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– appeal in respect of interim orders – allegations of serious sexual abuse – matter investigated by police and charges withdrawn – children independently represented – intervention by child protection authorities – order made for father to spend day time periods on unsupervised basis –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

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

2. 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. 

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

4. 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

1. 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 agencies.

2. On 25 February 2020, following a contested interim hearing, I determined that the children should spend time with their father on one day, per week, on a weekend, between 10:00am and 4:00pm.  I was not persuaded that this time should be subject to any form of supervision. 

3. The first occasion on which the time was scheduled to occur was 1 March 2020.  It is common ground that the children were unable to separate from their mother due to their level of distress.  In these circumstances, unspecified police determined that it was not appropriate for the children to spend the ordered time with their father.

4. I was well aware of the controversy which would surround this decision, particularly from the perspective of the mother.  In this context, I prepared a written judgment,[1] in which I attempted to outline the background to this complex case and the legal principles, which are applicable to its management and ultimate resolution. 

   [1]  See Silberg & Liegh [2020] FCCA 381

5. It will be clear from those reasons that this case has a significant distance to run and many pieces of evidence remain to be gathered and considered by the court.  It is also apparent that the respective positions of the parties remain polarised in the extreme. 

6. As before, I am not in a position, at this juncture, to resolve, in any definitive way, the evidentiary issues arising in the case.  One thing, however, is abundantly clear.  [X] and [Y] are not responsible for the crisis which has enveloped them – they are children.  As a consequence, the focus of the court must always be on their best interests. 

7. As indicated in the earlier judgment, in the present matter, the statutory criteria relating to the children’s best interests present two main limbs for the court’s assessment – firstly, the need to protect the children from coming to physical and/or psychological harm from being subjected to abuse; and secondly the benefits they are likely to derive from having a meaningful level of relationship with their father; with priority being given to the former consideration. 

8. The case turns on allegations of sexual and physical abuse.  These arose in January of 2019 and have led to the father having no time whatsoever with the children for a period of around fifteen months, whilst the allegations were investigated by the relevant authorities.  It is a significant period of time.

9. Ultimately, criminal charges against the father were discontinued and evidence arose which indicated the possibility of another person having abused the children.  It was in this context that I made the order of 25 February 2020 as, axiomatically, the children were having no relationship whatsoever with their father, let alone a meaningful one, in the complete absence of any contact between them. 

10. It was the mother who first raised the allegations involving the father having abused the children.  She claimed the children had disclosed to her that they were frightened of their father because he had yelled and sworn at them in an angry manner.  More significantly, she disclosed that the children had both indicated that the father had sexually assaulted [Y] by digitally raping her and performing cunnilingus.

11. These alleged disclosures led to a complaint being made to the police and Mr Silberg being charged with maintaining a sexual relationship with [Y].  He was subsequently interviewed by police but exercised his right to silence.  He has maintained his innocence throughout these proceedings.

12. It is his case that he loves both children and would never do anything to harm them.  He alleges that the mother has either misconstrued some innocuous statements of the children or more likely has maliciously concocted the allegations and has co-opted the children to repeat them, which amounts to an incident of significant emotional abuse justifying a change in primary care arrangements.

13. Given the seriousness of these various allegations, the parents are not the only parties to the proceedings.  It has been ordered that [X] and [Y] should be represented independently of their parents.  Their representative is Robert Seymour, an experienced family lawyer employed by the Legal Services Commission of South Australia.

14. More recently again, the Chief Executive of the Department for Child Protection[2] has responded to an invitation, proffered by the court pursuant to the provisions of section 91B of the Family Law Act1975, to intervene in these proceedings.  DCP became a party on 12 March 2020 – that is following the making of the orders which envisaged the father spending unsupervised time with the children concerned. 

    [2]  Hereinafter referred to as “DCP”

15. It is common ground between all four of the parties that the time ordered on 25 February 2020 has not occurred.  In these circumstances, each of the parties has a different proposal as to what should occur next, so far as the management of the matter is concerned. 

16. In addition, on 5 March 2020, the mother filed a Notice of Appeal in respect of the orders made on 25 February 2020.  As a consequence of her appeal, the mother seeks a stay of these orders pending the outcome of the appeal.  The father and the independent children’s lawyer oppose the stay.  The Chief Executive Officer of DCP neither supports nor opposes the stay. 

17. To a certain extent, the issue of the stay is somewhat academic as it has been overtaken by other events, which have resulted in each of the parties accepting that it is no longer practicable for the 25 February 2020 orders to be implemented, although they disagree fundamentally as to what should occur in the meantime. 

18. In these circumstances, concurrently with the stay application proceedings, it will be necessary for the court to consider what, if any, further interim parenting orders should be made to deal with the new evidentiary situation created by the fresh circumstances which have arisen since 25 February 2020. 

Legal principles applicable to the granting of a stay

1. The legal principles applicable to determining a stay application are not controversial.  In Jackson & Balen[3] the Full Court summarised the relevant principles applicable to the grant of a stay, pending appeal, in the following terms:

   [3]  See Jackson & Balen [2009] FamCAFC 131 at [28]

   ·“the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the application must be bona fides;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.”

2. Additional considerations arise in respect of appeals involving parenting orders, given the paramountcy of a child’s best interests.  In Aldridge & Keaton (stay appeal)[4], the Full Court added the following considerations:

   ·“the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time;

   ·the best interests of the child, the subject of the proceedings are a significant consideration.” 

   [4]  Aldridge & Keaton [2009] FamCAFC 106 at [18]

3. In this context, I  also bear in mind the comments of the Full Court in K & B[5] as follows:

   “The granting or refusal of a stay involves an exercise of discretion by a trial Judge.  Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.  The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.”

   [5]  See K & B [2006] FLC 93-288 at 80-942 [32]

Summary of events until 25 February 2020

1. I have outlined the background to the parties’ competing applications in the earlier reasons for judgment.  However, in order to put the current applications in context, it is necessary to briefly summarise the salient factors which informed that judgment.  It is also necessary to outline the functions of the various government agencies, which have played a major part in the family during much of 2019 and afterwards.

2. Firstly, South Australian Police (SAPOL), are responsible for investigating complaints relating to the commission of crimes in the state of South Australia.  As a consequence of the complaints of the mother, they investigated her allegations that the father had sexually abused [Y]. 

3. Secondly, Child Protection Services (CPS).  Its remit is to provide specialist assessment and treatment services to children where there is a suspicion of child abuse, psychological maltreatment and/or neglect.  It is an agency administered by the South Australian Government, but is, as I understand matters, independent of DCP. 

4. CPS does however accept referrals from DCP and SAPOL for the forensic medical and psycho social assessment of children, including those under the age of seven, who have been alleged to have been subject to physical abuse, sexual abuse, neglect or psychological maltreatment. 

5. In addition, CPS is able to undertake assessments of the parenting capacity of parents in families where concerns have been raised about the abuse and/or psychological maltreatment of children.  As will become apparent in due course, CPS wishes to conduct such an assessment in respect of both the father and the mother.

6. The Chief Executive Officer of DCP is represented, in these proceedings, by a member of the Crown Solicitor’s Office, Mr Duncan.  Mr Duncan is at pains to point out to me that he does not act for SAPOL or CPS, although the three organisations are each responsible to the Government of South Australia and have the capacity to hold inter-agency meetings in respect of any family in which they are each involved.

7. An officer from SAPOL interviewed [X] in February of 2019 and again in March of 2019.  It being the mother’s allegation that he had been present, in the same room, when the father had sexually abused [Y] and was so a material witness to the abuse.  In addition, being older than [Y], he is more cognitively mature and so better equipped to be interviewed effectively in a formal setting.

8. Concurrently with this process, [Y] was interviewed by Ms D, a clinical psychologist employed by CPS on three occasions, which took place on 26 February, 7 March and 21 June 2019.  As a consequence of these interviews, Ms D compiled a forensic psycho-social assessment report, which is dated 3 October 2019.  Ms D has professional expertise in interviewing children of tender years in respect of allegations they have been subject to abuse.

9. As a consequence of the charge against him, the father was subject to bail, a condition of which was that he could not approach either the mother or the children concerned.  This led him to being unable to interact with the children for much of 2019.  He was not interviewed by Ms D for the purposes of the compilation of her report. 

10. The result of the combined SAPOL/CPS investigation into the mother’s complaint was that SAPOL did not believe they had sufficient evidence to sustain any prosecution against the father.  As a consequence, the charge against Mr Silberg was withdrawn and his bail lapsed. 

11. However, it is apparent from Ms D’s report that, although she was not able to indicate that [Y] had made any comprehensible disclosure of sexual abuse to her and [X]’s presentation during interview was incongruent with a child, who had been witness to a significant incident of abuse, she (Ms D) remained concerned about the safety of the children concerned, particularly in the context of any re-engagement with their father.

12. These concerns related to Ms Liegh’s disclosures to her (Ms D) that Mr Silberg was a coercive and controlling person, during the parties’ relationship and more recently had been verbally and physically abusive towards the children causing them to be frightened of their father.  In this context, Ms D recommended that the children not have any unsupervised contact with their father until what was termed a comprehensive family assessment was undertaken.

13. At the stage of her report (early October 2019) it was not envisaged that such a report would necessarily be provided by CPS.  This was an issue during the course of the earlier proceedings before the court.  Ultimately, the parties agreed to obtain their own private report.

14. As a part of their investigation, SAPOL seized items of the children’s clothing and subjected them to forensic examination.  At some time in October of 2019, a forensic scientist identified traces of semen on a pair of [Y]’s knickers. 

15. DNA was able to be extracted from this sample, which, when compared with the father’s DNA profile resulted in him being excluded as its source.  However, another person associated with the mother was not so excluded. 

16. The statutory responsibility of DCP is to investigate notifications of abuse received by it in respect of children and determine whether such children require the protection of the Department pursuant to the provisions of the Children & Young People (Safety) Act 2017 (SA).  It would seem to be the case that there are currently a number of such notifications being actively investigated by DCP in respect of [X] and [Y]. 

17. These include issues arising from the detection of semen on [Y]’s underwear; notification(s) arising in respect of alleged emotional abuse of the children by their mother, particularly that she has fabricated allegations of sexual abuse and attempted to undermine the children’s relationship with their father; and finally, notifications relating to the father’s alleged abuse of the children and his emotional insensitivity at an aborted handover of the children on 1 March 2020.

18. SAPOL and CPS have been enlisted to play a part in different aspects of these various notifications.  However, at the present time, none of these notifications have been definitively resolved, so far as CPS is concerned.  It would also seem to be the case that SAPOL continue to investigate matters arising from the forensic examination of [Y]’s underwear. 

Events since the orders of 25 February 2020

1. The orders of 25 February 2020 envisaged the children spending time with their father, from 1 March 2020 onwards.  In addition, it was also ordered that Ms J, an experienced psychologist prepare a family assessment, at the parties’ equal expense. 

2. It was hoped that Ms J would be able to interview the children and observe them with each of their parents in late May.  From the father’s perspective, Ms J was likely to be more qualified and potentially less liable to confirmation bias than Ms D, in the preparation of the family assessment recommended to be undertaken by CPS. 

3. These orders were made prior to the implementation of the social restrictions implemented by the government in response to the Covid19 pandemic.  At this stage of writing, it seems unlikely that Ms J will be able to prepare the report in question, in the timeframe originally envisaged.

4. It is common ground between all the parties to the proceedings that the time envisaged in these orders did not occur, due to the emotional distress exhibited by the children, at the prospect of spending time with their father.  This distress has led to more notifications being made to DCP in respect of [X] and [Y]. 

5. Against this background, on 5 March 2020, DCP filed an application, in which they sought to amend the orders of 25 February 2020 so that the father only spend time with the children in accordance with what was characterised as a gradual contact schedule.  The application was supported by an affidavit of Mr H, who is a senior child protection officer, employed by the department.

1. Mr H deposed that DCP had received a notification, via the child abuse report line, that [X] and [Y] had been highly distressed, on 1 March 2020, at Police Station I, which was the agreed venue for the exchange of the children.  When Mr Silberg had apparently attempted to pick up [Y], she had yelled “no” and kicked him.  Both children were described as being “very upset, crying and physically shaking”. 

2. In these circumstances, Mr H deposed as follows:

   “Due to the distress of both children, and out of concern for the children’s welfare, in accordance with the relevant child protection legislation, Police advised Mr Silberg that he would not be permitted to take the children that day.  Police instructed Mr Silberg to leave the premises to prevent a breach of the peace.  Mr Silberg complied.  Ms Liegh departed shortly thereafter with the children in her care.”[6]

   [6]  See affidavit of Mr H filed 5 March 2020 at [5.6]

3. In addition, other notifications have been received by DCP, alleging that since the children have learnt about the prospect of them spending any time, with their father, each child has demonstrated symptoms of emotional distress, including complaining of stomach aches, crying, experiencing nightmares and feeling dizzy. 

4. It is in this context that Mr H has recommended the gradual contact schedule, which will involve oversight from the Department.  The schedule is predicated on the opinion of Ms D that the children are “displaying trauma-related behaviours from abuse that they believe has occurred.”

5. The schedule does not envisage any direct contact between the father and the children until DCP workers have met with the children and each of their parents, and it is assessed by them that it is in the children’s best interests for contact to occur. 

6. If this condition is satisfied, presumably to the satisfaction of DCP, the father would spend one hour of supervised time with the children, which if successful, would be extended to two hours.  It was envisaged that this process would take place over a period of approximately ten weeks. 

7. Against this perplexing and difficult background, on 12 March 2020, I made a further interim order suspending the 25 February order regarding the children spending time with their father.  At that juncture, there appeared no obvious mechanisms available to manage the children’s distress at handover. 

8. In my earlier reasons for judgment, I indicated to the parties concerned, that the task set for the court, in adjudicating the competing interim applications before it, was one fundamentally focussed on the assessment of risk.  In this context, I listed the various components and permutations of the risks, arising in this case, in the following terms: 

   ·the risk that Mr Silberg has physically abused [X] and exposed the children to family violence;

   ·the risk that [Y] has been sexually abused by Mr Silberg and [X] has been exposed to that abuse;

   ·the risk that [Y] has been sexually abused by some other person associated with her mother;

   ·the risk that Ms Liegh has maliciously concocted evidence of sexual abuse and prompted the children to make false disclosures to police;

   ·the risk that the children will either lose or have unduly confined, for no proper reason, an otherwise worthwhile and loving relationship with their father;

   ·the risk that Ms Liegh genuinely but erroneously believes Mr Silberg has sexually abused [Y], in which circumstances, if the child spends time with her father, it will render Ms Liegh anxious and insecure and so compromise her psychological equilibrium with implications for her capacity to parent the children adequately;

   ·the risk that Ms Liegh is intent on destroying the children’s relationship with their father because of her longstanding malice for Mr Silberg or for some other improper purpose, and because of this is willing to alienate and manipulate the children against their father, which has the potential to cause them great and lasting psychological harm.

The mother’s position

1. It remains the mother’s position that the children have been exposed to some form of adult sexual behaviour, which she asserts emanates from the father.  Underpinning her position is the assertion that [Y] has disclosed being subjected to some form of violent or aberrant behaviour, at the hand of her father, to both her mother and Ms D but is unable to articulate these disclosures better because of her age.

2. It is further her case that [Y]’s disclosures are supported by what [X] has said to the police over a number of interviews.  Although again, it is not possible to glean a clear narrative of what the child has reported given his age and lack of mature understanding of sexual matters.

3. Essentially, it the mother’s position that something has happened to the children, whilst in their father’s care, and the children have attempted as best they can to provide a narrative to professional persons of being abused by their father.  From her perspective, this narrative is consistent with her own experience of the father as a violent and coercive person during their marriage.

4. As previously indicated, SAPOL has withdrawn the charges against Mr Silberg, arising from Ms Liegh’s complaint to them in respect of [Y].  The police officer, who was charged with investigating this complaint, was Detective E.  It was she who interviewed [X] in February and March of 2019. 

5. Ms Liegh has deposed that Detective E re-interviewed [X] on 28 February 2020, which was the day prior to that scheduled for the children to resume spending time with their father.  It is Ms Liegh’s evidence that following this interview, [X] became distressed, as did [Y]. 

6. Ms Liegh has not disclosed what the purpose of Detective E re-interviewing [X] was.  I have not been provided with any transcript of the interview.  In addition, I do not know if Detective E is or was investigating any other of the notifications received in respect of the children in this particular interview. 

7. The mother is critical of the father’s behaviour at the failed handover of 1 March 2020.  She categorises him as behaving in an aggressive and hostile manner towards her and of being insensitive to the children’s obvious distress at the handover.  By necessary implication, she refutes any suggestion that she was an active agent in the creation of the children’s distress. 

8. In these circumstances, it is the mother’s position that there should be no further attempts at reintroducing the children to their father until such time as there has been a comprehensive family assessment undertaken by CPS. 

9. In addition, Ms Liegh wishes to provide the forensic report, which identifies the person associated with her as the source of the semen on [Y]’s underwear, to another forensic expert.  Presumably, this evidence is sought to answer any assertion, by the father, that there is some risk of the children being subject to sexual abuse, whilst in their mother’s care. 

10. I am not sure that I have any jurisdiction to authorise such a report.  The forensic material in question was obtained by SAPOL.  It was provided to Mr Silberg’s solicitor in relation to the criminal prosecution against him, which has now lapsed.  Mr Silberg asserts that the mother has not been completely frank in respect of issues relating to her knowledge of the report.

11. The report was not prepared in conjunction with any proceedings instituted before this court, although it obviously identifies [Y] and its subject matter is potentially relevant to protection issues relating to her.  However, in my view, it would be premature for me to make such an order prior to the conclusion of any police investigations into the various notifications, which have been made in this case. 

12. The mother also wishes orders to be made which would enable the children to undertake a process of therapeutic counselling to deal with their distress.  The father is opposed to any such intervention. 

The father’s position

1. It is the father’s position that further efforts need to be made to facilitate the resumption of his relationship with the children.  In this context, he points to the fact that he has not directly interacted with either of the children for a period well in excess of a year.  In these circumstances, he contends that it is improbable that he can be directly the source of the children’s emotional distress. 

2. Rather, it is the father’s assertion that the children’s distress is likely to emanate from the mother and to have been exacerbated by the involvement of SAPOL and CPS, which have mismanaged the investigations required of them. 

3. Essentially, he contends that, if [X] and [Y] are displaying trauma related behaviours, to utilise the expression adopted by Mr H, then any such abuse happened, whilst they were in the care of their mother, given the obvious fact that he has not seen them since late January 2019 during an overnight stay, which was unexceptional from his point of view and which was one of many such visits occurring following the parties’ reasonably lengthy separation. 

4. The father is critical that both SAPOL and CPS have been tardy in respect of their investigations relating to the person associated with the mother, identified in the SAPOL forensic report.  More significantly, he categorises Ms D’s report as being unbalanced and prejudiced against him, given that his views were not canvassed in it and Ms D accepted uncritically Ms Liegh’s descriptions of his behaviour, which he asserts are untrue and not consistent with his previous level of involvement with the children. 

5. In these circumstances, the father is opposed to the children undergoing any form of therapeutic counselling and/or treatment.  He believes that such counselling may have the consequence of entrenching, in the children’s minds, the false belief that he is a danger to them because he has sexually or otherwise abused them – a belief which can only have originated with the mother and which has been aided by CPS.  Essentially, the father has no trust whatsoever in either the mother or CPS. 

6. The father denies that he did anything untoward or insensitive during the failed handover of 1 March 2020.  It is his evidence that he attended the handover aware of the possibility of difficulties arising and had strategies in place to deal with them.  It is his position that it was the mother, who was emotionally dysregulated, rather than him and it was her behaviour that precipitated the children’s emotional distress.

7. This is potentially an extremely significant evidentiary issue.  As I outlined, in the earlier reasons for judgment, I am not able to resolve this factual conflict, in the context of a truncated interim hearing.  However, that the children were distressed is beyond dispute.

8. In these circumstances, the father proposes some form of emotional air lock being created for the children, in order to facilitate the resumption of their time, with him, in the absence of both the mother and workers from DCP, in whom he has no confidence.

9. In this regard, he proposes that the children initially be exchanged between the parties by a family consultant at the premises of the court, in the absence of the mother.  Although he does not accept that it is necessary, if the court is of the view that some form of supervision is called for in respect of the resumption of his time with the children, he proposes that such supervision be provided by his aunt, Ms K. 

10. Ms K is a retired teacher.  During her career, she has taught both primary and secondary aged children and holds a PhD.  More significantly, she has deposed that, following the parents’ separation, the father lived with her for three months and thereafter rented a unit near to her home.  In this context, Ms K deposes as follows:

    “… During this time the children [X], born … 2009 and [Y] born … 2015 would frequent my home and the school grounds when they were spending time with their father.  [X] and his father would often play games on the oval such as cricket and [Y] and I would spend time together visiting neighbours, playing memory games and cards and other similar child related activities.  Therefore the children are very familiar with me, my home and the surrounding area.”[7]

    [7]  See affidavit of Ms K filed 30 March 2020 at [6]

11. It is the father’s contention that it would be hard to conceive a more suitable and qualified supervisor than his aunt.  It is his position that she would be able to respond appropriately to any emotional distress exhibited by the children and her presence during any time would provide a complete protection against the possibility of the children being exposed to any form of abuse emanating from their father. 

12. The mother does not agree.  It is her position that the children do not have a strong relationship with Ms K, who has also been disrespectful and sarcastic in her previous interactions with her.  The mother also categorises Ms K as being of advanced years and so impliedly unable physically to discharge the responsibilities of supervision in such difficult circumstances. 

The independent children’s lawyer’s position

1. The independent children’s lawyer supported the orders made by me on 25 February 2020.  It was his position, at that stage, given the revelations arising from the SAPOL forensic evidence and the fact that the police charges had been discontinued against Mr Silberg on the basis that there was no definitive evidence that either child had been subject to sexual abuse emanating from their father, that there should be some resumption of limited unsupervised time.

2. In the light of the difficulties, which have arisen since the orders were made, the independent children’s lawyer no longer contends that the continuance of the 25 February 2020 order is in the children’s best interests.  However, he remains concerned at the lack of any interaction between [X], [Y] and their father, given that, notwithstanding an extensive investigation by SAPOL and CPS, no definitive findings of child abuse have been made. 

3. In these circumstances, the independent children’s lawyer submits that there should be a melding of the approach advocated by Mr H, with that put forward by the father, which could include Ms K as well as workers from the Department. 

4. With this in mind, on 26 March 2020, I directed that the legal representatives of each of the parties, as well as Mr H, attend an informal conference to see if there was any scope for a modified gradual increase in time plan to be agreed.  From my perspective, given the practical issues such a plan would almost certainly throw up, it was imperative that the parties themselves discuss how such an intervention could work. 

5. The conference took place but nothing could be agreed.  In these circumstances, which include the implacable opposition of the mother to Ms K, I am not in a position to create such a synthesis of the parties’ competing positions, particularly in light of the pandemic emergency, which affects the capacity of a number of services to interact directly with children. 

6. Accordingly, whilst I accept the independent children’s lawyer’s position that he wishes the children to have some form of supervised time, with their father, he is not currently in a position to provide a concrete plan as to how this will occur.

7. The independent children’s lawyer has also recently confirmed with Ms D; in this context, Mr Seymour has deposed as follows:

   “On the 19^th March 2020 the writer contacted CPS and spoke with Ms D.  Ms D informed the writer that CPS were carrying out a further assessment in relation to concerns they had with both parents due to the recent developments that had come to light following the release of the most recent forensic report which excluded the father from being a contributor to [Y]’s underwear.  Furthermore that CPS wish to conduct a forensic interview but at this stage do not believe that it is in the child [Y]’s best interests to conduct such an assessment.

   I have also been further informed by Ms D that the investigations being conducted by both CPS and SAPOL may require a further 10 weeks to be completed.”[8]

   [8]  See affidavit of Robert Ian Seymour filed 20 March 2020 at [8] – [9]

Conclusions

1. In my view, the most significant factor arising in the case is the distress currently being exhibited by the children.  That they are distressed is incontrovertible.  Axiomatically it is not in their interest to be subjected to situations in which their levels of distress are likely to be exacerbated or perhaps become even more extreme. 

2. More problematic to identify are the factors leading to the children’s distress so that appropriate steps can be taken to alleviate it.  It is a significant factor that the children have not interacted with their father for over a year and, at least according to Ms Liegh’s account to Ms D, their levels of anxiety had decreased over this period. 

3. In these circumstances, it is difficult to attribute the children’s levels of distress to any factor recently emanating from their father given the interruption of the relationship between father and children.  In this context, it seems to be the view of CPS that the children are reacting to accounts of abuse that they believe have occurred to them. 

4. Accordingly, it is not beyond the bounds of possibility that it is the mother’s actions, either consciously or unconsciously, which are precipitating the displays of anxiety shown by the children at the prospect of spending time with their father.  For his part, Mr Silberg is of the view that the mother is emotionally manipulating the children out of long held malice for him.

5. In all these circumstances, I have grave reservations that, notwithstanding the obvious good intentions of Ms K, her involvement with this conflict-ridden and polarised family, will not reduce the potential for the children to experience acute emotional distress in the lead up to any handover.  It seems improbable that Ms Liegh would be supportive of such a process. 

6. Counsel for the independent children’s lawyer has evinced some concern that Mr Seymour is not being fully appraised in respect of the progress of all the on-going investigations involved in this highly complex matter. As a consequence, he is concerned that he is not in the best position to make the submissions required of him pursuant to section 68L of the Family Law Act.

7. These investigations involve three government agencies, which are, to some extent, independent of one another, although one would hope they would have some over-arching degree of command and direction.  There may well be very compelling public policy reasons which necessitate the various agencies concerned being reticent in respect of revealing their views in respect of as yet incomplete investigations.

8. One aspect of CPS’ investigations is on the respective parenting capacity of both the father and the mother.  In the absence of a report from Ms J, such assessments are likely to be crucial to how the matter is progressed in the short to medium term.  The essential thrust of each party’s case is that the other is a poor and compromised parent, who should be disqualified from playing a significant role in the children’s care.

9. In all these circumstances, the fact that the various Departmental inquiries are anticipated to take around ten weeks to complete militates in favour of this court not taking any significant steps until these investigations are complete, particularly given the high degree of potential that any significant intervention will exacerbate rather than diminish the children’s distress, no matter what the ultimate aetiology of that distress proves to be.

10. From my perspective, this is the most important consideration in the case.  Against this background of highly conflicted evidence and incomplete evidence, I should endeavour, in whatever orders I make, to do the least harm to the children, being aware that no outcome, at this stage, is likely to be without issues.

1. I do not resile from my earlier view, which is shared by the independent children’s lawyer that it is not optimal for the children’s relationship with their father to remain in abeyance given the currently inconclusive nature of the CPS investigation.  However, to re-introduce them to their father seems destined, at this stage, to heighten rather than reduce their distress.

2. The children have not seen their father for over a year.  What has caused them to be so fearful of him remains unclear.  Whilst that issue is investigated, in my view, it would not be in their best interests for the court to attempt a hazardous process of reintroduction, no matter how well-intentioned. 

3. In my assessment, it is preferable to await the outcome of the various investigations which remain in chain.  I am well aware that this will result in the children, perhaps, having no direct contact with their father for up to eighteen months, which, on any view, must be considered a very significant period of time.

4. As with all issues concerning risk in children’s cases, one risk must be balanced against another and the least bad option selected.  In my view, the least bad option, at present, for [X] and [Y], is to keep the present arrangements in place for a further period of ten weeks, whilst SAPOL; DCP and CPS conclude their investigations.

5. I have not been advised as to the likely listing of Ms Liegh’s appeal.  The various grounds of appeal complain of the weight I gave to aspects of the evidence in the context of an interim parenting case, particularly in regards to the forensic evidence.  The mother also complains that she was not able to examine documents relating to the police prosecution of the father.  In this context, I note that her solicitor provided the CPS report and the transcript of interviews between police and [X] and Ms Liegh was aware that forensic evidence suggested another donor of the semen on [Y]’s underwear.

6. In my view, the fundamental task I have to discharge in determining whether or not to grant a stay, is a consideration of the balance of convenience between the parties concerned but with my main focus on the best interests of the children concerned.

7. In this context, I do not think it would be in [X] and [Y]’s best interest to grant the stay given the uncertainty as to when it can be definitively finalised.  Rather, in my view, it would be better that the matter be able to return to court once the various notifications have been investigated, so that a court of appropriate jurisdiction can reappraise, against that new background, what are the optimal arrangements for the care of [X] and [Y], particularly whether they should re-commence spending time with their father.

8. Such a course will not render any appeal nugatory.  It will also safeguard the status quo in respect of the children until that new material is to hand.  For those reasons, the application for a stay of orders pending appeal is declined.  The proceedings are adjourned for approximately ten weeks until 25 June 2020 at 2.15pm and during that period, until further or other order, the orders which authorised the father to spend time with the children will remain suspended.

9. At this juncture, whilst these various notifications play out and every aspect of the children’s involvement with various professionals remains problematic and controversial, any therapeutic counselling for them is fraught with difficulty.  However, on balance, it would appear to be in the children’s best interests to have some form of appropriate counselling, if it is directed towards alleviating their emotional distress.

10. The difficulty is that if such counselling originates with one party alone and the other party is excluded from it, it may not achieve its primary objective.  In these circumstances, I will order that, if the mother wishes 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.

11. Once the father has been involved in this process of selection, he will be better placed to consider whether he is open to it.  If he elects to veto the mother will be able, if she wishes, to bring any necessary application to the court and the father, if he wishes, can oppose it and the issue determined by the court against a proper evidentiary background, rather than in vacuo. 

12. Clearly, this matter is highly complex and, as such, is more properly accommodated in the Family Court.  However, in my view, whilst there remain outstanding issues, at the interim stage, and this court is seized of them, it should remain in this court on a provisional basis.

13. 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 six (106) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 9 April 2020