Sidden and Tanda and Anor

[2021] FCCA 674

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDDEN & TANDA & ANOR [2021] FCCA 674

Catchwords:
FAMILY LAW – Parenting – children aged 12 and 13 who are living with their father – issues in dispute whether the mother and father should have equal shared parental responsibility and whether an order should be made for the children to spend time with the mother and the maternal grandmother – where the mother’s current husband has perpetrated family violence and abused the children – where the mother is unwilling or unable to leave that relationship – no order made for the children to spend time with the mother – where the maternal grandmother is in denial about the nature of the mother’s relationship – no order made for the 12 year old to spend time with the maternal grandmother – 13 year old to spend time with the maternal grandmother in accordance with his wishes – where the parents are incapable of sharing parental responsibility – father to have sole parental responsibility for the children.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA

Applicant: MR SIDDEN

First Respondent: MS TANDA

Second Respondent: MS CHALLIS

File Number: NCC 4139 of 2019

Judgment of: Judge Terry

Hearing date: 5 March 2021

Date of Last Submission: 5 March 2021

Delivered at: Newcastle

Delivered on: 5 March 2021

REPRESENTATION

The Applicant: In person

The First Respondent:	In person
The Second Respondent	In person

Counsel for the Independent
Children’s Lawyer: Mr Mooney

Solicitors for the Independent
Children’s Lawyer: Kristina Wooi Lawyer

ORDERS

1. The children X born in 2007 (“X”) and Y born in 2009 (“Y”) (“the children”) shall live with the father.

2. The father shall have sole parental responsibility for the children.

3. The father shall promptly notify the mother of any major long term decision he makes in the exercise of his parental responsibility.

4. The mother shall spend no time with and have no communication with the children.

5. X shall spend time with and communicate with the maternal grandmother Ms Challis at X’s request.

6. The mother is restrained from contacting or communicating with the children.

7. Unless otherwise provided for in these Orders, the mother and the maternal grandmother are each restrained from:

   a)Approaching the children at the father’s residence or at any other location including their respective schools, sporting or other venue.

   b)Causing a third party to contact or communicate with the children on their behalf.

8. The Independent Children’s Lawyer’s application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sidden & Tanda & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 4139 of 2019

MS SIDDEN

Applicant

And

MS TANDA

First Respondent

And

MS CHALLIS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves parenting issues in respect of X who was born in 2007 and who is 13 and Y who was born in 2009 and who recently turned 12.

3. Y has lived with her father for two years now and she has not had any contact with her mother since she began doing so, or if she has, it has been very little.

4. For most of the time the proceedings have been before me X was living with the maternal grandmother and spending regular time with his father. He has not been spending time with his mother because there has been an order in place prohibiting it.

5. During the trial the maternal grandmother questioned whether the father had always wanted to spend time with X. The father disputed that this had been an issue but that is all water under the bridge now because in December 2020 the maternal grandmother decided that the legal proceedings and the restrictions on who the children could spend time with were all too much and she decided to hand X over to the father.

6. Following the maternal grandmother making that decision I made an order for X to live with the father and things seem to be going reasonably well for him. One advantage of it, as long as they rub along reasonably well together, is that the two close in age siblings are now living together.

7. The issues which remain in dispute are:

   i)The allocation of parental responsibility for the children.  

   ii)Whether orders should be made for the children to spend time with and communicate with their mother.

   iii)Whether orders should be made for the children to spend time with and communicate with their maternal grandmother.

Parental Responsibility

1. I agree with the submission by Counsel for the Independent Children's Lawyer that there is no point me making an order for the mother and the father to share parental responsibility.

2. An order for equal shared parental responsibility gives each parent the right to have a say about major long-term decisions for children, such as where they go to school and whether they see a particular psychologist. It can involve even bigger things like whether a parent relocates, but I do not think the father intends to do that. It can involve decisions about overseas travel.

3. It is usually beneficial for children if their parents share parental responsibility because each parent is different and they bring different perspectives to the decision making.

4. However sometimes the Court has to say, “Well, look, that just is not going to work for children. It is not going to be in their best interests.” If people cannot communicate with each other and dislike each other then they really cannot share parental responsibility, because an order for equal shared parental responsibility requires parents to communicate with each other and attempt to reach a joint decision if a major long term issue arises.

5. If parents cannot do that a number of things can happen which are not good for children. Sometimes a decision is simply not made because one parent is afraid to contact the other parent. Sometimes one parent contacts the other parent and conflict occurs. Sometimes an authority is asked by one parent to provide a service for children and they say “I am not going to do that unless both parents consent” and if the parents cannot talk to each other and reach an agreement the children miss out. I have had that happen in matters involving attendance at counselling and overseas travel where the order in place is an order for equal shared parental responsibility.

6. X has a number of special needs and it is highly likely that major long-term decisions will need to be made about him in terms of counselling, therapy and perhaps even a change of high school. The mother and father are not going to be able to discuss those things in a way which would be good for X and attempt to come to a joint decision.

7. X and Y are living with the father and the appropriate order is that he have sole parental responsibility for them.

8. There is an existing order for the parents to have equal shared parental responsibility for Y but the Court can change orders if circumstances change, and the relationship between the parents has deteriorated so much since that order was made that it is necessary to change it.

Whether an order should be made for the children to spend time with and communicate with the mother and maternal grandmother

1. The more difficult issue in the case is whether any orders should be made for either of the children to spend time with the mother and maternal grandmother.

2. It is clear to me from hearing the mother in the witness box that she loves her children and grieves over the fact that she is not spending time with them.  

3. If the children were reintroduced to their mother in the absence of her husband Mr B it might be that time would go along all right. However the mother is in complete and utter denial about what is happening in her household and about the behaviour of her husband.

4. Even on the mother’s version of events Mr B has pushed and shoved her, and that is family violence. If the mother is ever able to label it as family violence and leave the relationship and if she is able to show that she understands the need to prioritise protecting the children from abuse over protecting a partner or her relationship, then a time might come when it would be good for the children to spend time with her.

5. However it is obviously impossible for her to leave the relationship at the moment and in addition to the issue of family violence involving the mother I am satisfied that Mr B has abused X and Y. Abuse is defined in the Family Law Act and it includes physically harming children and I am satisfied that this has occurred.  

6. To take up a point raised by the maternal grandmother, I do not have to see that happen to know that it has happened. I accept that the things children say are not always reliable but the children have disclosed this abuse to third parties. They have had injuries, and on top of that we know what happened to Mr B’s daughter C.

7. Mr B has abused X and Y as that term is defined in the Family Law Act and the refusal by the mother and the maternal grandmother to accept that just because they did not see it is gravely concerning. I understand that it is difficult for the mother to accept it because it might mean the end of her relationship and her relationship is very important to her at the moment but the fact that she does not accept it has implications for her case.  

8. I could make an order that the children see their mother in the absence of Mr B which would protect the children from Mr B but I am satisfied that unless and until the mother reaches a point in her life where she is willing to accept that she is in an abusive relationship and that Mr B has harmed the children, it is not appropriate to make an order for the children to spend time with her.

9. If the mother steps out of this situation in the future it may be appropriate for the children to be reintroduced to her but it cannot go anywhere at the moment. She is an extremely poor role model for the children in remaining in a relationship where she is allowing herself to be abused and condoning abuse of the children. I am sorry to be harsh, but that is very poor role modelling for children.

10. Nobody would want Y to grow up thinking “I have to put up with being abused by someone; that is what Mum did” or for X to think “I have to put up with being abused by somebody because Mr B abused me and nobody said that was a bad thing.”

11. I am not going to have that role modelling on show for the children and unless and until the mother steps out of that situation, I am not going to make an order for the children to spend time with her.

12. The issue in relation to the maternal grandmother is more difficult. X lived with her for a lengthy period and he told the family report writer late last year that he was content to remain living with her. He obviously does not have a problem with her and if I made an order for him to spend time with her it might be that the time would go reasonably well.

13. However I am concerned about the fact that the maternal grandmother is torn and wants to believe her daughter and is not willing to condemn Mr B.

14. The maternal grandmother has not seen Y for two years, so absent some evidence that Y wanted to go to and spend time with her I would not be making an order for that to happen.

15. I would be tempted to make an order for X to spend time with her were it not for the fact that she is wholly supportive of her daughter and does not recognise the nature of a domestic violence relationship or accept that the children have been abused.

16. X has had a great deal of change in his life, and that is referred to in the Independent Children's Lawyer’s case outline document. People have not been able to cope with his behaviour in the past and he has been bounced around from pillar to post.

17. He is now living with his father who is making a concerted effort to blend him into his family and to seek some assistance for him.

18. X has had a lot of problems and I am not inclined to do anything which might unsettle him or introduce any sort of disruption into his life. Even without that the father might find things do not run smoothly in his home for a lengthy period of time.

19. There is too much hostility and ill feeling between the two sides of the family and the last thing X needs now is to be exposed to further conflict and I am not going to make a specific order about X spending time with his grandmother.

20. I am however going to make the order that the Independent Children's Lawyer proposed that X can spend time with and communicate with the grandmother at his request.

21. If X asks to see his grandmother the father should consider that request very carefully. X lived with his grandmother for a lengthy period of time. If he asks to see her I would strongly suggest that the father considers facilitating it, because if he doesn’t, X might go behind his back. He is well able to do that given his age and the fact that he has a mobile telephone, which the father will not be able to take away from him.

22. However apart from that the situation, as is recognised in the outline of case document prepared by the Independent Children's Lawyer, is just too complex and difficult. I am not going to make an order for alternate weekend time or any other sort of time between the grandmother and X. The risk is just too high that X will come back saying things. They may or may not be true but the father will get upset by them. X would find himself caught in the middle of conflict again. I cannot have that happen for X.

23. In the 2017 report about X which is in the tender bundle he was identified as having a lot of problems and the father will very likely face some challenges in caring for him. However I hope he is able to hold it together for X and be there for him even when he is challenging and difficult and help him work through the difficulties, because somebody has to or they will end up accompanying him to the Children’s Court and he will end up in the Juvenile Justice system.

Costs

1. The Independent Children’s Lawyer has applied for costs but I intend to dismiss the application. It was essential that I had an Independent Children's Lawyer in this matter. As it turns out I could not have done without it because I now have three self-represented litigants. None of the parties are people of great wealth and I will dismiss the application for costs.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 8 April 2021