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

1. 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 [email protected] within 7 days.

   (c)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

2. 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:

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

2. 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.

3. 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.

4. 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.

5. 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

1. 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 of risk on 2 May 2018.  The application relates to three children of the marriage:  [X], born on 2004.  He’s currently aged 13 and a half and he attends year eight at School 1;  [Y], born on 2006, who is currently 11 and a half.  [Y] has an intellectual disability and he attends School 2 Special School in Suburb B.  [Y] has an IQ of about 65, and in February 2018 was diagnosed with Autism Spectrum Disorder. There is a third child:  [Z], who was born on 2010 and is currently eight years old.

2. The wife has filed a response on 25 May 2018.  That is supported by an affidavit of the wife filed on 25 May 2018, sworn that day, and also a notice of risk filed on 25 May 2018. 

3. Today the husband pursues paragraphs 6, 7 and 8 of his interim application in relation to parenting.  Paragraph 6 is an order that the children live with the applicant husband.  Paragraph 7 is the children’s time with the respondent wife be suspended pending the recommendations of a family consultant pursuant to orders.  And Paragraph 8 is an order that the children spend time with the respondent wife at a time and for periods which the Court deems to be in the children’s best interest.  This matter has become more urgent as the husband has retained the children in his care, I believe, since the weekend. 

4. The reason that he has done this is due to information disclosed in the wife’s affidavit filed on 25 May 2018 as to the identity of her current partner and who is now living in the former matrimonial home with the wife and the children.  Prior to the issue of this proceeding, the husband’s solicitors wrote a letter to the wife’s solicitors dated 9 February 2018. 

5. Paragraph 7 of the letter requested information of the wife’s current partner.  Paragraph 7 says:

   Your client has not disclosed information about her current partner to our client, despite his requests.  Anything that our client does know regarding your client’s current partner has come unsolicited from the children, and our client does not wish to make any inquiries of the children.  We request that your client urgently disclose the identity of her current partner, whether he has other children, whether he has any criminal convictions and any physical or mental health conditions and any other relevant information.  If she fails to do this, this will be an issue brought to the Court’s attention, and we have every expectation that your client will be compelled to provide this evidence. 

6. Counsel for the applicant husband has submitted that no substantial response was given to this request by the wife’s solicitors.  The husband, in his affidavit, deposes that the wife’s solicitors have only advised that the husband was employed part time as a (occupation omitted).  The husband also deposes in paragraph 41 of his affidavit that he has seen the wife’s current partner driving the wife’s vehicle at pick-up and drop-off times with the children in the car with green probationary licence plates.

7. The husband, in his affidavit, has expressed his concern that the new partner may be caring for the children for substantial periods and is being required to provide [Y] with his medication and manage his behaviour. 

8. The wife, in her affidavit, says, in paragraph 12:

   I have also re-partnered with Mr D. Mr D is 29 years old and works in a (employer omitted). He has the requisite licences for (equipment omitted).  Mr D and I commenced a relationship in 2017 and commenced cohabitation when he moved into my house in late October or early November 2017.  Mr D has a history of police involvement dating from when he was 13 years of age. 

   His record of offending culminated with a term of imprisonment of about 12 months, as I understand it, it relating to various offences.  He was released from prison in 2017, and since I have known him, the person I have known and see every day is certainly significantly different from the person he must have been to be involved in criminal activities.  Mr D is constantly kind to me.  That is significant difference to the observations of our children to how the husband treated me. 

   Our children have warmed to him.  [Z] has voluntarily commenced calling him Dad, although we don’t encourage that, and the manner in which Mr D interacts with [Z] has to be seen to be believed.  Mr D is kind to [Y] and teaches him things, and their relationship has become extremely close.  [Y]’s behaviour has improved remarkably within our home since Mr D moved in. 

9. This paragraph indicates that over the past 15 to 16 years, Mr D has had a record of criminal offending. It fails to tell the Court what offences and convictions these were for. Instead, we have to rely upon the (local newspaper) produced by the wife’s counsel to be told that in 2016, Mr D pleaded guilty in the Town A Magistrates Court to 12 charges, including theft, burglary and trafficking a drug of dependence.  He was also fined, apparently, $500 and had his licence suspended.

10. It is not satisfactory that this information has to be disclosed in this particular manner to the Court.  Furthermore, the wife suffers from a number of health issues. Paragraph 11 of her affidavit sets those out.   It says:

    I have a number of health issues which are all controlled and do not prevent me from working or being a parent.  These health issues is (1) I suffer from chronic pain my left shoulder and neck area.  The next is I also have undergo a couple of ankle reconstructions.  I've had some difficulties with my knee and lower back.  And then (3) I was also diagnosed with bipolar disorder back in 2005, and then (4) I also experience sleep issues where I either sleep for too long or too little.  I am prescribed and take Ritalin for this condition, which has improved significantly.  I'm currently working with a sleep specialist to assist me with these difficulties.

11. The wife says in paragraph 13 that the husband enjoys good health.  I note that the husband’s solicitors have issued subpoenas to the wife’s psychiatrist, Dr S, and (Health Centre) in relation to all of the members of the family.  Objection was taken to these subpoenas by the wife’s solicitors, saying that they were a fishing expedition.  In my view, this is a further indication about the wife not being particularly forthcoming about her mental health issues.

12. A further matter that is of serious concern is [Y] clearly has some serious behavioural problems. In relation to those, both parties have set these out in their affidavit material. In relation to that issue, I refer to Dr A’s letter dated 15 May 2018, where he says:

    School 2 have a strong skill set in the management of behaviourally challenging children, and it would be fair to say they have struggled to contain and engage [Y], even with male teachers.  It has been very difficult – he has been a very difficult child to parent by his mother’s account and easier, but by no means easy, in the presence of his father. 

13. Therefore, for the interim, until a family report is obtained and the wishes of the other children are ascertained, it is, in my view, in the best interests of the children that they do live with the father and spend time with the mother on the condition that Mr D is not present.  I appreciate the need for the stability of the children’s lives, especially for [Y]; however, the wife, by bringing Mr D into the former matrimonial home and in the daily contact with the children has created an unacceptable risk for the Court, a risk I will not accept until further investigations are undertaken. 

14. This is compounded by [Y]’s behaviour and health issues and the wife’s mental health issues. I specifically acknowledge that the husband has acted poorly in the context of matrimonial breakdown, but for today’s purpose, in my view, it is in the best interests of the children to remain living with the father. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 16 June 2018