SILBERG & LIEGH - [2020] FCCA 381

FEDERAL CIRCUIT COURT OF AUSTRALIA

SILBERG & LIEGH

[2020] FCCA 381

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 10 & 4 – mother alleges children have made disclosures that the father has sexually abused younger child – father charged with having a sexual relationship with the younger child – allegations investigated by child protection authorities – younger child forensically examined – older child interviewed by police – allegation of sexual abuse not substantiated – criminal charge against father withdrawn – child protection report recommends no time between father and children until extensive parenting assessment undertaken – father alleges mother has concocted allegations or child has been sexually assaulted by person associated with the mother – father seeks immediate placement of children in his care – high conflict – mother alleges father subjected her to coercive and controlling family violence – assessment of risk – proportionate response to risks identified – questions to be asked – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61DA, 65DAA, 67Z, 91B

Cases cited:

A v A (1998) FLC 92-800

B & B (1988) FLC 91-957

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

M & M (1988) FLC 91-979

N & S and the Separate Representative (1996) FLC 92-655

Slater & Light [2013] FamCAFC 4

SS v AH [2010] FamCAFC 13

W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MR SILBERG

First Respondent:

MS LIEGH

File Number:

ADC 1205 of 2019

Judgment of:

Judge Brown

Hearing date:

12 February 2020

Date of Last Submission:

12 February 2020

Delivered at:

Adelaide

Delivered on:

25 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Marciano Lawyers

Counsel for the Respondents:

Ms Lee

Solicitors for the Respondents:

Georgina Parker Lawyers

Counsel for the Independent Children's Lawyer:

Mr Seymour

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

NOTING

that the court is awaiting a response from the Department of Child Protection as to whether they will prepare the Family Assessment Report as outlined in these reasons for judgment;

ORDERS

That the children [X] born … 2009 and [Y] born … 2014 (“the children”) spend time with the father on either the Saturday or Sunday of each week, whichever day is more convenient to the parties, between 10.00am and 4.00pm, with such time to commence on the weekend starting 29 February 2020.
That the injunction contained in order (1) of the orders made on 12 February 2020 do continue.
That the parties be restrained and an injunction is hereby granted restraining each of them and those related to them from denigrating or abusing the other or discussing the proceedings generally in the hearing or presence of the children or via any form of social media.

IT IS NOTED that publication of this judgment under the pseudonym Silberg & Liegh is approved pursuant to s.121(9)(g) of the Family Law…

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.

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Details

Case: [2020] FCCA 381
Decision Date: 25 February 2020

CaseChat Overview and Summary

In *Silberg & Liegh*, heard by Judge Brown, the dispute concerned interim arrangements for the care of two children, aged 10 and 4. The mother alleged that the father had sexually abused the younger child, leading to criminal charges against the father and an investigation by child protection authorities. While the sexual abuse allegations were not substantiated and the criminal charge was withdrawn, a child protection report recommended no contact between the father and children until a comprehensive parenting assessment was completed. The father, in turn, alleged that the mother had fabricated the allegations or that the younger child had been assaulted by someone associated with the mother, and sought immediate placement of the children in his care. The proceedings were characterised by high conflict, with the mother also alleging the father had subjected her to coercive and controlling family violence.

The court was required to determine the appropriate interim care arrangements for the children, balancing the competing allegations and the need to assess risk. Key issues included the assessment of risk to the children, the proportionate response to any identified risks, and the paramount consideration of the children's best interests in the context of significant allegations and counter-allegations of abuse and family violence.

Judge Brown reasoned that despite the unsubstantiated nature of the sexual abuse allegations and the withdrawal of criminal charges, a cautious approach was warranted given the seriousness of the claims and the child protection report's recommendation. The court acknowledged the father's desire for immediate placement but found that the risks identified necessitated a measured response. The court applied the principles of assessing risk and acting in the best interests of the children, particularly in circumstances of high conflict and allegations of family violence. The court also considered the need to protect the children from parental denigration and discussion of the proceedings.

The court ordered that the children spend supervised time with the father on one weekend day each week between 10:00 am and 4:00 pm, commencing on 29 February 2020. An existing injunction was continued, and both parties were restrained from denigrating or abusing the other, or discussing the proceedings in the presence of the children or on social media.

Orders

Orders of the court

That the children [X] born … 2009 and [Y] born … 2014 (“the children”) spend time with the father on either the Saturday or Sunday of each week, whichever day is more convenient to the parties, between 10.00am and 4.00pm, with such time to commence on the weekend starting 29 February 2020.

That the injunction contained in order (1) of the orders made on 12 February 2020 do continue.

That the parties be restrained and an injunction is hereby granted restraining each of them and those related to them from denigrating or abusing the other or discussing the proceedings generally in the hearing or presence of the children or via any form of social media.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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