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:

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.
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

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.
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

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

The Applicant and the Respondent started living together in 2001. At that time the Applicant was aged 36 and the…

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 & SEGNER (No.2)

Details

AGLC: Segner and Segner (No.2) [2018] FCCA 3007
Case: [2018] FCCA 3007
Decision Date: 26 October 2018

CaseChat Overview and Summary

In the matter of *SEGNER & SEGNER (No.2)*, the Honourable C E Kirton QC J of the Supreme Court of Queensland considered an application by the applicants, Mr and Mrs Segner, for an order that certain proceedings be stayed. The dispute concerned an application for an order for possession of land and mesne profits, brought by the respondents against the applicants.

The primary legal issue before the Court was whether the applicants had established a sufficient basis to warrant a stay of the possession proceedings. Specifically, the Court had to determine if the applicants' claim that they had a right to remain in possession of the land, based on an alleged oral agreement, was sufficiently arguable to justify delaying the respondents' claim for possession.

His Honour considered the principles governing applications for a stay of proceedings, particularly where a party asserts an equitable right or a defence that requires further investigation. The Court noted that a stay is an exceptional remedy and requires a strong case to be made out. In this instance, the applicants' claim rested on an alleged oral agreement that was not clearly established and lacked corroborating evidence. The Court found that the applicants had not demonstrated a serious question to be tried in relation to their alleged right to remain in possession, nor had they shown that the balance of convenience favoured granting a stay.

Consequently, the Court dismissed the application for a stay of proceedings.

Orders