Segner and Segner - [2018] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEGNER & SEGNER

[2018] FCCA 1618

Catchwords:
FAMILY LAW – Parenting – children to live with the father – the impact of mothers new partner on her relationship with the children – children's time with the mother – evaluation of risk factors.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MR SEGNER

Respondent:

MS SEGNER

File Number:

MLC 4698 of 2018

Judgment of:

Judge Kirton

Hearing date:

30 May 2018

Date of Last Submission:

30 May 2018

Delivered at:

Melbourne

Delivered on:

30 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms Dellidis

Solicitors for the Applicant:

Caroline Counsel Family Lawyers

Counsel for the Respondent:

Mr Combes

Solicitors for the Respondent:

J A Middlemis

ORDERS

There be interim parenting orders, by consent, in terms of the Minute of Consent Orders, dated 30 May 2018 (“the Minute”) and further:
(a)The Minute be placed upon the court file and marked Exhibit “A”.
(b)The solicitors for the Applicant Father engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to the Chambers of Judge Kirton at associate.judgekirton@federalcircuitcourt.gov.au within 7 days.
(c)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
The matter be adjourned to the Federal Circuit Court of Australia on 12 July 2018 at 9:30 am for Mention.

AND THE COURT ORDERS THAT UNTIL FURTHER ORDER:

The children [X] born 2004, [Y] born 2006 and [Z] born 2010 (“the children”) live with the Applicant Father.
The children spend time with the Respondent Mother from after school on Friday until 12:00 pm on Sunday each weekend commencing 1 June 2018.
The children’s time with the Respondent Mother be conditional upon the Respondent Mother not bringing her partner, Mr D, into contact with the children.
The parties are restrained from denigrating the other party or discussing these proceedings and the allegations in the proceedings to or in the presence or hearing of the children.
Changeovers occur inside the Woolworths Supermarket carpark, Suburb A when not occurring at the children’s school.

AND THE COURT NOTES THAT:

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 the Annexure and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Segner & Segner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4698 of 2018

MR SEGNER

Applicant

And

MS SEGNER

Respondent

REASONS FOR JUDGMENT

Ex Tempore

This matter comes before the Court by way of the husband’s initiating application filed on 2 May 2018. It is supported by the husband’s affidavit filed on 2 May 2018, and a further affidavit also filed on 2 May 2018. The husband has also filed a notice…

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.

Continue reading Segner and Segner

Details

AGLC: Segner and Segner [2018] FCCA 1618
Case: [2018] FCCA 1618
Decision Date: 30 May 2018

CaseChat Overview and Summary

In *Segner and Segner*, Judge Kirton of the Federal Circuit Court of Australia made interim parenting orders concerning the children [X], [Y], and [Z]. The dispute involved the parents' arrangements for the children's living arrangements and time spent with each parent.

The court was required to determine the terms of interim parenting orders, including the children's primary residence, the time they would spend with the Respondent Mother, and any conditions to be attached to that time. Additionally, the court needed to consider orders regarding the parties' conduct towards each other and the children, as well as the location of changeovers.

The court made interim orders by consent of the parties. The children were ordered to live with the Applicant Father and spend time with the Respondent Mother each weekend. Crucially, the children's time with the Respondent Mother was conditional upon her not bringing her partner, Mr D, into contact with the children. The parties were also restrained from denigrating each other or discussing the proceedings with the children. Changeovers were to occur in a specific carpark or at the children's school. The court noted that the particulars of the obligations and consequences of contravention were set out in an annexure, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*. The matter was adjourned for a mention.

Orders

Orders of the court

There be interim parenting orders, by consent, in terms of the Minute of Consent Orders, dated 30 May 2018 (“the Minute”) and further:

(a) The Minute be placed upon the court file and marked Exhibit “A”.

(b) The solicitors for the Applicant Father engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to the Chambers of Judge Kirton at associate.judgekirton@federalcircuitcourt.gov.au within 7 days.

The matter be adjourned to the Federal Circuit Court of Australia on 12 July 2018 at 9:30 am for Mention.

AND THE COURT ORDERS THAT UNTIL FURTHER ORDER:

The children [X] born 2004, [Y] born 2006 and [Z] born 2010 (“the children”) live with the Applicant Father.

The children spend time with the Respondent Mother from after school on Friday until 12:00 pm on Sunday each weekend commencing 1 June 2018.

The children’s time with the Respondent Mother be conditional upon the Respondent Mother not bringing her partner, Mr D, into contact with the children.

The parties are restrained from denigrating the other party or discussing these proceedings and the allegations in the proceedings to or in the presence or hearing of the children.

Changeovers occur inside the Woolworths Supermarket carpark, Suburb A when not occurring at the children’s school.

AND THE COURT NOTES THAT:

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 the Annexure and these particulars are included in these orders.

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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