Schiller & Waterman [2025] FedCFamC2F 560 (14 April 2025)

Appointment of an Independent Children's Lawyer

1. Pursuant to s 68L(2) of the Family Law Act 1975, X born in 2017 and Y born in 2021 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

(a) forthwith upon appointment by Victoria legal Aid or otherwise, the Independent Children's Lawyer file a notice of address for service;

(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children's Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;

(c) the Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

(d) the Independent Children's Lawyer prepare a minute of the orders they will recommend be made as final orders.

1. Leave is granted to the Independent Children's Lawyer to inspect and copy:

(a) Any subpoena material produced in these proceedings.

1. A transcript of the proceedings on 14 April 2025 will be released to the Independent Children's Lawyer.

Section 67ZBE - Department of Families, Fairness and Housing

1. Pursuant to section 67ZBE of the Family Law Act 1975 (Cth) the Department of Families, Fairness and Housing is to provides to the Court by no later than 4.00 pm on 13 May 2025 any documents and any information in its possession or control relating to the matters in section 67ZBE (2) in relation to:

(a) X born in 2017 (child);

(b) Y born in 2021 (child);

(c) Mr Schiller born in 1982 (father of the children); and

(d) Ms Waterman born in 1985 (mother of the children);

1. An Independent Children's Lawyer has been appointed for the following reasons:

1. Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of documents available on the CCP.

1. The Court will seek the assistance of the ICL of what material in these proceedings should be released to the Family Report Writer prior to the Final Hearing and whether this is able to be contained within Division 2 of this Court.

1. The particulars to be provided by the Department of Families, Fairness and Housing pursuant to order 9 herein may relate to documents or information relating to the following matters set out in section 67ZBE(2):

(a) abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed;

(b) family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate;

(c) any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence;

(d) any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.

1. It is noted that pursuant to section 67ZBK the parties are restrained from issuing any subsequent subpoena to the Department of Families, Fairness and Housing requiring the Department of Families. Fairness and Housing to provide documents or information in relation to these proceedings, except with the leave of the Court.
2. It is noted that material may be redacted pursuant to section 67ZBF.
3. It is noted that pursuant to section 67ZBH(1) the Court must admit into evidence any particulars, documents or information provided under an order made under section 67ZBD, or under subsection 67ZBD(5), on which the Court intends to rely.
4. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
5. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
6. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
7. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

1. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. In the matter of Schiller & Waterman, I will again adjourn the final hearing of this matter. The circumstance that I am compelled to do so are very troubling. Ultimately, I place greater weight on the welfare of the children, X ('X') and Y ('Y') (collectively referred to as 'the children'), than the Court's irritation of a case taking up time, when there are other cases waiting to be heard, over and over again. I must balance that irritation with the welfare of X and Y. I must also balance that irritation with the need for procedural fairness to both parents, or, in blunt terms, to avoid trial by ambush.

1. The Court rules[1] and common-sense procedure provide that both of the parties are obliged to put their evidence in writing to the other side (the process of seriously affirming what is in an affidavit, to be filed and served) so that the other side can know what the evidence is they have to meet. Litigation about anything, but particularly about children's welfare, is not meant to be some form of speed dating or game of whack-a-mole whereby the parties get a second or so to react to something.
2. The procedural orders in this matter were made on 2 August 2024 and they are as follows.

Trial Directions

1. By no later than 4.00 pm on Monday 9 September 2024, the Husband file and serve:

(a) any Amended Initiating Application setting out with particularity the precise final orders sought;

(b) an updated single consolidated trial affidavit;

(c) other witness affidavits upon which they intend to rely; and

(d) an updated Financial Statement.

1. By no later than 4.00 pm on Monday 23 September 2024, and whether or not the Husband has complied with the previous order, the Wife file and serve:

(a) any Amended Response setting out with particularity the precise final orders sought;

(b) an updated single consolidated trial affidavit;

(c) other witness affidavits upon which they intend to rely; and

(d) an updated Financial Statement.

13. By no later than 4.00 pm on Monday 7 October 2024:

(a) the parties file and serve any affidavit(s) strictly in reply addressing only the evidence presented in the other party's affidavit.

1. By no later than 4.00 pm on Monday 14 October 2024, all parties file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events that are relevant to the issues to be determined by the Court;

(c) a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;

(d) a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:

(i) the assets and liabilities available for division;

(ii) the value of items where the value is in dispute;

(iii) contributions claimed or contended for and the percentage-based adjustment on contributions contended for;

(iv) relevant s 75(2) factors and the percentage-based adjustment contended for; and

(v) any further factors relevant to determining a 'just and equitable' division of property.

1. The background is that the parents, Mr Schiller ('the Father') and Ms Waterman ('the Mother'), commenced cohabitation when they married in 2014. The Father is currently 42 years, and the Mother 39. They separated in 2022, and these proceedings commenced in September 2022. Following separation, there was a time when the Father did not see the children at all, and then, down the track, there was a period of supervised time.
2. There was a family report prepared by Dr B in this matter, dated 8 March 2024, which included the following observations of the children and their relationships:

...

1. When [X] was asked the best thing about Mum she stated, "she takes us to dad sometimes". When asked the best thing about Dad, she noted "sometimes we get lots of stuff we want and Dad and me are planning to get a dog pet...a [breed]".

2. When [X] was asked by the writer to tell her the worst thing about Mum she stated "When Mum gets sick and we can't go to Daddy's house". When asked the worst thing about Dad she stated, "sometimes he doesn't get our favourite toy".

3. When asked what makes her happy [X] stated, "I like seeing Dad and drawing makes me happy". She noted that she felt sad "when I don't get ice cream and I don't get my hot chocolate".

...

1. [X] was asked to draw a picture of her family and she used two pages to do this. On one page she drew and labelled "Mum, [Y], Nana and [X]". She drew smiles on all the faces of the people in this picture. On the second page she drew a lone figure and wrote "Dad!" written inside the bubble and an exclamation mark. It appeared as if the bubble was a speech bubble, and his mouth was open in the picture.

...

1. [Y] aged 2 years [...] was too young to be interviewed for the purposes of this report.

1. But suffice to say that the independent evidence indicates that the children have a significant relationship with both of their parents, and that there was, at least in the past, a need for the children, on one view, to spend more time, not less time, with the Father.
2. The Father is restrained from personally cross-examining the Mother because of the operation of section 102NA of the Family Law Act 1975 (Cth) ('the Act'). That applies at the moment. The Father, as I understand it, has chosen not to proceed with the assistance of the particular section 102NA lawyers that either have been, or would be, allocated to him. The Father represents himself, and he is intelligent and articulate. The Mother has the benefit, or disadvantage, as the case may be, of being represented by lawyers also appointed under the section 102NA scheme.

1. The matter was booked in for three days of final hearing to commence this morning. The matter concerns property proceedings and the living arrangements for the children, X (born in 2017) and Y (born in 2021). The existing Court orders as to the children's time with their father provide that he is to see the children each Sunday morning, overnight on the Sunday, and deliver them to school, or the Mother's care, on the following Monday morning. But from January of 2025, by agreement between the parents, and not needing a Court order, the parents agreed that X and Y's time should be extended until the following Tuesday morning. That is, that the Father spends from Sunday morning, all day Sunday, and then, if it is a school day, delivers them to school and picks them up at the end, and then takes them to school on the Tuesday. That regime continues during school holidays.
2. Recent events have overtaken the parties and orderly preparations for trial. The existing family report is dated March 2024, contemplating a much earlier hearing. The matter had been fixed for final hearing on two prior occasions, but those hearings were vacated or adjourned because of the manner in which the proceedings were conducted. Hence, it is with the greatest of resistance and hesitation that I consider any further adjournment of the matter.

1. Events of which I am simply not able to presently determine the importance, or whether they will advance the case of either the Mother or the Father, or neither of them, include the following.
2. Earlier in 2024, and I understand in about April, it was alleged by the Mother that the Father had inappropriately touched the child, X, in what is suggested to be a sexualised manner, and that X had complained of that. That is not a matter that was dealt with in the family report, that report having been completed just prior to those allegations arising. It appears common ground that neither Child Protection nor the Sexual Offender Child Investigation Team ('SOCIT'), were involved in investigating those allegations.

1. That April allegation of inappropriate touching of X by the Father did not make it to either SOCIT or Child Protection but was ventilated in the parties' trial affidavits filed in 2024. It then became apparent this morning that there was, or is alleged to be, both contact with, and perhaps not involvement of, both SOCIT and/or Child Protection in late 2024 in regard to another child welfare issue, and apparently not the earlier April alleged inappropriate touching.
2. The Mother's position today in regard to the April incident (that was not activated before Child Protection or SOCIT) was that she believes there was some harm or inappropriate touching by the Father, but that SOCIT did not proceed because there was not sufficient evidence, and that the matter was referred to Child Protection, but that Child Protection did not take the matter any further, and the Mother does not know why.
3. In any event, in late 2024 it is alleged that there was further contact with Child Protection and/or SOCIT relating to allegations of injuries to the child, X. The Father alleges, and it is not disputed yet, that he became aware of the allegations via the parenting app, but was not aware until this morning, at Court, that those matters had been raised with SOCIT and Child Protection.

1. In January, X was due to return to school. The Mother alleges that from the start of the school year, in January 2025, until 7 March 2025, on the Monday and Tuesday of each week when X should have attended school (from the Father's care), she did not. She only attended school on three days during that period. Apparently, the school that the child attends was unsurprisingly unhappy with that arrangement and contacted the children's mother, if not both the parents, to inquire about what was going on. For a period then, from 7 March until 23 March 2025, the Mother stopped the Father's time as I understand it, and I infer, in the hope that X would attend school more regularly. As I understand it, it is now conceded that X has been attending more regularly following that intervention.
2. The Father asserts that the Mother unilaterally chose this school, that it is not appropriate for the child, that it is a religious school and that the travel involved to and from the school makes it either practically impossible, or very difficult, for him to maintain employment and either deliver or collect X to or from school on the three occasions in each week. Further, he says that there are many public schools, or what is known as "state schools", very close to where both the parents live. The travel time is itself disputed, and the Mother asserts it is only something in the order of 22 minutes of travel time from the Father's home to the school, like it is from hers. It turns out the parents do not live that far apart but travel past a number of schools to another school. The Father seeks to change that school in any event. The Mother seeks to have Y enrolled at that same school. Those matters would have been able to be determined if this matter was able to proceed to hearing.

1. The Father's time, pursuant to the new agreed arrangements, meant that the children came to his care in April 2025, on Sunday morning, and returned to the Mother by a changeover at a restaurant nearby to where the parents live two days later. The Mother alleges that the child, X, was bleeding from her anus and that the Father had at least not appropriately attended to the medical care of the child during his care of the child. The Father alleges that this "bleeding" (it is unclear if this is blood in a stool or toilet paper) was not a new thing. The Mother is critical that the Father, being aware of some bleeding of the child, had not taken her to a general practitioner ('GP') or a doctor.
2. Upon the child returning to the Mother's care, she says she became concerned about the child's welfare, attempted to find a GP to see the child but was unable to and, in those circumstances, attended C Hospital at about 8 o'clock on Saturday night (four days later), and was discharged at approximately 2 am. The Mother asserts that the examining doctor advised her to report the child's circumstances to SOCIT. It is not clear to me whether the doctor was aware that SOCIT had previously been involved.
3. In regard to the current wave (what I will call the 'April 2025 issue') the Mother's position today is that she does not allege that this arises from sexual abuse, but that there had been bleeding for several days, and that there are a number of potential explanations for those circumstances, including innocence by the Father, but also including inappropriate medical care or supervision. She says clearly (through her counsel), "I just don't know", but that her concerns were raised because of the recommendation by the doctor at C Hospital to refer to SOCIT.
4. The Father says he has not been contacted by either Child Protection or SOCIT in regard to the late 2024 allegations or the allegations arising recently when the children were returned in April 2025. All of those circumstances, including the uncertainty of what might have happened and what is alleged, and what the motivations of the respective parents might be, raise the question of whether the matter can possibly proceed in the best interests of the children and with procedural fairness to the parties.
5. Hence, as at today, there are three, or at least three, different bundles of allegations of the welfare of the child in the Mother's care, being:
   • the April 2024 (apparently not referred to SOCIT or Child Protection);
   • the late 2024 (the injuries allegations) that were raised on parenting app between the parties and now said to have been raised with Child Protection and SOCIT; and
   • then, lastly, the allegations (or, even if they are not allegations, the information that arose) said to be following the Father's care of the children for two days in April 2025 that arose or were dealt with at C Hospital four days later.

Father proposes oral evidence by four witnesses

1. When this matter came on for hearing, I took up some time giving the Father a hard time about the importance of procedural fairness to the other side. The circumstance of that was that he proposed to call four witnesses, being his mother, his brother, another brother and his sister, evidence that relates to the defence of the Mother's allegation that a particular property in Country E is really not his, but at least his mother's, or she has an interest in it. The Father asserts that his mother has travelled from Country E to be available to give evidence in the event that she is permitted to do so, and I understand she is sitting in Court today.

1. In the circumstances of any Court proceeding, and particularly those of trial by affidavit, to have any witness, let alone multiple witnesses, be called to give oral evidence when the other side does not know what that evidence is, is entirely unsatisfactory, as I hopefully made clear to the Father and also to the Mother via her counsel. I just do not do trial by ambush. Ultimately, the parties reached the position that the Father asserted that he would be able to have those witnesses' evidence in written form by tomorrow - that is, Tuesday - having previously said that could be done by Wednesday.
2. The Mother, unsurprisingly, continues to oppose the admission of that evidence in those circumstances and, with her duty to the Court, the Mother's counsel points out the practical difficulty of starting the Father's case as an applicant to be cross-examined about matters when other witnesses are going to give evidence later on about the very same matters. I may have determined that the case should commence without those witnesses. The matter is more complicated because the Father's mother, present in court, was joined to these proceedings on the application of the Mother, in the circumstances of the Mother seeking orders that the Father do certain acts and things, and his mother likewise, in regard to a property in Country E, and that she be paid part of the proceeds of sale. Notwithstanding that, no material was filed by the Father's mother, and I have no explanation why not at this point.
3. The matters relating to the children's welfare satisfy me that there are allegations of abuse here. I have some circumspection about whether those allegations will be continued, or whether they will be found to have an innocent explanation. But at the moment, an innocent explanation for at least the April 2025 allegations is not conceded. After he had an opportunity and time to reflect on it, the Father, having previously insisted on the matter proceeding, reflected that he was alarmed at the extent of the matters that he was learning of this morning, and felt that to proceed in those circumstances would be unfair.
4. I am unable to, and do not make a judgment as to which party has least complied with various disclosure allegations, and it is not to the point this morning to engage in some sort of a "Royal Commission inquiry" as to how that has come about, but as the judicial officer who will have the privilege, but burden, of making factual determinations in this matter, including the parents' respective attitude to the other as a parent, their support of Court orders, their support of the practicalities of life, like children being educated, I am simply not satisfied that it is in these children's interests or procedurally fair to either party to commence the trial.
5. In those circumstances, with much pique and unhappiness, I am compelled to adjourn the matter again. I will stand the matter down and hear from the parties at 2.15 pm as to what further orders, if any, should be made in the meantime. I will be making orders for the parties to file updating affidavits to deal with allegations up to today, and for the Father to have any other witness that he seeks to rely upon to be on affidavit, served and filed. All of those matters should happen within 28 days. In the light of there being the possibility of a further investigation, there may need to be issues of reply. In any event, an Independent Children's Lawyer ('ICL') will have an opportunity to make any application for any necessary procedural matter that that that ICL seeks. I will hear from the parties at 2.15 pm as to whether the matter should be contained in this Court. This Court deals with matters of up to four days, and matters that are likely to go longer than that are usually transferred - not always, but usually transferred to Division 1 of this Court, which has the facility to hear longer cases without disrupting other cases before it.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy.

[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ('the Rules').