Lyon & Seger
[2025] FedCFamC2F 256
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lyon & Seger [2025] FedCFamC2F 256
File number(s): MLC 12735 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – Parenting – regional circuit matter – undefended hearing – long period where 5-year-old child separated from primary care giver – child impact report made when equal time proceeding – orders made for a 5/9 nights (3 + 1 + 1), half school holidays and equal decision making responsibility as sought by mother. Legislation: Family Law Act 1975 (Cth) ss 60CC, 60I and 117 Division: Division 2 Family Law Number of paragraphs: 44 Date of last submission/s: 13 February 2025 Date of hearing: 12 February 2025 Place: Melbourne Counsel for the Applicant: Ms Bonney Solicitor for the Applicant: Sexual Assault and Family Violence Centre The Respondent: No appearance ORDERS
MLC 12735 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LYON
Applicant
AND: MR SEGER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All extant interim orders concerning the child, X (“the Child”), born in 2016, be and are hereby discharged.
2.The parties have joint decision-making responsibility for all major long-term issues for the Child.
3.The Child live with the Mother.
4.The Child spend time with the Father as follows:
(a)Commencing Wednesday 26 February 2025, each Wednesday from 3.30 pm (or the conclusion of school) until 9.00 am (or the commencement of school) Thursday; and
(b)Commencing Friday 28 February 2025, each alternate Friday from 3.30 pm (or the conclusion of school) until 9.00 am (or the commencement of school) Monday, with the first of such visits to commence on Friday 28 February 2025 and continue each alternate weekend thereafter;
(c)During the school term holidays, the abovementioned time will be suspended and the Child will spend time with the Father for half of the gazetted school holidays in one week blocks commencing the first week in even years and the second week in odd years; and
(d)Such further and other times as agreed in writing between the Mother and Father.
Changeovers
5.All changeovers that do not occur at the Child’s school take place at the front foyer of the Suburb B Woolworths (C Street, City D, Victoria) with the Father to approach from the E Store entrance and the Mother to enter by the F Store entrance or as otherwise agreed between the parties.
Special Occasions
6.At Christmas, all spend time arrangements will be suspended and the Child will spend time with the Mother and Father as follows, with changeover to occur inside McDonalds Suburb B (H Street, City D, Victoria):
(a)In even years, from 5.00 pm Christmas Eve until 2.00 pm Christmas Day with the Mother, and from 2.00 pm Christmas Day until 5.00 pm Boxing Day with the Father;
(b)In odd years from 5.00 pm Christmas Eve until 2.00 pm Christmas Day with the Father, and from 2.00 pm Christmas Day until 5.00 pm Boxing Day with the Mother.
7.At Easter, all spend time arrangements will be suspended and the Child will spend time with the Mother and Father as follows, with changeover to occur inside McDonalds Suburb B (H Street, City D Victoria):
(a)In odd years, from 9.00 am on Good Friday until 5.00 pm on Easter Sunday with the Mother, and from 5.00 pm on Easter Sunday until 5.00 pm on Easter Monday with the Father;
(b)In even years, from 9.00 am on Good Friday until 5.00 pm on Easter Sunday with the Father, and from 5.00 pm on Easter Sunday until 5.00 pm on Easter Monday with the Mother.
8.If Father’s Day falls on a weekend when the child is not already spending time with the Father, from 9.00 am Sunday until the commencement of school (or if a non-school day then 3.30pm) on Monday.
9.On each of the Child, G, J, K and the Father’s birthdays (if the Child is not to be spending time with the Father on these occasions) in the event the birthday falls on a school day, from the conclusion of school or 3.30 pm until 6.00 pm, or in the event that the birthday falls on a non-school day from 9.00 am until 2.00 pm and the child’s time with the Mother be suspended.
10.If Mother’s Day falls on a weekend when the child is not already spending time with the Mother from 9.00 am Sunday until the commencement of school (or if a non-school day then 3.30 pm) on Monday.
11.On each of the Child, L and the Mother’s birthdays (if the Child is not to be spending time with the Mother on these occasions) in the event the birthday falls on a school day, from the conclusion of school or 3.30 pm until 6.00 pm, or in the event that the birthday falls on a non-school day from 9.00 am until 2.00 pm and the Child’s time with the Father be suspended.
Communication between the Child and Parents
12.The Child be at liberty to communicate via telephone with the parent with whom they are not living, and the resident parent will facilitate such calls during any reasonable hour and afford the Child privacy during such calls.
Parental Communication
13.The Mother and Father communicate via AppClose for all non-urgent communication regarding the Child.
Contact Information
14.Each parent keep the other informed of their current residential address, mobile and landline phone numbers and any available email address and advise the other parent of any change thereto with seven (7) days of such change.
Health
15.In the event of childhood illness or emergency, the parent with whom the child is with contact the other parent forthwith to inform them.
16.The parents be a liberty to engage with the Child’s current medical or allied professionals and any other profession they both agree to engage.
Education
17.Both the Mother and Father be permitted to liaise direct with the Child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Child’s progress and this Order operates as an authority to school to provide either parent with all information each parent is usually provided with.
18.Each party is at liberty to attend the Child’s school for the purpose of any function or activity normally attended by parents.
Parental Behaviour
19.Without admitting to the necessity of, pursuant to section 68B of the Family Law Act 1975 (Cth), each party and their agents and servants be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or their family in the presence and hearing of the Child and on Facebook or on any other social media;
(b)Passing messages through the Child;
(c)Involving the Child in any form of dispute between the parties;
(d)Exposing the Child to any form of family violence;
(e)Using any developmentally inappropriate discussion related to the Child’s parenting arrangements; and/or
(f)Using any physical or excessive verbal discipline on the Child or allowing anyone to do that.
Service
20.The Mother and/or her solicitors do all acts and things to serve upon the Father a copy of these orders to the Father’s known email addresses (ending in …@... and …@...), and a copy of the reasons for judgment as soon as they are available to the same email addresses.
21.The Mother do all acts and things to send a message to the Father via the AppClose app advising that orders have been made in this matter, that reasons for judgment will soon be available and sent to him via email, and also include a short summary of the parenting arrangement created by these orders.
AND THE COURT NOTES THAT:
A.The final hearing proceeded in the absence of the Father, Mr Seger.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
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).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy:
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.
Background
In the matter of Lyon & Seger, the matter came before me listed for final hearing on Wednesday, 12 February 2025. On that day, I was concerned to deal with three questions:
(1)Whether the hearing should proceed that day in the absence of the father, Mr Seger (‘Mr Seger’); and
(2)If it should proceed, whether it should proceed having regard to only the evidence of the mother, Ms Lyon (‘Ms Lyon’), or what is known as “undefended”; and then
(3)What was in the best interests of X (‘X’).
Interim orders
X was born in 2016 and is now, or will soon be, nine. Since orders were made on 13 March 2024, both parents have been significantly involved in X’s life. The orders of 13 March 2024 were made by consent and reflect well on both parents. What the orders provided for was a three different stage regime of time whereby X, who had been living with her father and spending only limited supervised time with her mother, would commence to spend limited overnight time in a block of time from 13 March 2024 for the next couple of weeks to 27 March 2024 and, thereafter, the time would accommodate the Easter holidays. Then commencing on the 8th of April 2023, X was to live week about. Those orders were interim orders and were to take place and hold the fort, so to speak, until the final hearing.
Mr Seger’s participation
It is my observation and finding, as discussed with the parties on Wednesday, 12 February 2025, that Mr Seger has had the opportunity to participate in, lead evidence, make submissions and be involved in the proceedings, if he wished. I also put the solicitors for Ms Lyon and Ms Lyon herself to the trouble of sending AppClose messages to Mr Seger on that day, Wednesday, 12 February 2025, to remind him or alert him that the proceedings were proceeding that day. From the exhibits tendered, I am satisfied that Mr Seger was reminded on that day of the hearing proceeding. He was asked to contact Ms Lyon’s solicitors or the court urgently, in any event. I am satisfied that he did not do so. Further, being made aware of Mr Seger’s mobile telephone number, my associate telephoned him “live” from the courtroom on the morning of Wednesday, 12 February 2025. The call was not taken or picked up.
On Wednesday, 12 February 2025, I was satisfied that it was appropriate in the circumstances to proceed in the absence of Mr Seger, and it was appropriate to proceed on the basis of Ms Lyon’s evidence, being in two affidavits and principally contained in the affidavit of Ms Lyon of November 2023. The matter had been listed for mention to ascertain whether a final hearing should proceed as undefended. On the day, counsel for Ms Lyon made application that the matter proceed that day. I was satisfied, in the circumstances of Ms Lyon’s attendance at court together with solicitor and counsel, and Mr Seger’s failure to file recent documents or attend court, that it was appropriate to proceed to finalise the matter that day. I then proceeded to hear the application for final orders.
Ms Lyon’s mental health
Ms Lyon was called to the witness box by me and gave further evidence. One of the matters I pressed Ms Lyon about was whether she was under any psychiatric treatment or therapy at that time, and she told me that she was not. I accept that evidence.
Prolonged period of X not spending time with Ms Lyon
I also pressed Ms Lyon for her understanding, doing the best she can, of just why it was that such a long period went by when Mr Seger, having the care of X, did not facilitate or arrange time with her. However, Ms Lyon was unable to point to any event, circumstance or thing that would justify that. I pressed Ms Lyon’s lawyers to assist me with any such evidence or potential evidence that would explain that circumstance.
The questions in my mind about that arose from the circumstances that, until October 2021, X then being five years old, X had lived entirely in the care of her mother, and, after her brother, L was born – in 2020 – in the home of her mother with her brother L. After X was born, by sensible agreement between the parties, according to Ms Lyon (whose evidence I accept), the parents settled into a routine where X would spend alternate weekends with her father and his parents from Friday to Sunday. That all changed over a weekend in October 2021.
According to Ms Lyon, there was a confrontation in a public place between a group of people apparently associated with Mr Seger and herself and some friends of hers. The net result after that confrontation, and at this time X being in the care of her father, was that X was not returned to the care of her mother. Ms Lyon deposes to informing the police and seeking their assistance in regard to the confrontation, which she describes as a serious enough assault upon her. She describes attending the police station for the purpose of making a statement, whereby nothing further was heard.
The aspect that Ms Lyon attended the police station, made an account of the events of being seriously assaulted by people in the company of Mr Seger, and the police simply not doing anything or taking any action, is, on its face, implausible. That something is implausible does not mean it did not happen. However, the degree of implausibility about that account of the police simply not doing anything is such that I am not prepared to proceed on the basis and accept the evidence that Ms Lyon did make a full account to the police and then the police did nothing about it. That may have happened, but I am not prepared to make that finding without the police having an opportunity to respond to that allegation.
The extent of the implausibility of another event (that is, that a full and frank account of all these events referred to in the affidavit was put before Child Protection and they did nothing) is, on its face, implausible. I am not finding that those events did not happen, however, I am not prepared to find that they did without Child Protection having an opportunity to put their side of the story.
In any event, the circumstances of that confrontation, the circumstances of Ms Lyon’s complaint to the Police and the circumstances of Ms Lyon’s complaint to Child Protection do not inform this application and case. That is because it is common ground that, until October of 2021, X had lived entirely in the care of her mother. It is common ground that, from October 2021 until late 2022, when there was limited supervised time, that X did not see her mother at all. There can be no doubt (I accept Ms Lyon’s account) that, after X had not been returned to her care (and, I infer, she felt powerless to do anything about it) Ms Lyon was as she deposes at paragraph 33:
33.I was very distressed after [Mr Seger] refused to return [X] to my care. It was a very difficult time for me. I did not cope with being separated from [X]. I was in a dark place and struggling.
Ms Lyon also sets out her attempts to contact what she describes as “numerous family lawyers in the [City D] area” where no one had the capacity to assist her, until she finally had an appointment with a lawyer in City M.
34.I contact numerous family lawyers in the [City D] area but no one had capacity to help me. Finally in mid-2022 I obtained an appointment with a lawyer in [City M], but I found it too difficult to complete paperwork and to instruct this lawyer remotely.
35.During 2022 I engaged with [N Service] in [City D] and was referred to a family support worker at [O Service]. My support worker helped me with practical tasks such as waiving my obligation to seek child support for [L] and enrolling him into day care and kindergarten.
36.In August 2022 I engaged with a family violence support worker at [P Service]. The family violence support worker helped me to understand that [Mr Seger]'s behaviour towards me constituted family violence.
37.I tried to engage with a family lawyer at the [P Service] at that time but no one there had capacity to help me.
38.In late 2022 I initiated mediation through [Q Service] but [Mr Seger] refused to participate in this process and a section 601 certificate was issued.
39.While [Mr Seger] wouldn't participate in mediation, he agreed that [X] and I could recommence contact. However, he insisted the visits be supervised at [Q Service]. I reluctantly accepted this offer because I was desperate to reconnect with [X] even though I knew that supervision was not necessary.
The bottom line is that Ms Lyon sought assistance from professional agencies, she was able to speak to many people about her predicament, but the one crucial thing that she needed, which was an application to be made to the court, was unable to be made. That was a tragedy for X and a tragedy for Ms Lyon.
Apparently, through a child supervision service, Ms Lyon attempted to involve X’s father in mediation. It is compulsory to have mediation before you commence a court case pursuant to section 60I of the Family Law Act 1975 (Cth) (‘the Act’) in the Family Law Act courts unless there are certain urgency or family violence issues.
Section 60IAttending family dispute resolution before applying for Part VII order
(1)The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order ) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
…
Applications for a Part VII order
(6)Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after 1 July 2008.
Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order
(7)Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
…
Exception
(9)Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
…
(b) the court is satisfied that there are reasonable grounds to believe that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; or
…
Ms Lyon deposes, and I accept, that Mr Seger refused to participate in the mediation process, and the necessary section 60I certificate was issued. Although Mr Seger would not agree to participate in mediation, he did agree that X should see her mother provided those visits were supervised by a professional child supervision service. Ms Lyon deposes, and I accept:
I reluctantly accepted this offer because I was desperate to reconnect with [X], even though I knew that supervision was not necessary.
Ms Lyon was finally able to engage a legal service lawyer in or around March of 2023. Sensibly, the lawyers wrote to Mr Seger in August, and his response was that he wanted more time to go over the proposal with his solicitor.
40.I finally engaged with a lawyer at [P Service] in around March 2023. I obtained a grant of legal assistance to participate in lawyer assisted mediation through Victoria Legal Aid's Family Dispute Resolution Service (FDRS). However, in August 2023 FORS advised that mediation could not go ahead because it was not considered suitable.
Later, in September, solicitors, who confirmed they had seen Mr Seger but were awaiting further instructions, made contact with Ms Lyon’s solicitors. However, they did not act, and no further contact was made. In those circumstances, Ms Lyon issued proceedings on 1 November 2023. By this time, it was now a little over two years since X had been removed from her mother’s care.
The supervised visits commenced in December of 2022, and observations of the contact between Ms Lyon and X on those initial supervised visits by the contact centre include the following:
First visit – 10 December 2022[1]
[1] Page 57/60 of contact service report dated 31 August 2023 (annexed to the affidavit of Ms R dated 3 January 2024).
Visit overview
[X] ran immediately into [Ms Lyon]’s arms a long hug was exchanged, the pair clung briefly to each other, [Ms Lyon] told [X] that she had really missed her a lot. [X], smiling, let [Ms Lyon] know that she had really missed her as well.
…
The last part of the contact found [Ms Lyon] and [X] sitting on the couch together, [Ms Lyon] had her arm around [X] as they scrolled through photos of home. [X] was very happy to see that all her things were still in her room, such as her Barbies.
…
[X] said on several occasions “I love you Mummy”, [Ms Lyon] looked a little tearful just after this comment came out of the blue.
…
[Ms Lyon] and [X] exchanged very warm hugs and kisses at the front door as [Ms Lyon] departed, telling [X] she would see her at Christmas.
Second visit – 24 December 2022[2]
Visit overview
When [X] entered the main contact space she went straight to her mother and the pair exchanged a big hug and kiss. [X] climbed onto [Ms Lyon]’s lap, and they cuddled for a time. … During the visit the pair exchanged some cuddles and [X] was heard to say, “I don’t want to go home.” [Ms Lyon] continued to hug [X] and did not reply to this.
…
Spend time with parent and child’s reaction to ending of visit
When it was time for the visit to conclude, [Ms Lyon] and [X] exchanged lots of hugs and kisses and [X] stated several times that she did not want to leave [Ms Lyon]. [Ms Lyon] did not respond to this specifically but replied with hugs and kisses and “I love you” statements.
[2] Page 55/60 of contact service report dated 31 August 2023 (annexed to the affidavit of Ms R dated 3 January 2024).
The long and the short of the evidence of the supervised visits, properly put before me, is that X very much enjoyed her mother’s time with her, told her she missed her, was very reluctant to leave that time, and it is apparent from those observations that X was desperate to spend more time in her mother’s care.
At the same time as the orders referred to earlier were made, orders were made for the preparation of a Child Impact Report. I note that, Mr Seger participated in that report.
10.[Ms Lyon] advised that during their relationship [Mr Seger] exhibited controlling behaviours and perpetrated physical, emotional and sexual family violence towards her, inclusive of lethality risk factors such as strangulation, threats to kill and assault during pregnancy. [Ms Lyon] asserts that she was physically assaulted by [Mr Seger]’s family and associates in 2021, and that he refused to return [X] to her care following this. In contrast, [Mr Seger] categorically denied that family violence was a current or historical risk factor and asserted that he assumed primary care of [X] in 2021 due to concerns for her stability and wellbeing in [Ms Lyon]’s care, at that time.
11.Despite their pats acrimony, the parents report that their current communication is currently largely respectful via a parenting application and their narratives did not indicate current serious risk factors for family violence. [Ms Lyon] however held the view that the parenting relationship is impacted by the past conflict and that an underlying power imbalance remains present within the co-parenting relationship. For example, in her experience although respectful, that [Mr Seger] can come across as demanding in their communication via the parenting application.
12.Victoria Police information advised that [Mr Seger] has been involved with police regarding alleged assault/ family violence matters in [late] 2023, which were withdrawn. In [early] 2023, charges were laid regarding multiple driving offences resulting in a fine without conviction. In [early] 2023, a charge was laid regarding unlawful assault, fined without conviction. In [late] 2022, [Mr Seger] was convicted regarding driving matters. In 2017, [Mr Seger] was charged with stalking matters without conviction.
…
13.[Mr Seger] did not hold current concerns for [X]’s safety and wellbeing in [Ms Lyon]’s care however noted historical concerns that [Ms Lyon] was often out late with [X], did not provide her with stable routines, and that [X] was regularly unwell. [Mr Seger] advised that recently based on [X]’s narrative to him, [Ms Lyon] has asked [X] to keep secrets from him. Apart from this, he held the view that [X] was managing the current situation well.
…
16.[Ms Lyon] advised that she has experienced depression and anxiety for many years, escalated by the stress of a disrupted spend time with [X]. [Ms Lyon] advised that she currently experiences good mental health.
…
19.Whilst noting some historical concerns in the context of risk screening questions, and complexities in coparenting communication, the parents were largely satisfied that [X] currently had the opportunity of having two safe parents who she has a positive relationship with. This was supported by [X]’s narrative. Based on child protection information, [Mr Seger] with the support of his family, has seemingly met [X]’s needs to a satisfactory level in the prior years and likely that [Ms Lyon] also did so, when [X] was primarily in her care. It is of strength that both parents appear to be putting effort into supporting her transition and [X] for the most part, benefiting from her parents’ efforts at child focussed decision making. The parents also live in close proximity which support the practical requirements of a shared care arrangement.
…
21.It is noted that shared care arrangements work best when they are child focused and co-operative. There are challenges with a shared care arrangement if the parental relationship is strained or not well established, and children can be left navigating complex dynamics, the emotional needs of her parents and playing the role of messenger if parenting communication is not effective. Shared care arrangements are riskier for children when family violence is present or when historical family violence dynamics place pressure on the co-parenting relationship, inclusive if one or both parents feeling reduced safety. If a power imbalance is present between the parents as [Ms Lyon] asserts, this may play out in [X] being burdened by inflexibility in communication and their reduced capacity to safely problem solve and manage issues as they arise.
…
23.The impact of further change and [X]’s opportunity for stability and predictability requires careful consideration. Given the history of unilateral decision making in the parenting relationship there is risk that if one parent is not satisfied with the future arrangements, that orders may not be complied with moving forward and/or systems such as police, and child protection are utilised to impact parenting arrangements.
24.Based on [X]’s narrative, her status quo is meeting her needs. Yet, [Ms Lyon] holds the view that increased stability in her parenting arrangements will provide her emotional relief. In the absence of current family violence, given the quality of her relationships with both parents, [X] will likely benefit from both of her parents playing a significant and substantial role in her life. The current shared care arrangement provides this to her. Such arrangement with block time with each parent, inclusive of recreational and routine based time, provides to her opportunity to maintain quality and meaningful relationships with both parents, her siblings and extended family. There was no information identified in this assessment to suggest that both parents are not adequately supporting [X]’s relationship with the other parent at this time. In this case, a shared care arrangement may continue to work well for [X] however, it is difficult to predict how it may play out for her during her developmental trajectory.
…
25.Both parents confidently and consistently described [X], her personality, developmental stage and routines and considered the current arrangement to be working well for the most part. [Mr Seger] initially presented as disinterested in his tone and mannerism however this seemed to be as he considered the current arrangement, as per interim consent orders to be working well for [X] and therefore expected the matter to resolve. Both parents presented as child focussed and reasonable people which left the writer hopeful of autonomous decision making and further improvement in the co-parenting relationship.
It must be noted that, by the time of the Child Impact Report, X had commenced to live in a week about arrangement. Hence, there is significant evidence that the week about arrangement worked well enough, or at least not badly. Following the Child Impact Report, it is apparent that Mr Seger did not otherwise engage with the court process or Ms Lyon’s application. I was greatly assisted by the Child Impact Report.
Ms Lyon’s orders sought
Ultimately, Ms Lyon pressed before me that X should live with her but spend time with her father on alternate weekends from school to school, Friday to Monday, and each Wednesday from school to school overnight – that is, Wednesday after school until Thursday morning.
What Ms Lyon pressed was that X would spend five nights in each fortnight in addition to half of school holiday blocks with her father. Whilst that is five nights in a fortnight, it also means that X will spend time with her father or her father’s family over four different days on the weekend as well as two different days during the week, that is, the Wednesday evening and the Thursday morning. This would mean that X would spend time with her father or her father’s family on six days of each fortnight.
Ms Lyon is concerned and expresses the view, from her observations and knowledge of Mr Seger and her conversations with X, that Mr Seger continues to work full-time as a transport worker, and it is to his credit that he appears to be a consistently hardworking man, and that a large part of the joy, but also burden, of caring for X is undertaken either by Mr Seger’s partner or his parents.
Best interests
Ms Lyon presses that a return to the situation that had long existed before the events of October 2021 is advantageous to X and that a regime where she lives predominantly with her mother but spends considerable time with her father is in her best interests. I note also that Ms Lyon presses for the parties to have joint long-term decision-making responsibility.
I must apply the provisions of the Act and make orders that are in the best interests of X.
Section 60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
…
Considering the matters in section 60CC of the Act leads me to conclude that the orders proposed by Ms Lyon are in X’s best interests. I consider those matters as follows.
60CC(2)(a) arrangements that would promote safety
The existing arrangements and the proposed arrangements by Ms Lyon have, by and large, school-to-school changeovers in the absence of the other parent, and it would only be on special occasions and school holidays that there would need to be an alternative arrangement. The arrangements proposed by Ms Lyon do not bring the parents into contact with each other and, even on the non-school changeovers, have a precise regime that ensures the parents do not come into contact with each other. It is regrettable that such arrangements are necessary, but I am satisfied that they are.
60CC(2)(b) any views expressed by the child
X has expressed a preference to continue in the current arrangement and very much wants a relationship with both of her parents.
60CC(2)(c) the developmental, psychological, emotional and cultural needs of the child
I am satisfied that it is in X’s best interests to live, or spend greater time with, her mother than with her father in the circumstances where she was raised and cared for, predominantly, by her mother from when she was born until she was five, and then there has been a serious interruption in that time spent. However, it appears that the mother-and-child bond has not been interrupted and, by the love and affection between Ms Lyon and X, the mother-and-child attachment has been maintained throughout the difficult time of no time and supervised time.
60CC(2)(d) the capacity of each person involved with the child
I must take into account the capacity of each person who is proposed to have parental responsibility to provide for the child’s development, psychological, emotional and cultural needs. In this regard, I place significant weight on Ms Lyon’s proposal, notwithstanding the events that have been inflicted upon her, to propose that the child spends substantial and significant time, in the ordinary sense of those words, with her father. I also take into account the very long period of time when I am satisfied it was unreasonable and unduly punishing of Ms Lyon for there to be no time, and then a very long regime of supervised time before Ms Lyon was able to obtain the assistance of the court process.
That Ms Lyon needed to undertake such efforts to be able to obtain a proper relationship and time with X and in the circumstance where there is no evidence whatsoever of Mr Seger promoting unsupervised and regular time with X for such a period between October 2021 and late 2022, in my view, demonstrates that Ms Lyon has a significantly greater capacity to provide for the child’s psychological and emotional needs of having a strong relationship with both parents. That matter contends very strongly for the orders that Ms Lyon seeks.
60CC(2)(e) the benefit to the child of being able to have a relationship with the child’s parents
In this case, despite the punishing limitation of the time that she was able to spend with X when Mr Seger had the de facto power or control of the situation, the orders sought by Ms Lyon demonstrate that it is Ms Lyon’s view that there is a benefit to the child of having a relationship with both parents. Further, the court child expert who wrote the child impact report is firmly of the view that X needed to have a relationship with both of her parents.
60CC(2)(f) anything else that is relevant to the particular circumstances of the child
I must take into account under 60CC(2)(f) anything else relevant to the particular circumstances. The further matter is the unexplained approach of Mr Seger to these proceedings of not engaging. Notwithstanding that failure to engage beyond attending for the child impact report, I am satisfied that it is in X’s interests to spend time with him. I am largely satisfied because of the observations of the child impact report and because of Ms Lyon’s position and effective advocacy that that should happen.
60CC(2A) consideration of family violence
I must take into account, pursuant to section 60CC(2A), in considering those matters, any history of family violence, abuse or neglect and any family violence order that applies. In this case, I have allegations of serious family violence, and I am satisfied that Ms Lyon has been subjected to significant family violence, at least in an oral or verbal sense. In the end, the allegations of family violence do not assist me to determine X’s best interest because Ms Lyon presses for Mr Seger being very substantially involved in X’s life and spending substantial time with her. Nonetheless, I have considered those matters, as commanded by section 60CC.
In addition to the orders that Ms Lyon presses before me, I will order Ms Lyon to inform Mr Seger via the AppClose app of the fact that I have concluded this case and made final orders and delivered my reasons, and providing for the substance of the time with or between X and Mr Seger. The long and the short of it is, instead of X returning to Mr Seger’s care on the following Monday, she will remain with Ms Lyon and Mr Seger’s Wednesday time will commence on Wednesday, 26 February, and his alternate weekend time will then commence on Friday, 28 February. I am satisfied that Ms Lyon will be assisted in that short explanation to Mr Seger by her solicitor. I will also request my associates to email these orders to Mr Seger’s email addresses. The AppClose message to Mr Seger should also inform him that the formal reasons will be emailed to him at the email addresses that the Court is aware of.
I note that the email addresses alleged to be Mr Seger’s email addresses have a solid foundation, being the two email addresses described in the notice of ceasing to act of the previous solicitors.
DECISION AS TO COSTS
This is the second decision in the matter of Lyon & Seger. Following making final orders and delivering oral reasons of a reserved decision, an application for costs was properly made by the solicitor for Ms Lyon.
Considering the matters under section 117 of the Act in regard to that application, I must consider the financial circumstances of the parties.
Section 117 Costs
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Ms Lyon is dependent on social security and, on the information that I have, Mr Seger is a transport worker. However, I am satisfied that the financial circumstances of both parties are modest.
I then turn to the issue of whether either party is in receipt of Legal Aid. Ms Lyon’s costs, including counsel’s costs, are covered by Legal Aid.
I then turn to the conduct of the parties in the proceedings. Mr Seger did not appear and did not file documents. The proceedings have not been necessitated by the failure of a party to comply with previous orders. Indeed, at the time of the final orders, both parties were complying with the extant interim orders for a week about arrangement. I do not consider that either party has been wholly unsuccessful in the proceedings. Mr Seger has ended up with orders that provide for a significant involvement in X’s life. I do not have evidence of any offer in writing from one to the other.
I must consider other matters that I consider relevant. In the circumstances of Ms Lyon being legally aided and Mr Seger being of modest financial circumstances, I take into account that a costs order will likely impact significantly upon Mr Seger and I am troubled about his capacity for emotional regulation when he learns of that, in addition to the reduction of his time with X that I have made by these orders. Hence, though I am not compelled to by section 117(2A)(a), I take that matter into account. It must be noted that I have not found that Ms Lyon’s account of the events of the weekend in August 2021 did not happen. Hence, I come back to the starting position of section 117(1) that, ordinarily, each party should bear his or her own costs. Ms Mulcahy, Ms Lyon’s solicitor, has very properly made a costs application in an attempt to defray the expenses that Victoria Legal Aid would otherwise meet. In those circumstances, I am not satisfied that I should make an order for costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 March 2025
0
0
1