Segur and Segur and Ors

[2009] FamCA 611

FAMILY COURT OF AUSTRALIA

SEGUR & SEGUR AND ORS [2009] FamCA 611

FAMILY LAW  - CHILDREN – Magellan – Interim time – Supervision

Family Law Act 1975 (Cth)

HUSBAND: Mr Segur

WIFE: Ms Segur

PATERNAL GRANDPARENTS: Mr and Mrs Segur (Snr) and Mr and Mrs Yarrow

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11159 of 2008

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 26 June, 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND AND

PATERNAL GRANDPARENTS:

Mr J.W. St John SC

SOLICITOR FOR HUSBAND AND

PATERNAL GRANDPARENTS:

MDP McDonald Partners

COUNSEL FOR THE WIFE: Ms B.A. Tulloch

SOLICITOR FOR THE WIFE: J.A. Middlemis

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms M.E. Agresta

INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That until further order and subject to paragraph (2) hereof, the husband spend time with the children of the marriage, B born … December, 1999, H born … December, 2001 and G born … July, 2005, as follows :

   (a)from 12:00 noon until 4:00 pm. on 28 June, 2009 and 5 July, 2009, such time to be spent in the Bendigo area; 

   (b)thereafter, from 9:00 am. until 6:00 pm. on each Sunday;  and

   (c)at such other times as are agreed between the parties.

2. That each period of time be supervised by two of the following people :

   (a)Mr Segur (Snr);

   (b)Mrs Segur (Snr);

   (c)Mrs Yarrow;  or

   (d)Mr Yarrow;

   and that each of the supervisors ensure that the husband spends no time alone with the children or any of them. 

3. That unless the parties agree to the contrary, the two people supervising a period of time collect the children from the wife’s home at the commencement of a period of time with the husband and return the children to the wife’s home at the conclusion of a period of time with the husband;  and the husband not be present during such changeovers. 

4. That Mr Segur (Snr), Mrs Segur (Snr), Mrs Yarrow or Mr Yarrow each have leave to intervene in the proceedings. 

5. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 23 October, 2009.

6. That the parties attend a Trial Notice Listing with the Magellan Registrar on 6 November, 2009 at 2:15 pm.  

7. That the solicitor for the husband have leave to provide a copy of the report of Dr. W dated 16 May, 2009 to the Department of Human Services. 

8. That the solicitors for the parties have leave to copy documents produced pursuant to subpoenas directed to the following entities :

   (a)     Loddon CASA;

   (b)     Bendigo Clinic;

   (c)     Centacare;

   (d)     Bendigo SOCA;  and

   (e)     Department of Human Services;

   PROVIDED THAT :

   A.a party or intervener may be shown such copy documents but not provided with a copy;  and

   B. the solicitors undertake to return all copies to the Court at the determination of the proceedings. 

9. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

10. That the reasons for judgment this day be transcribed and copies made available to the parties.

11. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11159 of 2008

MR SEGUR

Husband

And

MRS SEGUR

Wife

And

MR AND MRS SEGUR (SNR) and
MR AND MRS YARROW
Paternal grandparents

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties married in 1998 and were divorced earlier this year.  They have three daughters; B was born in December 1999, H was born in December 2001 and G was born in July 2005. 

2. Proceedings were commenced by the wife in the Federal Magistrates Court in December 2008 seeking an adjustment of property interests, sole use and occupation of the former matrimonial home and a number of consequential orders.  At that time the parties had negotiated parenting issues;  the children were living with the wife in the family home and spending time with their father overnight on one day a week and alternate weekends.

3. Affidavits filed at that time describe the complex circumstances that led to the breakdown of the marriage.  Although the parties are now divorced, their separation is still relatively recent and it is probable some of the resonances influence each party’s perception of the other.

4. The husband filed a response to that application in March 2009 in which he sought shared parental responsibility and week and weekabout residence.  He also responded to the property applications. 

5. The matter came before a federal magistrate on 27 January 2009.  A number of orders were made by consent, providing for the children to live with the wife and spend time with the husband overnight on Wednesday and on alternate weekends.  The wife was granted sole use and occupation of the home and the case was adjourned to the Bendigo circuit and directions given for a trial in Bendigo.

6. On 21 May an interim application was filed by the husband in which he sought to discharge the orders for trial and the transfer of the case to this court.  He deposed to spending time with the children in accordance with the earlier orders but of being advised by a letter from the wife's lawyer, dated 27 April, 2009, that the children would no longer be provided.  He deposed to being interviewed by police on 1 May in relation to an allegation that he had inappropriately touched B on the breast on 22 April 2009, and had touched G, the youngest child, on the vaginal area outside her clothing.

7. The matter came before Riethmuller FM on 27 May.  At that point, the wife filed a form 4 notice of child abuse and an interim response to the husband’s application.  The form 4 is on the file and everyone in court knows its contents;  I will not read it into the transcript.

8. The proceedings were transferred to this court with a request they be considered for inclusion in the Magellan list and on 28 May the Magellan registrar made orders for a report from the Department of Human Services, the subpoenaing of the DHS file and the appointment of an independent children's lawyer.

9. At this time, the husband seeks interim orders allowing him to spend time with the three children on each Sunday from 9:00 am. to 6:00 pm. and at other times agreed in writing, and that the time be supervised by either his father, Mr Segur (Snr), Mrs Segur (Snr) (who is his father's current wife), Mrs Yarrow, his mother, or Mr Yarrow (his mother's present husband).  He also sought an injunction restraining the parties from denigrating each other.  Each of the proposed supervisors has filed an affidavit confirming his or her willingness to supervise and deposing to his or her positive relationship with the children.

10. In the husband's affidavit, he denies all allegations of sexual abuse.  He describes a very close and affectionate relationship with his children, particularly with B, the older daughter.  He makes a number of allegations against the wife;  according to him, she is verbally abusive and inflexible and uncooperative about his time and communication with the children.  It is his case that the children have been exposed to her belittling and degrading allegations and behaviour.  They say they want to spend more time with him, not less.  They have been repeating denigrating statements made by their mother.  That is all denied by the wife.

11. DHS provided a report dated 21 June which says little save that police investigations had not been completed, police asked them not to interview the children in relation to the abuse allegations and DHS had not been able to contact the husband. 

12. In fact, the children have been interviewed by police in VATE taped interviews.  The protocols that operate between police and DHS would not provide for DHS workers to interview the children about the sex abuse allegations.  The whole point of that protocol is to ensure children are not subjected to repeated interviews about such allegations.  Of course, workers could meet with the children and talk about other aspects of the case with them.  However, I would not adjourn a case on the basis DHS wanted to interview children in relation to sex abuse allegations when they have been formally interviewed and the interviews VATE taped.

13. It is common ground that a member of Bendigo SOCAU sought an intervention order on behalf of the children and an intervention order was made on 6 May.  It includes the usual proviso for contact with the husband pursuant to court order. 

14. A little more material is before the court today, produced pursuant to subpoena.  A report of Dr W, dated 16 May, 2009 has been tendered.  Dr. W is a forensic paediatrician. 

15. Today I am told the husband proposes filing an amended application for final orders in which he will seek sole residence of the three girls, as well as a form 4 alleging emotional and physical abuse of the children by the wife.  Applications by the paternal grandmother and her husband, and the paternal grandfather and his wife, are before the court.  It is a moot point whether they need leave to seek time with the children, having regard to the legislation.  It has been made clear that they seek to join the proceedings on the basis they would seek to spend time with the children in the event the husband has neither residence nor unfettered contact with them.  They will be joined.

16. The wife lives in the former matrimonial home in O.  She has not repartnered.  The husband lives with Ms N and her three children in K, or did until recently.  On learning of these allegations, DHS sought an undertaking from Ms. N that she would not bring her three children into contact with the husband, with whom she was living.  She gave that undertaking.  He now lives with her in that home on the weeks her children are with their father;  on the weeks they live with her, he lives with one or other of his parents in Melbourne. 

17. The wife does not oppose a reintroduction of time between the girls and their father.  She wants that time to be supervised at Fairground, the Salvation Army contact centre in Bendigo.  There is a significant waiting list at that contact centre. Counsel for the ICL raised the potential for the centre to refuse involvement in a case which involves an allegation of sexual abuse.  Some centres take an absolute line on this.  Orders have been made for time at Fairground in Magellan cases in the past, but I certainly could not say whether they would or would not accept the family.  It is a matter for the contact centre.  The ICL is sceptical and I bear that in mind.  There is no point making an order posited on an eventuality which is ephemeral.

18. The wife submits that a contact centre is necessary because the husband was very distressed when he was arrested.  That is not unusual, but his distress has the capacity to impact on the children if it were apparent to them.  She says that while the grandparents are loving, decent and affectionate people, and she is comfortable with them spending time with the children, they are necessarily aligned with their son and will not believe it possible he could behave as alleged.  In that sense she submits they could be compromised as supervisors.  Further, whilst they are experienced parents, having brought him up and, possibly, siblings, they are not professionally trained and she submits professional supervision is necessary.

19. Reference has been made to evidence in counselling notes that B misses her father and feels guilty, not unusual emotions in a little girl who finds herself in this position.  The husband has deposed to B’s enthusiasm for spending time with him. 

20. The ICL’s submission is that in the absence of a completed report from DHS, and not knowing whether police intend to charge the husband or not, it would be premature to make any orders.  It is necessary to look at that submission in two parts.  On the evidence before me, the police investigation appears concluded.  The children and the father have been interviewed.  Sometimes years can pass before a firm decision is made as to whether a person will be charged.  With an allegation of sexual abuse, it is to be hoped that will not happen, but the court’s experience is that police members’ leave and other work can intervene.

21. DHS has not completed its report.  Workers have not spent time with the family.

22. I will say something, very briefly, about the relevant legal principles.  The law relating to children rests on two pillars. The first is the importance of maintaining meaningful relationships between children and their parents, and with other people of importance to them.  The second is the importance of protecting children against abuse and violence.  Those principles are often in conflict;  the court must balance them.

23. The paramount matter for the court is the best interests of the children, not their parents' or grandparents' wishes or desires.  As counsel for the ICL said, until a court can test and determine allegations, the court must be cautious.  At this point it cannot determine the competing allegations.  It can note each of the parties’ evidence and consider any independent evidence, but it cannot finally determine those allegations.  It must make child protection its focus.

24. When considering the case, three propositions are important.  The wife supports time with the husband, albeit supervised, as being in the children’s best interests.  Supervision at Fairgrounds could not commence for months and may not ever commence, as Fairgrounds may refuse the case.  The grandparents are described by the wife in very complimentary terms and she is happy for them to spend time with the children.

25. In this case I am not satisfied that there is likely to be any protective difference between grandparental supervision and supervision at a contact centre.  The court is a supporter of contact centres and is supportive of the work they do.  There are not enough of them but they do wonderful work.  The staff who supervise are not psychologists.  Nor are they social workers, or at least not routinely.  Their job is not to be involved in a clinical or therapeutic way with children.  Their job is to provide a safe and secure environment for children.  In this case, given what I have heard of the set of grandparents, if they do not mind being referred to in that way, I am confident that environment could be established through them.

26. It is very difficult for parents to accept that children can behave in a criminal way.  The court cannot demand that family members believe or disbelieve an account of events.  People who supervise need to realise a secondary purpose of supervision, which is to protect a person against whom an allegation has been made by stringent and scrupulous supervision.  Any lapse in supervision has the capacity to impact adversely on the alleged perpetrator of abuse, if he or she is innocent.

27. Having said that, the primary reason for supervision is to ensure the safety and security of the children, in a protective environment.  The good thing about family supervision is that children do not need to know their time with the husband is being supervised;  from their perspective, this is time with their father and their loving grandparents. 

28. If orders sought by the mother were made, or no orders made, as sought by the ICL, the children could spend an indefinite period without contact with their father, in circumstances where the wife concedes they should be seeing him.

29. On two Sundays, 28 June and 5 July, the children are to spend time with their father, supervised by at least two of the grandparents, in the Bendigo area, from 12:00 noon until 4:00 pm.  They are to be collected from the mother's home, unless another place is agreed. 

30. Thereafter, until further order, there will be contact on each Sunday between 9:00 am. and 6:00 pm.  The husband’s family may see this as unfair and unreasonable, but they are to do the driving.  The husband is the person in a position (due to the difficulties with DHS and resultant constraints on his partner) to know whether he will be living in Melbourne or K in the Bendigo area.  I accept it is a four-hour round trip from Melbourne and make that order on the basis the four grandparents are prepared to do what is necessary to protect these children and to foster their relationship with their father.  Whoever drives, the children have to travel.  In my view the children will benefit if picked up from their home, by loving grandparents, who take them either to K or Melbourne. 

31. I propose that a family report be released by 23 October.  The Loddon CASA file, the records of the Bendigo Clinic, the Centacare records in relation to B and H, the Bendigo SOCAU documents will all be released to the parties for inspection and copying, subject to two provisos.  First, copies may be shown to the parties but not given to them and, second, the solicitors undertake to return the copies to the court at the end of the proceedings for destruction.

32. In terms of the VATE tape, it cannot be copied but arrangements can be made to view it on these premises.

33. The husband's solicitor has leave to provide a copy of the report of Dr W of 16 May 2009 to DHS.

I certify that the preceding
33  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.