Siddons and Siddons

[2018] FamCA 1052

FAMILY COURT OF AUSTRALIA

SIDDONS & SIDDONS [2018] FamCA 1052

FAMILY LAW – CHILDREN – where the final hearing is adjourned (part-heard) for two months – where findings can be made that the father’s time with the children does not need to be supervised – limited interim orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Siddons

RESPONDENT: Ms Siddons

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9748 of 2014

DATE DELIVERED: 11 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28-30 November, 3 & 6 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Conlan

SOLICITOR FOR THE APPLICANT: Leyton-Palma Lawyers

COUNSEL FOR THE RESPONDENT: Ms Byrnes

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. Paragraph (2) and (3) of the orders made on 6 June 2018 are discharged.

2. UNTIL FURTHER ORDER, the children X (born … 2009), Y (born … 2011), and Z (born … 2012) spend time with the father in accordance with these orders.

3. Until 4 February 2019 or otherwise until further order, the father spend time with the children as follows:

   ·on Saturday 8 December 2018 from 9:00 am to 7:00 pm;

   ·on Saturday 15 December 2018 from 9:00 am to 7:00 pm;

   ·on Sunday 16 December 2018 from 9:00 am to 7:00 pm;

   ·on Saturday 22 December 2018 from 9:00 am to 7:00 pm;

   ·on Tuesday 25 December 2018 (“Christmas Day”) from 3:00 pm to 8:00 pm;

   ·on Saturday 29 December 2018 from 9:00 am to 7:00 pm;

   ·on Saturday 5 January 2019 from 9:00 am to 7:00 pm;

   ·on Saturday 12 January 2019 from 9:00 am to 7:00 pm;

   ·on Tuesday 15 January 2019 from 9:00 am to 7:00 pm;

   ·on Saturday 19 January 2019 from 9:00 am to 7:00 pm;

   ·on Saturday 26 January 2019 from 9:00 am to 7:00 pm; and

   ·on Tuesday 29 January 2019 (subject to it not being a school day) from 9:00 am to 7:00 pm. 

4. If Tuesday 29 January 2019 is a school day, the father shall not have contact that day.

5. The handover of the children shall take place at the Suburb B Centre on all occasions except Christmas Day, where handover be at the Suburb C pickup and the return shall be to the Suburb D Park.

6. All outstanding applications for final orders are adjourned part-heard to 10:00 am on 4 February 2019.

7. Each of the mother and the father file any further affidavit upon which they intend to rely as to what has occurred subsequent to these orders by no later than 4:00 pm on 24 January 2019 and each party provide a copy of such affidavit to each other and to Ms E.

8. As soon as practicable after 24 January 2019, Ms E undertake an updated family report to take into account the matters that have occurred since this day and she be provided with a copy of the reasons for these orders by the Independent Children’s Lawyer.

9. The parents equally pay the costs of Ms E’s attendance and report.

10. That pursuant to s. 65DA(2) and s. 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this order.

11. The reasons for these orders be published as soon as practicable.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Siddons & Siddons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9748  of 2014

Mr Siddons

Applicant

And

Ms Siddons

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The contested parenting dispute between Mr Siddons (“the father”) and Ms Siddons (“the mother”) has had to be adjourned until 4 February 2019 as a result of my absence from the Melbourne registry over the ensuing weeks.

2. The three children of the parties’ relationship and marriage are X (aged nine), Y (aged seven) and Z (aged six). The three children live with their mother. Their time with their father has been disrupted and disjointed. The trial has proceeded over five days and is almost at an end, save for hearing evidence from the maternal grandparents and then a variety of expert witnesses.

3. The immediate problem is what orders should be made pending the resumption of the hearing. The Court took the lead indicating that having heard the substantive part of the parties’ evidence and more particularly, the evidence relating to what (if any) risks the children face, relevantly, in the father’s care, interim orders should be made pending final determination. The provisions of s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) apply here and ultimately, the Court will have to give weight to the various aspects of the parties’ evidence.

4. As indicated, the father’s time has been disrupted, predominantly as a result of allegations that have been made whilst the children have been in his care. For the purposes of the proposed interim orders, there are two allegations of sexual impropriety against the father asserted by the mother, both of which come from the words of the children themselves.

5. The first relates to an incident in June 2018 when the children were in his care. It is alleged that the father exposed himself whilst he was urinating. The second arises in July 2018 from X’s attendance at a birthday party of the son of the father’s partner.

6. In respect of the latter, X was interviewed by a senior constable of police. The interview occurred on 9 July 2018, so not long after the birthday party had occurred. X told the police officer that she was watching a movie sitting on her father’s bed and she was alone whilst the party was going on in the rest of the house.  She described the father as coming in and tickling her on the vagina and bottom and she asked him to stop, whereupon he got off the bed and went out. She said she continued to watch the movie for more than 20 minutes.  She continued to participate in the birthday party celebration at other times.

7. When pressed by the police officer as to where this incident occurred, X described being on her father’s side of the bed. She said he climbed across and tickled her and then sat up and walked out of the room. She described wearing clothing and that the tickling occurred on her clothing.

8. After some hours, X went home with her mother. When asked by the police officer to whom she had made a complaint about what her father done, X described telling her grandmother. When pressed who else she had told, she said that she subsequently told a psychologist who will be giving evidence in these proceedings and her mother. It is unclear to me from X’s perspective when she told her mother but it does not seem to be immediately after the birthday party.

9. The police officer asked X how she felt and she said she felt a bit scared that her father would “do it again”. She then told the detective that she had been to see her father on a number of occasions since. No impropriety is alleged thereafter.

10. The father subjected himself to careful and close scrutiny in cross-examination.  He denied what was asserted by X. He said X was “off-colour” and she was watching “Netflix” in his bedroom. He denied tickling her, although he conceded he had done so when she was younger.  He was unable to explain why X would have adopted the position she had including the fact that she had consistently told the story to the police officer.

11. The second incident relating to the father concerned what the children described as them observing him urinate and making a remark about them watching him. He denied that occurred at all and in particular, denied the response that they say he gave.  Again, he could not give any explanation as to why they might have said what they did.

12. For the purposes of these proceedings, the father was interviewed and assessed by Dr F who found him to be of “low risk”. It is acknowledged that that does not mean no risk.

13. It is unnecessary for me to deal with other issues that will ultimately be determined when the trial is fully completed but insofar as the focus in respect of the two issues mentioned above are concerned, all of the evidence points to the fact that whilst the children are saying what they did say, any suggestion otherwise of impropriety cannot be found. The father has subjected himself to cross-examination, as has his partner with whom he has been living since April 2018. It is conceivable that both the tickling and the observation of the father were entirely innocuous, save for the fact that in both cases, the father denied any such incident occurred. However, there is no plausible explanation for why the children would say these things at this stage other that there is a disjointed history and allegations of a more strident nature against the paternal grandparents, all of which are denied.

14. Combined with the assessment of Dr F, the support of the father’s partner and the fact that he has been prepared to subject himself to cross-examination, I am satisfied that there is no unacceptable risk here of harm such as to require on-going supervision. There has been a continuation of the father’s contact from time to time and nothing that I have been able to ascertain would suggest that the father has acted improperly at other times. In circumstances where the party of the son of his partner occurred and there were many people about, it does not make much sense to think that the father would take a risk knowing that there had been previous allegations about his parenting. It is important also to observe that whilst there have been other allegations in relation to other members of his family, nothing I have been able to find indicates he has those tendencies.

15. The father has always maintained that he has a desire to be involved in the children’s lives and I see no reason why that should not continue now.

16. The trial is at a stage where the focus will turn to why the children are saying the things reported. The absence of that evidence does not mean I cannot assess the credibility of the father and his partner. A finding here may come under further scrutiny after hearing the experts. Much of that expert evidence will focus on the mother’s mental health but that seems unlikely to affect the credibility of the father. The question remains unanswered as to why the children have expressed things as they have and shown no reticence to two experts about continuing their relationship with the father.

17. The father sought overnight time on an interim basis. Having regard to the absence of evidence about how the children will handle that, orders cannot be made. It is important that the father spend quality (rather than quantity) time with the children.

18. The Independent Children’s Lawyer largely supports the father.

19. The mother sought orders that there be a continuation of supervision but her own substantive position is that time with the father should go to unsupervised shortly. Her primary requirement was that the children have someone of an expert and objective social science background to whom the children can relate what she says is happening to them. In my view, that idea needs expansion, but it would not be more than a follow up to see how well time is progressing. The mother maintains she will report further statements to the Department of Health and Human Services. That will need to be carefully handled to ensure that she does not misconstrue what they say whilst reality testing their propositions and does not fan the fire of their belief that they have been abused without a proper basis.

20. I find it is best for the children to commence an extended relationship period now. That will give the Court and the experts an opportunity to see what is occurring.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 December 2018.

Acting Associate:

Date: 11 December 2018