking a meaningful part in the lives of X; Y; Z; and W. It is his case that, prior to separation, he interacted with them on a daily basis. In this context, he relies on the mother’s concession that the children love their father. He also points to what he would characterise as a positive report from the City H CCC.
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
It is the mother’s case that the children, particularly the boys, have been assaulted by the father. She also alleges that the children have been caused serious psychological harm as a consequence of being exposed to family violence, which has included family violence inflicted upon her. At this juncture, apart from the mother’s allegation of these matters, there is no evidence available to corroborate these assertions.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. It is the tenor of Ms Siddell’s case that Mr Siddell’s conduct towards her, during their marriage, was aimed at coercing and controlling her.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
It is the mother’s case that the four children concerned have been exposed to family violence by experiencing its effects both personally and vicariously through what has happened to her.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[10]
[10] See Eaby & Speelman (supra) at 80,322 [21] per W J
This is the mother’s position. It is her case that she actively concealed her frequent injuries, inflicted by the father upon her, from the world at large, during their lengthy marriage. It was only after the parties separated that she gathered up the courage to report her concerns, first to the police and then family violence services and her doctor.
The father asserts that there is no evidence to support the mother’s claims apart from her assertion of them. In these circumstances, he would want the court to closely examine the evidence currently available in assessing the level of risk arising for the children, including the risk of having a curtailed relationship with him on the basis of uncertain proof.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Where family violence is endemic in a parental relationship, it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[11]
[11] See In The Marriageof Patsalou (1994) 18 Fam LR 426
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.
Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child. It is the mother’s case, as I understand it, that on-going supervision is required on the basis of her allegation that the father continues to speak inappropriately, about adult issues, to the children and undermine her relationship with them.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. If the mother’s allegations are true, the father potentially represents an extremely flawed role model for the children and has both exposed them to family violence and abused them.
In Deiter & Deiter,[12] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[12] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [13]
[13] Slater & Light [2013] FamCAFC 4 at [37]
After assessing the risk, which cannot be deferred at the interim stage, on the basis of deficiencies arising in the evidence then available, the court must consider what response is proportionate the degree of risk so identified. Clearly the range of options can range from no time to either equal time or substantial and significant time.
In many cases, at the interim stage, a conservative approach to the risk identified may be some form of supervision, in either a professional or lay form, or the restriction of time to daylight hours in tandem with injunctive orders. Such outcomes must be considered in the light of the degree of risk of an adverse outcome occurring.
In W and W[14] the Full Court was reluctant to place strict guidelines as to when supervision was required and what form it should take. They said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[14] W & W (Abuse allegations; unacceptable risk) (2005) FLC 93-289 at [115]
In W & W, the Full Court spoke of a tension arising between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision, which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship. Supervision has limitations.
Supervision may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. In this case, Mr Siddell concerns, vis-à-vis supervision, can be summarised as follows:
·It is not necessary given the success of the professionally supervised CCC time and in the light of the fact that the lay supervision which has followed;
·As such, it is now appropriate for the regime of time to be normalised as much as possible;
·It is unduly artificial and is disproportionate to the threat which he is said to represent to the children, given the focus of the mother’s case on assaults against her;
·More significantly, it is likely to be logistically difficult to continue as his supervisors have their own personal commitments.
On the other hand, it is the mother’s case that she remains psychologically vulnerable, as evidenced by her involvement with her doctor and the various family violence centres, which continue to assist her. In these circumstances, it is her contention that, as the children’s primary carer, how easily or otherwise she copes emotionally with a regime of time must also play a part in how the court assesses any risk arising for the children.
In B & B[15] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[15] B & B (1993) FLC 92-357 at 79,780
Before turning to summing up the case and the appropriate orders to be made at this provisional stage, it is necessary for me to set out, as briefly as I can, the pathway I must follow at the interim stage. Essentially the court is called upon to balance competing considerations to arrive at the outcome it considers will serve the best interests of the children concerned.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.[16]
[16] See section 60B
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Conclusions
I apologise to the parties concerned for the length of this judgment and point out, once again that, notwithstanding its length, its conclusions will be provisional in nature and capable of reversal at a later stage once further evidence is to hand.
I have found this to be an extremely difficult and finely balanced case. This is because the allegations involving the father fall into a most serious category but, at the same time, the evidence relating to them is not extensive, but may potentially have very serious implications for the quality of his relationship with the children..
At the same time, in my view, it is also noteworthy that the parties have been separated for a period approaching a year. During this period, the father has progressed from no time with the children; through professionally supervised time; and then periods of lay supervision.
On one view the father had little alternative, given the serious allegations against him, other than to proceed cautiously and incrementally. On the other hand, it is the submission of his counsel that his approach is indicative of insight and some sensitivity towards the mother. What is more significant is that there have been no additional charges against the father and the police have not been involved with the parties directly since separation.
The mother has made some criticisms of his behaviour during this progression but the evidence, in my view, indicates that it has occurred without any significant level of difficulty. It is also evident from the CCC report that the children concerned have a significant level of relationship with their father. The children were described as being affectionate towards their father and he is noted to have managed their activities appropriately.
In these circumstances, it seems to me highly probable that the children will derive benefits, in all sorts of ways, from interacting regularly with their father. This is a significant finding, which I think is open on the evidence available to me, particularly in the light of the mother’s concession that the children love their father and want a relationship with him.
The strength and significance of these relationships is a significant factor in favour of the court attempting to normalise, in an extraordinarily difficult situation, the circumstances surrounding the father’s future interactions with the children.
On the other hand, the family violence alleged against the father is very serious and, if true, must have significant implications for the psychological welfare of the children. It is the mother’s case that the children were aware that she was being violently mistreated by the father over very many years and they themselves were also assaulted.
Children learn their behaviour from how influential adults around them behave. A parent who uses coercion and control in a relationship is not an appropriate role model for children. If Y, Z and W have been exposed to this kind of behaviour from Mr Siddell it may influence the way they behave towards women in their own mature relationships. The same types of considerations may arise for X regarding how she perceives women are to be treated in marriage-type relationships by their partners.
However, at this juncture, if arrangements for handover occur at a secure location, it would appear that the prospect of the children being exposed to any further episode of violence between their parents is a remote one. However, I am not in a position to overlook the level of anxiety arising for Ms Siddell personally, at the prospect of managing arrangements, with Mr Siddell, in the absence of a supervisor. This is a significant factor militating in favour of the continuation of supervision.
I accept that logistical issues do arise as a consequence of having two primary supervisors, who have already assisted the family concerned for a reasonable period of time, which is augmented by a list of subsidiary supervisors. Necessarily, this is a somewhat cumbersome arrangement. More significantly, the supervisors concerned have their own family responsibilities and lives to lead.
As such, it is unreasonable to expect that such intermediaries can be utilised ad infinitum. Ultimately supervision can only be a temporary or stop gap measures. Supervision cannot continue indefinitely until W is a teenager in about five years’ time. At some stage the parties themselves will have to manage the handover of the children themselves. This is a factor which militates in favour of reducing or curtailing supervision.
The ages of the children concerned is also a relevant factor, in my view. Their ages range from 14 years to 9 years. They are not highly vulnerable children by virtue of extreme infancy. I would also expect that they will provide mutual support and reassurance to one another as a group.
In addition, the father does not seek particularly extended periods of time and currently no overnight time. The major detriment of his proposal is that it envisages four exchanges within 31 hours. However, the proposed location of the handover is at a place where there should be ready recourse to authority, if required.
In my view, as such, the orders proposed cannot be regarded as outlandish or unduly experimental, particularly given the content of the CCC report. They are proportionate both to the obvious level of tension and mistrust between the parties and the risk posed to the children by the father.
The family violence order in this matter is an interim one, which is based on the allegation that the father made a threat to kill the mother, whilst leaving the family home, on the date on which the parties finally separated. The criminal charge, in respect of this matter was withdrawn. The father has not been charged with stalking or any offence relating to the screen door. The family violence order is being contested.
I do not consider that I am currently in a position to form a reasonable belief that family violence has occurred at this interim stage. That is not to say I do not consider anything other than that family violence, and its potentially corrosive consequences for the children, is not the central issue in this case.
On this basis, at this interim stage, it is not reasonable for the presumption of equal shared parental responsibility to be applied in the case. Having considered all the relevant section 60CC factors applicable to the case and whilst bearing in mind the limited nature of the evidence before me, I have reached the conclusion that it would not represent an unacceptable risk for the children concerned in this case for me to make the orders as proposed by the father.
The effect of these orders is to waive the need for supervision but still maintains a fairly constrained regime in which the children engage with their father. The next procedural step required is to order a family report pursuant to section 62G of the Act.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 9 December 2020
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