Silberg and Liegh and Anor (No.2) - [2020] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

SILBERG & LIEGH & ANOR (No.2)

[2020] FCCA 816

Catchwords:
FAMILY LAW – Application for stay pending appeal – appeal in respect of interim orders – allegations of serious sexual abuse – matter investigated by police and charges withdrawn – children independently represented – intervention by child protection authorities – order made for father to spend day time periods on unsupervised basis – children distressed – application made for further interim orders – balance of consideration – no indication when appeal to be determined – further notifications made – notifications being investigated by relevant authorities – best interests of children – application for stay refused but interim applications refused pending outcome of relevant investigations.

Legislation:

Family Law Act 1975 (Cth), ss.91B; 68L

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106
Jackson & Balen [2009] FamCAFC 131
K & B [2006] FLC 93-288
Silberg & Liegh [2020] FCCA 381

Applicant:

MR SILBERG

First Respondent:

MS LIEGH

Second Respondent:

DEPARTMENT FOR CHILD PROTECTION

File Number:

ADC 1205 of 2019

Judgment of:

Judge Brown

Hearing date:

3 April 2020

Date of Last Submission:

3 April 2020

Delivered at:

Adelaide

Delivered on:

9 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Marciano Lawyers

Counsel for the First Respondent:

Ms Lee

Solicitors for the First Respondent:

Georgina Parker Lawyers

Counsel for the Second Respondent:

Mr Duncan

Solicitors for the Second Respondent:

Crown Solicitors Office

Counsel for the Independent Children’s Lawyer:

Ms Fuda

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

The application filed 5 March 2020 for a stay of the orders dated 25 February 2020 pending appeal be dismissed.
That should the mother wish for the children to undergo any form of therapeutic counselling, she provide the father’s solicitor with the names of three proposed counsellors and authorise each to discuss any proposed therapy with the father prior to its commencement, including the prospect of it directly involving the father, and such counselling shall not proceed without the father’s written consent or an order of this court.
Further consideration of the matter is adjourned to 25 June 2020 at 2.15pm.
That during the period of the adjournment, until further or other order, the orders which authorised the father to spend time with the children remain suspended.

IT IS NOTED that publication of this judgment under the pseudonym Silberg & Liegh & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1205 of 2019

MR SILBERG

Applicant

And

MS LIEGH

First Respondent

And

DEPARTMENT FOR CHILD PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction

Mr Silberg “the father” and Ms Liegh “the mother” are the parents of [X] born … 2009 and [Y] born … 2014. The parties are in dispute regarding care arrangements for the two children, in the context of serious allegations of sexual and physical abuse, which have involved the police and other government…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Silberg and Liegh and Anor (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 816
Decision Date: 9 April 2020

CaseChat Overview and Summary

In *Silberg and Liegh and Anor (No.2)*, Judge Brown of the Family Court of Australia considered an application for a stay of interim orders pending an appeal, in circumstances involving allegations of serious sexual abuse against the father. The children were independently represented, and child protection authorities had intervened. The dispute arose after an order was made for the father to spend daytime periods unsupervised with the children, which reportedly caused distress.

The court was required to determine whether to grant a stay of the interim orders pending the appeal, and also to consider further interim applications made by the mother. Central to the court's determination was the best interests of the children, particularly in light of ongoing investigations by relevant authorities into further notifications. The court also had to weigh the balance of considerations, including the uncertainty regarding the timing of the appeal determination.

Judge Brown reasoned that a stay of the existing orders was not warranted, but the interim applications were refused pending the outcome of the relevant investigations. The court acknowledged the distress experienced by the children and the ongoing child protection concerns. Consequently, the father's unsupervised time with the children was suspended pending further order. The court also made directions regarding any therapeutic counselling for the children, requiring the father's consent or a court order before it could proceed.

Orders

Orders of the court

The application filed 5 March 2020 for a stay of the orders dated 25 February 2020 pending appeal be dismissed.

That should the mother wish for the children to undergo any form of therapeutic counselling, she provide the father’s solicitor with the names of three proposed counsellors and authorise each to discuss any proposed therapy with the father prior to its commencement, including the prospect of it directly involving the father, and such counselling shall not proceed without the father’s written consent or an order of this court.

Further consideration of the matter is adjourned to 25 June 2020 at 2.15pm.

That during the period of the adjournment, until further or other order, the orders which authorised the father to spend time with the children remain suspended.

Background

Background to the litigation

Full text does not contain this section.

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.