SEGNER & SEGNER (No.2)

[2018] FCCA 3007

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEGNER & SEGNER (No.2) [2018] FCCA 3007

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – contact between the children and the Mother’s partner – where the Mother’s partner has a history of criminal behaviour – risk to the children – limited contact allowed.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3)

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (2010) 43 Fam LR 348
Segner & Segner [2018] FCCA 1618
U v U (2002) 211 CLR 238

Applicant: MR SEGNER

Respondent: MS SEGNER

File Number: MLC 4698 of 2018

Judgment of: Her Honour Judge C E Kirton QC

Hearing date: 12 July 2018

Date of Last Submission: 12 July 2018

Delivered at: Melbourne

Delivered on: 26 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Dellidis

Solicitors for the Applicant: Caroline Counsel Family Lawyers

Counsel for the Respondent: Mr Dickson QC

Solicitors for the Respondent: J A Middlemis

PENDING FURTHER OR OTHER ORDER:

1. The Respondent be at liberty to bring [X], born 2004, [Y] born 2006 and [Z], born 2010 (Children) into contact with Mr D on:

   (a)Sundays from 8.00 am to 8.00 pm for a period of two months commencing from the date of these orders;

   (b)Saturdays and Sundays from 8.00 am to 8.00 pm commencing two months from the date of these orders;

   Provided that the Respondent at all times respects [X]’s wishes about having contact with Mr D.    

2. The Respondent be and is hereby restrained from permitting Mr D to stay overnight in her home at any time whilst the Children are living with her.

IT IS NOTED that publication of this judgment under the pseudonym Segner & Segner (No.2) 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

Introduction

1. This is a decision in relation to interim parenting proceedings concerning three children, [X], born 2004, [Y], born 2006 and [Z], born 2010 (Children).  The Applicant is the father and the Respondent is the mother of the Children.

2. This is the second occasion that an interim parenting decision has been required by the Court since the commencement of the proceeding on 2 May 2018.  The proceeding also involves claims for alteration of property interests, however property issues are not the subject of the present dispute between the parties.  Consequently these reasons for judgment do not refer to the property dispute between the parties.

Issues to be determined

1. The Court has been requested to determine a single issue.  That issue is the extent of contact that the Children should have with the Respondent’s current partner Mr D, pending the final hearing of this proceeding.

Background

1. The Applicant and the Respondent started living together in 2001.  At that time the Applicant was aged 36 and the Respondent was aged 18[1]. 

   [1] Respondent’s Affidavit, filed 25.5.18, at [4].

2. [X] was born on 2004, is aged 14 and is in year 8 at School 1.   

3. The parties married on 2005.

4. [Y] was born on 2006, is aged 12 and attends School 2 Special School, Town A.  [Y] has been diagnosed by Dr A, paediatrician with: major behavioural disturbance (meets the criteria for Oppositional Defiant Disorder as defined by DSM5); Attention Deficit Hyperactivity Disorder; an intellectual disability; Autism Spectrum Disorder; and frequent Encopresis (faecal soiling of underwear)[2].

   [2] Report Dr A, Central Victorian Child Health, dated 15 May 2018. Affidavit Respondent   filed 25.5.18, Annexure “S-1”.

5. [Z] was born on 2010, is aged 8 and is in grade 2 at School 3 Primary School, Town A.

6. The parties separated under the same roof in April 2017 and final separation took place in July 2017 when the Applicant left the matrimonial home in Town A and moved into a rented three bedroom unit in Town A.  The Respondent remained living in the former matrimonial home with the Children. 

7. In October or November 2017 the Respondent’s current partner Mr D moved into the former matrimonial home and commenced living with the Respondent and the Children.

8. Shortly after the Applicant left the former matrimonial home in July 2017 the parties agreed that the Children would spend time with the Applicant on alternate weeks from after school Thursday to the end of school Monday.  Therefore the Children spent 10 nights a fortnight with the Respondent and four nights a fortnight with the Applicant.

Procedural History

1. The Applicant commenced this proceeding for parenting and financial orders on 2 May 2018.

2. On 25 May 2018 the Respondent filed a response, affidavit in support and a notice of risk.  The Respondent’s affidavit filed on 25 May 2018 (Respondent’s First Affidavit) disclosed that the Respondent had commenced a relationship with Mr D in 2017 and that they had commenced cohabitation in 2017.  The Respondent deposed that Mr D had:

   […] 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) relating to various offences.  He was released from prison in 2017 and since I have known him the person I know and see      everyday is certainly significantly different from the person he must have been to have been involved in criminal activities[3].

   [3] Respondent’s First Affidavit, at [12].

3. The Respondent’s First Affidavit did not disclose any further information about the criminal history of Mr D.

4. On the first return date of the Applicant’s Initiating Application on 30 May 2018 both the Applicant and the Respondent were represented by experienced Counsel.  The Applicant sought interim orders that the Children live with him and that the Children’s time with the Respondent be suspended pending the recommendations of a family consultant.  The basis of this application was the disclosure made in the Respondent’s First Affidavit of Mr D’s criminal history, the Respondent’s failure to provide any particulars of that criminal history other than the fact that he had recently been incarcerated for a period of 12 months and the Respondent’s inability to cope effectively with [Y]’s increasingly difficult behaviour.  At time of the hearing on 30 May 2018, the Applicant had not returned the Children to the Respondent after they had spent time with him over the preceding weekend.  The Applicant’s application was opposed by the Respondent, who sought to maintain the status quo.

5. On 30 May 2018 I ordered by consent that the parties attend upon Ms J on 19 June 2018 for the purpose of the preparation of a family report.  Ms J was given leave to inspect all documents produced to the Court pursuant to subpoenae (which included the Victoria Police records of Mr D).  The proceeding was adjourned to 12 July 2018 for further mention when it was anticipated that Ms J’s report would be available.

6. On 30 May 2018 I also made interim orders (30 May 2018 Interim Orders) that:

   a)The Children live with the Applicant;

   b)The Children spend time with the Respondent from after school Friday until 12.00 pm Sunday each weekend;

   c)The Children’s time with the Respondent be conditional upon the Respondent not bringing Mr D into contact with the Children. 

7. The 30 May 2018 Interim Orders and the Ex Tempore Reasons for Judgment appear in Segner & Segner [2018] FCCA 1618.

8. On 26 June 2018 the Respondent filed in the Southern Appeals Registry in the Family Court of Australia Registry at Melbourne an application for leave to appeal the 30 May 2018 Interim Orders.

9. On 28 June 2018 the Respondent filed in this Court an Application in a Case returnable on 10 July 2018 (Application in a Case).  The Application in a Case was supported by an affidavit by the Respondent filed on 28 June 2018 (Respondent’s Second Affidavit).  The Application in a Case sought the following orders:

   a)A stay of the 30 May 2018 Interim Orders;

   b)That until further order:

   i)The Children live with the Respondent from after school Monday until the conclusion of school on the      following Thursday week (10 nights);

   ii)That the Children spend time with the Applicant from      after school Thursday until the commencement of school Monday in alternate weeks (4 nights);

   c)That for all school term holidays the children spend a week     about with each parent;

   d)That the further hearing of the proceeding be transferred to the next circuit of this Court at Bendigo for hearing in the duty list.

10. It seems that the Application in a Case then became listed for 12 July 2018, being the adjourned date of this proceeding. 

11. The family report prepared by Ms J, dated 11 July 2018 (Family Report), became available to the parties on 11 July 2018[4].  In Ms J’s opinion the Children should not be separated, a shared care arrangement is not appropriate and the Children should continue to live with Mr Segner[5]. 

    [4] The Family Report has subsequently been filed as Annexure “J-1” to the Affidavit of Ms J,          filed 24 July 2018.

    [5] Family Report, at [116]-[118].

12. On 12 July 2018 at the adjourned mention date of this proceeding the Respondent was represented by Senior Counsel and the Applicant by experienced Junior Counsel.  The parties made a copy of the Family Report available to the Court.  The parties having had the benefit of reading the Family Report, were able to agree upon interim parenting consent orders.  The agreed living arrangements, time spent arrangements and school holiday arrangements follow the recommendations of the Family Report[6].   As a result on 12 July 2018 I made interim parenting orders by consent (Interim Consent Orders) which are summarised as follows:

    [6] Family Report, at [119]-[125].

    a)All previous parenting orders be discharged;

    b)The parties have equal shared parental responsibility for the Children;

    c)The Children live with the Respondent:

    i)Each alternate week from after school Thursday to the start of school Monday commencing 12 July 2018 (4 nights);

    ii)Each other alternate week from after school Thursday to the start of school Friday commencing 19 July 2018 (1 night);

    iii)For one half of all school holidays, being the second half commencing September 2018;

    iv)Specified special occasion times.

    d)i)      The Children live with the Applicant at all other times;

    ii)      Specified special occasion times.

    e)The parties to forthwith obtain a Mental Healthcare Plan for the purpose of [X] attending a counsellor.    

    f)Each party attend and complete a Post Separation Parenting Program and provide evidence of completion as soon as practicable.

    g)The parties to commence using Our Family Wizard application on their mobile devices for communication relating to the Children.

    h)Each party promptly advise the other of any medical or other professional appointments for the Children and facilitate conjoint attendance at appointments.

    i)The Applicant to provide contact details of the psychologist and other mental health professional(s) upon whom he has attended in the past 12 months.

    j)All interim applications be dismissed.

13. The Interim Consent Orders also included a notation that the Respondent intended to file a Notice of Discontinuance of Appeal No. SOA46 of 2018 and that neither party would pursue any issue of costs of that proceeding.

14. On 12 July 2018 I also ordered, at the request of the parties, that the proceeding be adjourned to the Bendigo sittings of the Court commencing on 26 November 2018.

The proposals of the parties

1. On 12 July 2018 the parties were unable to agree on the extent of contact that Mr D should have with the Children pending the final hearing of this matter.  A minute of proposed orders was submitted with suggested orders on behalf of each of the Applicant and the Respondent.  The parties’ Counsel  also addressed the proposed orders in submissions.

The Applicant’s proposal

1. The Applicant proposed the following order (Applicant’s Proposal):

   The [Respondent] be at liberty to bring the children into contact with Mr D on Saturdays until 12/9/18 and then on Saturdays   and Sundays during the day and shall otherwise respect [X]’s wishes as to his presence.  Mr D shall not be permitted to stay overnight at the Respondent’s home whilst the children are staying there.

2. The Applicant’s Proposal reflects the recommendations made by Ms J in the Family Report[7].

   [7] Family Report, at [118].

   The Respondent’s proposal

3. The Respondent proposed the following order (Respondent’s Proposal):

   The [Respondent] shall have proper regard to the children’s wishes (including [X]) as to Mr D’s presence in her home during her time with the children.

4. The Court has been requested by the parties to determine the single issue of the extent of contact that Mr D should have with the Children pending the final hearing of this proceeding.  I now turn to consider this matter.

The Law

1. The Court in determining this application has to consider what orders are in the Children’s best interests: s.60CA Family Law Act 1975 (Cth) (Act). In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant, must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.

2. The Court is not bound by the parties’ respective proposals (AMS v AIF[8]  and U v U[9]). 

   [8] (1999) 199 CLR 160.

   [9] (2002) 211 CLR 238; [2002] HCA 36.

3. In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).

4. The Full Court in Goode v Goode[10] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[11].  It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[12].

   [10] (2006) 36 Fam LR 422.

   [11] Ibid., 445, at [81]-[82].

   [12] Ibid., 445, at [82].

5. In Marvel v Marvel[13] the Full Court made the following obiter comments:

   As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing….[14]

[13] (2010) 43 Fam LR 348.

[14] Ibid., at [120].

1. In Keats & Keats[15] the Full Court held in respect of interim proceedings:

   […] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.[16]

   [15] [2016] FamCAFC 156.

   [16] Ibid., at [9].

2. An interim hearing is therefore by its very nature a curtailed hearing.  Evidence is limited and the matter is decided on the papers.

3. I will first consider the primary considerations of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. The Interim Consent Orders provide that the Applicant and the Respondent have equal shared parental responsibility for the Children. They also provide for the Children to live with the Applicant 9 nights in a fortnight and the Respondent 5 nights.

2. Ms J in her observations in the Family Resort concludes that the Children appeared to have warm and close relationships with the Applicant and the Respondent[17].   

   [17] Affidavit Ms J, 24.7.18, Annexure “J-1” at [102].

3. This is qualified by Ms J’s observations in relation to [X] and his relationship with the Respondent.  A situation has arisen where [X] is angry at his mother as he believes that she was not truthful with him about the circumstances which led to Mr D going to live in the former matrimonial home[18]. This issue is discussed in relation s.60CC(3)(a) of the Act.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

[18] Ibid., at [73].

1. One of the significant issues in this proceeding is the assessment of risk to the Children if they spend time with Mr D, particularly unsupervised time.  A continuing difficulty in assessing this risk has been the lack of information provided by the Respondent about Mr D.

2. As noted in Segner & Segner[19] the Applicant’s solicitors sent a letter dated 9 February 2018 to the Respondent’s solicitors requesting information about Mr D and in particular whether he had any criminal convictions or whether he had any children of his own.  The only substantive response to this correspondence was information from the Respondent’s solicitors that Mr D was employed part time as a (occupation omitted).  It was not until receipt of the Respondent’s First Affidavit that the Applicant became aware that Mr D had a criminal record.  The Respondent’s First Affidavit did not disclose any further information about the criminal history of Mr D, apart from the fact that he had recently been incarcerated for a period of 12 months.

   [19] [2018] FCCA 1618, at [4]-[6].

3. At the interim hearing on 12 July 2018 the Victoria Police court outcomes report (Court Report) and LEAP incident summary report (Incident Summary Report) relating to Mr D were admitted into evidence, having been produced pursuant to a subpoena issued by the Applicant’s solicitors.  These documents record that Mr D was born on 1989 and is therefore presently 29 years of age.

4. The Court Report records that Mr D’s first court appearance took place in the Town A Children’s Court on 2005 when he was 16.  The offence was burglary.  He was placed on probation for 12 months to 2006 (Probation Order), without conviction.  It was a condition of the Probation Order that he undergo assessment and counselling for drug and or alcohol counselling.  There were two court appearances at the Town B Children’s Court during the probation period.  The first was on 2006 for carrying a controlled weapon without excuse and being drunk in a public place.  Mr D was fined $200 without conviction.  The second was on 2006 for breach of probation, burglary and handle/receive/dispose of stolen goods. Mr D was fined $200 without conviction.

5. On 2009 at the age of 20 Mr D appeared in the Town C Children’s Court charged with theft of a motor vehicle, unlicensed driving and going equipped to steal/cheat.  He was fined $300 without conviction.

6. On 2010 Mr D was convicted in the Town C Magistrates Court of driving a motor vehicle without permit, assaulting police and exceeding the prescribed concentration of alcohol whilst driving a vehicle. Mr D was placed on a Community Based Order for 12 months (Community Based Order) and ordered to perform 25 hours unpaid community service.  He was also ordered to undergo assessment for alcohol/drug addiction or submit to medical/psychological or psychiatric assessment and treatment as directed by the Regional Manager of the Town C Community Corrections Centre.  He was further ordered to undergo assessment for programs to reduce re-offending and participate in such programs as directed by a Community Corrections Office.  He was also disqualified from driving for 6 months.

1. On 2010 whilst subject to the Community Based Order Mr D was convicted in the Town C Magistrates Court of assaulting police and resisting arrest.  He was fined $750.

2. On 2016 Mr D, then aged 27 was convicted in the Town A Magistrates Court of the following offences: theft of caravan; theft; burglary; commit an indictable offence whilst on bail; contravene a condition of bail; possession of a weapon without exemption/approval; carry dangerous article in public place; traffic ecstasy (MDMA/MDA/MDEA/MDA’s); Learner driver driving vehicle without experienced driver; drive without “L” plated displayed; use unregistered motor vehicle; fraudulently use registration label.  Mr D was sentenced to a term of imprisonment of 18 months with 208 days of the time held in custody reckoned as a period of imprisonment already served.  The non-parole period was fixed at 9 months.  He was also fined $500, had his licence cancelled and was disqualified from driving for 6 months effective from 2016.  

3. Senior Counsel for the Respondent described Mr D’s criminal history as an unfortunate history of an immature man.  He submitted that any risk that Mr D may pose to the Children had not been identified. 

4. Mr D’s criminal history reveals in my opinion a long period of recidivism spanning from adolescence into adulthood.  The history reveals that he has twice been placed on non-custodial rehabilitative sentences.  The first was the Probation Order on 2005 which included the requirement that he undergo assessment and counselling for drug and or alcohol counselling.  The second was the Community Based Order on 2010 which included conditions of being assessed and undertaking drug and alcohol treatment, submitting to psychiatric or psychological assessments and undertaking programs to reduce reoffending.  These opportunities given to Mr D to undertake rehabilitative programs did not have the desired effect because in 2016 he committed many more serious offences.  Notwithstanding a period of some five years, Mr D relapsed into more serious offending which included a conviction for trafficking ecstasy.  At the time that Mr D committed his most recent offences he was a mature man in his mid 20’s, not an adolescent.  On the information presently before the Court it is not known whether the thefts, burglaries and breaching conditions of bail were the result of an out of control drug addiction or whether it was, as Mr D has explained to Ms J, that he got involved with the wrong crowd.  

5. It is a matter of concern that based on prior history it is possible that the Children that will be exposed to Mr D relapsing again into drug use. I identify this specifically as a risk to the Children contemplated by s.60CC(2)(b), particularly if the Children are left with Mr D unsupervised by the Respondent for extended periods of time.

6. Mr D told Ms J that after being imprisoned for 12 months he had:

   […]  four months intense parole, he had to do weekly drug screens which were all clear; he also did drug and alcohol counselling.  He said that he was released on 2017 and he has been behaving since […][20]

   [20] Family Report, at [61].

7. A further matter of concern is Mr D’s degree of disclosure about his prior criminal history.  Ms J has concluded that:

   […] Mr D tried to minimise his criminal activities, he did not appear to show remorse but tried to brush over his criminal history without taking responsibility[21].

   [21] Family Report, at [110].

8. Similarly concerning is the Respondent’s past behaviour.  Ms J has reported:

   Ms Segner did not know all of Mr D’s convictions and she also appeared to minimise his criminal history…Ms Segner also seemed to place the three children in circumstances where she was not cognitive of all the information and took the word of Mr D … Ms Segner did not know that one of Mr D’s charges for which he was convicted was trafficking ecstasy nor did she know what illicit drugs he has used. This in itself is very serious considering she allowed Mr D to move in with herself and the three children. It is my view that Ms Segner placed the three children at potential risk by not taking the responsibility to find out more about Mr D [22].

   […] Ms Segner was not guarded when she allowed Mr D to become involved in her life and subsequently the children’s lives[23].         

   [22] Loc. Cit.

   [23] Family Report, at [115].

9. The Family Report also revealed that Mr D has three children of his own.  [A] aged 10, [B] aged 8 and [C] aged 6.  These children live with Mr D’s mother in Town D.  Ms J records that Mr D told her that the children’s mother had a “colourful” past, that she had re-partnered with a violent person and that was why the children could not live with her.  Mr D told Ms J that the children stay with him on alternate weekends or he goes to his mother’s place during school holidays.  Mr D said that child protection were involved and placed the children with his mother following Court.  Mr D said that the children cannot stay overnight at the moment as Ms Segner has her children every weekend.

10. Ms J reports:

    Mr D did not know (or did not want to say, just describing his former partner as having a ‘colourful past’) how his children   came to be living with his mother apart from child protection being involved.  It is my view that Mr D should obtain information for this Court about his children’s experiences[24].

    [24] Family Report, at [110].

11. Counsel for the Applicant submitted that in circumstances where on 30 May 2018 at the first interim hearing the Respondent was criticised for her lack of transparency about Mr D, it was extraordinary that the Respondent had not put in admissible form proper evidence about Mr D’s personal circumstances.  The Respondent had failed to even mention the fact that Mr D had three children of his own who do not live with him or provide any explanation as to why they do not live with him.  Counsel for the Applicant submitted that there was no information from Mr D personally.  He had not filed an affidavit outlining his personal circumstances and the only information available was what he had told Ms J. 

12. It was submitted by Counsel for the Applicant that the Court should have doubt about what Mr D had told Ms J.  It was contended that there appeared to have been no contact previously between the parties’ children and Mr D’s children.  Mr D’s children are not referred to in either the Respondent’s First Affidavit or the Respondent’s Second Affidavit.  There was no mention of the children ever being in the Respondent’s house at any time.  The Children make no reference to Mr D’s children and there is no suggestion that they even know that they exist. It was submitted that the assertion by Mr D that he has alternate weekend contact with his children but at the moment the children cannot stay overnight as Ms Segner has her children every weekend[25] ought to be the subject of some significant doubt by the Court.

    [25] Family Report, at [60].

13. I agree with the submissions made by Counsel for the Applicant.  There is an omission in the Respondent’s evidence and also a failure to produce an affidavit from Mr D deposing to his personal circumstances.  I also agree that the circumstances as to why Mr D’s own children are not living with him require further information and that the account given to Ms J is questionable on the basis of the evidence presently before me.

14. Senior Counsel for the Respondent submitted that none of Mr D’s convictions involved anything to do with children and none involved sexual offences.  It was submitted that there was no suggestion of any short temper with the Children, no risk of any violence towards the Children or towards the Respondent.      

15. There have been no known incidents between Mr D and the Children or the Respondent.  Nor has Mr D been convicted of a sexual offence.  However, Mr D has been involved with his previous partner in incidents of domestic violence which have required police intervention.

16. The Incident Summary Report records that an intervention order was taken out against Mr D on 7 February 2006.  The conviction in the Town C Magistrates Court on 2010 for assaulting police and resisting arrest arose from an incident involving domestic violence on 2010.   The Incident Summary Report records a Family Violence Report dated 2010.  This incident occurred within 4 months of Mr D being placed on the Community Based Order.  The incident required the police to attend at the premises that Mr D was sharing with the mother of his children following a domestic dispute.  The neighbours had called the police.  His partner was at that time 6 months pregnant and they had a two year old child who was present at the time of the incident.  Mr D is recorded as having been drinking heavily and being verbally aggressive to his partner.  It is recorded that Mr D pulled his partner’s top down in front of police and exposed parts of her breasts.  It is also recorded that Mr D abused his partner verbally in front of the police in a manner that was humiliating and demeaning to her.  Mr D violently resisted arrest and had to be subdued with OC foam before being removed from the premises.

17. This incident demonstrates Mr D has a recorded police history of domestic abuse towards women in the presence of children when affected by alcohol.  

18. Counsel for the Applicant submitted that unless there is:

    a)Proper evidence about Mr D’s rehabilitation;

    b)Proper evidence about what protective concerns    existed or may still exit with respect to the care of Mr D’s own children; and

    c)Evidence from Mr D of some demonstration of insight and responsibility for his criminal history;

    Mr D’s contact with the Children should be limited and defined.

19. It was further submitted by Counsel for the Applicant that to leave Mr D’s contact with the Children at large, as proposed by the Respondent and subject to her discretion and to her judgment about what was in accordance with the Children’s wishes, was not appropriate.  It was submitted that this was because the Respondent’s judgment and insight was in doubt.  Counsel for the Applicant relied upon Ms J recording the Respondent as having minimised Mr D’s criminal history, not having properly informed herself and not being properly guarded about introducing a man, who she knew very little about and whom she knew for a very short time, into her house with three boys, who had just experienced their father vacating the property.  The Applicant moved out of the house in in July 2017 and Mr D had moved in by end 2017.

20. I agree with each of the submissions of Counsel for the Applicant. In the context of the considerations required in s. 60CC(2)(b) of the Act the proposal put by the Applicant is preferable.

21. The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The views of the Children in relation to Mr D are referred to in the Family Report.

2. [X] is angry at his mother as he believes that she was not truthful with him about the circumstances which led to Mr D going to live in the former matrimonial home[26].  [X] said:

   Mum lied to me about that.  She said he was having issues with his roommates[27].

   If Mum and Mr D had told me initially about his going to jail, and now he has changed but didn’t, they lied[28].

   [26] Family Report., at [73].

   [27] Ibid., at [72].

   [28] Ibid., at [78].

3. Ms J described [X] as presenting as a thoughtful, sensitive and caring young adolescent.  [X] expressed the view to Ms J that since discovering that Mr D was in prison, he no longer feels safe with him. [X] has expressed the clear view that:

   I wouldn’t mind seeing him.  I just don’t want him living in the      house[29].    

   [29] Ibid., at [72]. See also [76], [77] and [78].

4. In Ms J’s opinion:

   […] It may take [X] some time to overcome his hurt feelings about being lied to and the trauma he experienced at the sudden move to Mr Segner’s house then discovering that it was about Mr D’s criminal history.  Ms Segner needs to be mindful that it may also take [X] some time to feel he can trust her again. [X] is at a vulnerable age and stage of development just moving into adolescence so he needs to be listened to and his feelings acknowledged.

5. Ms J has recommended that, assuming other concerns regarding Mr D are satisfied, that he should be gradually re-introduced to the Children. It is suggested that this occur initially on the Saturdays that the Children are with the Respondent and then after two months also on Sundays. It is also suggested that at some stage after about six months this could be increased to overnight times, however [X] may need to have the choice of whether he stays at the Respondent’s home if he does not want to stay overnight there with Mr D [31]. The Applicant’s Proposal is based upon this recommendation.

   [31] Family Report, at [118].

6. In Ms J’s opinion [Y] does not have the maturity or the ability to make an informed decision on the matters the subject of the proceeding [32]. Ms J was also of the opinion that [Z] does not have the maturity to have an informed view on relevant matters[33].

   [32] Ibid., at [104] and [116].

   [33] Ibid., at [106].

7. It was submitted by Senior Counsel for the Respondent that the Applicant’s Proposal was a further attempt to control the Respondent by requiring Mr D to vacate the house five nights in a fortnight.  In my opinion this submission ignores the views expressed by [X].  [X]’s views have been independently verified by Ms J and the Family Report recommend that his views are taken into account and acted upon at this point in time.  In my opinion this submission by Senior Counsel reflects the Respondent’s preoccupation with her own interests rather than prioritising the interests of [X].  

8. In the context of the considerations required in s.60CC(3)(a) of the Act, the proposal put by the Applicant is preferable as it caters for the views expressed by [X].

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or    other relative of the child);

(i)         each of the child’s parents

1. I refer to and repeat paragraphs 39 to 41 in relation to the Children.  In relation to [X]’s present relationship with the Respondent, I refer to and repeat paragraphs 70 to 75.

   (ii)other persons (including any grandparent or other relative of               the child)

2. The only issue for determination is the extent of contact the Children should have with Mr D.  [X]’s views in relation to Mr D are set out in paragraphs 70 to 75.

3. In relation to [Y], Ms J reported that when questioned about Mr D’s positive attributes, the response was Getting better Pokemon than him.    When asked if there were any not so good aspects about Mr D, the response was Getting a lot new Pokemon that I don’t have[34]. 

   [34] Family Report, at [84].

4. In relation to [Z], Ms J reported that when questioned about Mr D’s attributes, the response was He’s really funny.  He’s also really nice.  [Z] did not identify any not so good aspects about Mr D when asked[35].

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

[35] Ibid.. at [95].

(i)         to participate in making decisions about major    long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child;

1. For the purposes of this interim single issue decision this is not a relevant consideration.

Section 60CC(3)(ca) the extent to which each of the child’s parent’s has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. For the purposes of this interim single issue decision this is not a relevant consideration.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)    any other child, or other person (including any    grandparent or other relative of the child) with   whom he or she has been living;

1. either of his or her parents

1. For the purposes of this interim single issue decision this is not a relevant consideration.

   (ii)    any other child, or other person (including any grandparent or   other relative of the child) with whom he or she has been living

2. The only issue for determination is the extent of contact the Children should have with Mr D.  [X]’s views in relation to Mr D are set out in paragraphs 70 to 75.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. For the purposes of this interim single issue decision this is not a relevant consideration.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parent’s; and

(ii)    any other person (including any grandparent or   other relative of the child); 

To provide for the needs of the child, including the    emotional and intellectual needs;

(i)         each of the child’s parent’s

1. In this case the judgment of the Respondent has been brought into question.  Ms J has described the Respondent as not being guarded when she allowed Mr D to become involved in her life and subsequently the children’s lives[36].  I refer to and adopt my reasons in paragraphs 55, 58, 59, 60, 66 and 70 to 75.

   [36] Family Report, at [115].

2. Conversely, Ms J has concluded that:

   Mr Segner acted appropriately when he became aware of the possibility of risk[37].   

   [37] Ibid., at [115].

3. I agree with this assessment. In considering the Applicant’s Proposal and the Respondent’s Proposal in the context of s.60CC(3)(f)(i) the Applicant’s Proposal more satisfactorily caters to the protective needs of the Children. It also caters to the present emotional needs of [X].

   (ii)    any other person (including any grandparent or   other relative of the child)

4. There is limited evidence in relation to capacity of Mr D to provide for the needs of the Children, including their emotional and intellectual needs.  Mr D has not filed an affidavit in this proceeding.  I refer to and adopt my reasons in paragraphs 42 to 66.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions ) of the child and of either of the child’s parents, and any other characteristics of the that the court thinks are relevant;

1. [X] is aged 14, [Y] is aged 12 and [Z] is aged 8.  [Y] has been diagnosed with major behavioural disturbance, Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder and an intellectual disability.  Any relevant factors have been discussed elsewhere in these reasons.

Section 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait   Islander child:

(i)         the child’s right to enjoy his or her Aboriginal or    Torres Strait Islander culture (including the   right to enjoy that culture with other people who   share that culture); and   

(ii)    the likely impact any proposed parenting order    under this Part will have on that right;

1. This is not a relevant consideration.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I refer to and adopt my reasons in paragraphs 86 to 88.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. The Applicant has deposed that on 9 January 2018, he was served with an Interim Family Violence Intervention Order which listed the Respondent as the affected family member[38].  The Applicant was also served with an Application and Summons for an Intervention Order.[39] The Applicant further deposed that on 31 January 2018 he attended the Magistrates Court of Victoria at Town A with legal representation and consented to a Family Violence Intervention Order of one year’s duration without admission (Intervention Order)[40].  A copy of the Intervention Order is annexed to the Initiating Application.  The Intervention Order expires on 30 January 2019.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the   child or a member of the child’s family – any relevant   inferences that can be drawn from the order, taking   into account the following

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the    order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter;

[38] Affidavit Applicant, filed 2.5.18, at [57].

[39] Affidavit Applicant, filed 2.5.18, Annexure “S-1”.

[40] Ibid., at [58].

(i) – (v) above  

1. It is noted that the Application and Summons for an Interim Intervention Order[41], dated 8 January 2018 contained allegations by the Respondent that the Applicant had engaged in constant bulling and controlling behaviour. 

   [41] Affidavit Applicant, filed 2.5.18, Annexure “S-1”.

2. The Applicant has said:

   [The Respondent’s] Application for an Intervention Order contains allegations of family violence.  I do not admit the allegations.  I have not been controlling of [the Respondent] in any way[42].

   [42] Ibid., at [61].

3. In this proceeding, the Respondent in her First Affidavit alleges that the Applicant was frequently verbally abusive to me throughout the period of cohabitation[43].  In the Respondent’s Second Affidavit the Respondent said:

   I have however been living in extremely controlling and emotionally abusive relationship for many years and if I have not been      forthcoming with information as I should have been that is because over the years I have learnt that [the Applicant] will use any information or opportunity to abuse and control me[44].  

   [43] Respondent’s First Affidavit, at [15].

   [44] Respondent’s Second Affidavit, at [12].

4. As the Intervention Order was obtained on the basis of the Applicant consenting to the order without admissions, there were no findings of fact made by the Magistrates Court of Victoria at Town A in relation to any of the circumstances leading to the making of the Intervention Order.

5. Before this Court are contested allegations made by the Respondent against the Applicant in relation to bullying and control.  It is not possible for the Court to form a concluded view on this matter on an interlocutory basis on affidavits and without cross examination.

6. These allegations of bullying and control have continued in the context of this interim hearing.  As set out above, it was submitted by Senior Counsel for the Respondent that the Applicant’s Proposal was a further attempt to control the Respondent by requiring Mr D to vacate the Respondent’s home five nights in a fortnight. 

7. I have previously indicated that in my opinion this submission fails to properly take into account the views expressed by [X].  [X]’s views have been independently verified by Ms J and the Family Report recommend that [X]’s views are taken into account and acted upon at this point in time.  In my opinion this submission by Senior Counsel reflects the Respondent’s preoccupation with her own interests rather than prioritising the interests of [X]. 

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. Counsel for the Applicant submitted that the Applicant’s Proposal provided clear boundaries and expectations for [X] and does not put him in the centre of the adult dispute.  It was submitted that Ms J had identified that a critical difficulty in this case was the lack of communication and high conflict between the parties. It was contended that it would be placing an inappropriate burden on [X] with being the focus point for the dispute about Mr D.  It would invariably lead to disagreement between the parents.

2. I accept this submission.  In accepting this submission I note that Ms J has reported:

   Mr and Ms Segner need to minimise their conflict as this has the      potential to affect the children[45].    

   I also note that Ms Segner has described [X] to Ms J as being a child who does not like conflict and the child most affected by the separation[46].  I also refer to and adopt my reasons in paragraphs 70 to 75.

   [45] Family Report., at [113].

   [46] Ibid., at [55].

3. In my opinion the Respondent’s Proposal will have a real prospect of leading to further conflict between the parties in relation to what [X]’s wishes are in relation to Mr D on a week by week basis.   Conversely the Applicant’s proposal is defined and provides clear expectations for both the Children and the adults.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

1. Counsel for the Applicant submitted that the Applicant’s Proposal provides clear expectations for the Children.  It was submitted that in particular it provides certainty for [Y], who doesn’t cope with change and who needs clear boundaries and expectations.

2. Ms J reports that:

   From the sensory report by Ms D, dated 23 October 2017, it appeared that [Y] does not manage changes in his routines or plans or his expectations as such circumstances may result in [Y] becoming heightened or overwhelmed which leads to [Y] becoming aggressive, verbally and physically[47].

   [47] Ibid., at [88].

3. I accept these submissions in relation to [Y].

Considerations and Conclusion

1. In considering this interim decision, I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[48].

   [48] (2010) 43 Fam LR 348, at [120].

2. I have followed the legislative pathway as require by Goode v Goode[49], to the extent that I have been able, given that this is an interim case and a single issue decision.

   [49] (2006) 36 Fam LR 422, 445, at [81]-[82].

3. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein and my consideration of the s.60CC factors I determine that the Applicant’s Proposal is in the best interests of the Children.

4. I propose however to amend the Applicant’s Proposal in respect of two matters.

5. Firstly, Senior Counsel for the Respondent submitted that in the event that the Court was to make orders in accordance with the Applicant’s Proposal, the time spent by Mr D with the Children should be initially on a Sunday instead of a Saturday.  This was because Mr D works six days a week from Monday to Saturday inclusive. Therefore to accommodate Mr D’s working arrangements, his time with the Children will commence on Sundays instead of Saturdays.

6. Secondly, to provide clarity and certainty to the orders and to avoid any further disputes between the parties, I have included times that Mr D may be at the Respondent’s home.   I have also made it clear in the orders that Mr D is restrained from remaining overnight at the Respondent’s home whilst the Children are living with her. 

7. I have made orders accordingly.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 26 October 2018

[30] Ibid., at [103].