HAGANS & HAGANS

Case [2020] FCCA 943

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGANS & HAGANS [2020] FCCA 943
Catchwords:
FAMILY LAW – Interim parenting orders – where parties have good communication – where allegations of illicit drug use by one party – where use of illicit drugs historical – where neither party seeks equal time arrangement – where equal parental responsibility ordered – where substantial and significant time not appropriate – where incremental increase in father’s time appropriate.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 65DAE

Cases cited:

A & A & The Child Representative [1998] FamCA 25
M & M (1998) 166 CLR 69
Goode & Goode [2006] FamCA 1346
Napier & Hepburn [2006] FamCA 1316
Johnson & Page [2007] FamCA 1235
Taylor & Barker [2007] FamCA 1246
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
MRR & GR (2010) 240 CLR 461
SS & AH [2010] FamCAFC 13
Marvel & Marvel [2010] FamCAFC 101
Dieter & Dieter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Bondelmonte & Bondelmonte [2017] 259 CLR 662
Grella & Jamieson [2017] FamCAFC 21

Franklyn & Franklyn [2019] FamCAFC 256
Applicant: MR HAGANS
Respondent: MS HAGANS
File Number: SYC 3076 of 2018
Judgment of: Judge Morley
Hearing date: 18 February 2020
Date of Last Submission: 9 April 2020
Delivered at: Sydney
Delivered on: 3 June 2020

REPRESENTATION

Counsel for the Applicant: Dr Barnett
Solicitors for the Applicant: Pearson Emerson Meyer Family Lawyers
Counsel for the Respondent: Ms Spain
Solicitors for the Respondent: Newnhams Solicitors

ORDERS

THAT PENDING FURTHER ORDERS THE COURT ORDERS:

  1. That all previous interim parenting orders are vacated;

  2. That the parties have equal shared parental responsibility for their child X, born in 2015;

  3. That X live with her mother;

  4. That X spend time with her father as agreed between the parties, and, failing agreement, until 30 September 2020:

    (a)Each Wednesday from 3.30PM until Thursday at 8.00PM;

    (b)Each alternate weekend from 5.00PM on Friday until 4.30PM on Sunday, commencing on the weekend X is next due to spend time with her father pursuant to the orders made on 15 August 2018;

  5. That the father spend time with X as agreed between the parties and, failing agreement, from 1 October 2020 until X commences school attendance in 2021:

    (a)Each Wednesday from 3.30PM until Thursday at 8.00AM;

    (b)Each alternate weekend from 5.00PM on Friday until 8.00AM on Monday, or 3.30PM on Monday if the Monday is a public holiday, including bank holidays, maintaining the same pattern of weekends as provided for in order 4(b);

  6. That X spend time with her father as agreed between the parties and, failing agreement, from when X commences school in 2021:

    (a)During school term time, each Wednesday from the end of school until Thursday at the start of school;

    (b)During school term time, each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30PM on Monday, if a public holiday including bank holiday, commencing on the second weekend of term…

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AGLC
HAGANS & HAGANS [2020] FCCA 943
Case
[2020] FCCA 943
Decision Date

CaseChat Overview and Summary

In *Hagans & Hagans*, heard by Judge Morley, the dispute concerned interim parenting orders for the parties' child, X. The parents had good communication, and while allegations of illicit drug use by one party were raised, this use was historical. Neither party sought an equal time arrangement for X.

The court was required to determine the appropriate interim parenting orders, specifically addressing issues of parental responsibility and the allocation of time X would spend with each parent. The court also needed to consider the impact of historical drug use allegations on the assessment of risk to the child.

Judge Morley ordered that the parties have equal shared parental responsibility for X. The court found that an arrangement where X lived with her mother and spent substantial and significant time with her father was not appropriate in the interim. Instead, an incremental increase in the father's time with X was deemed appropriate, reflecting the historical nature of the drug use allegations and the parties' generally good communication. The court vacated all previous interim parenting orders and established a detailed schedule for X's time with each parent, including provisions for holidays and special days, and orders regarding communication and the protection of X from derogatory comments.

Orders

Orders of the court

THAT PENDING FURTHER ORDERS THE COURT ORDERS:

1.

That all previous interim parenting orders are vacated;

2.

That the parties have equal shared parental responsibility for their child X, born in 2015;

3.

That X live with her mother;

4.

That X spend time with her father as agreed between the parties, and, failing agreement, until 30 September 2020:

(a) Each Wednesday from 3.30PM until Thursday at 8.00PM;

(b) Each alternate weekend from 5.00PM on Friday until 4.30PM on Sunday, commencing on the weekend X is next due to spend time with her father pursuant to the orders made on 15 August 2018;

5.

That the father spend time with X as agreed between the parties and, failing agreement, from 1 October 2020 until X commences school attendance in 2021:

(a) Each Wednesday from 3.30PM until Thursday at 8.00AM;

(b) Each alternate weekend from 5.00PM on Friday until 8.00AM on Monday, or 3.30PM on Monday if the Monday is a public holiday, including bank holidays, maintaining the same pattern of weekends as provided for in order 4(b);

6.

That X spend time with her father as agreed between the parties and, failing agreement, from when X commences school in 2021:

(a) During school term time, each Wednesday from the end of school until Thursday at the start of school;

(b) During school term time, each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30PM on Monday, if a public holiday including bank holiday, commencing on the second weekend of term 1 in 2021;

(c) For the first week of the school holidays at the end of terms 1, 2 and 3, from 9.00AM on the first Sunday of the school holidays until 9.00AM on the second Sunday of the school holidays;

(d) During the school holidays at the end of term 4. from 9.00AM on the first Sunday of the school holidays until 9.00AM on the following Sunday, and each alternate week thereafter during the said school holidays; and

(e) The father’s time with X pursuant to order 6(b) will resume on the first weekend after the start of each school term.

7.

That notwithstanding any other order:

(a) That X spend time with her father from 8.00AM on Easter Thursday until 5.00PM on Easter Saturday in even numbered years and from 5.00PM on Easter Saturday until 5.00PM on Easter Monday in odd-numbered years;

(b) That X live with her mother from 8.00AM on Easter Thursday until 5.00PM on Easter Saturday in odd-numbered years and from 5.00PM on Easter Saturday until 5.00PM on Easter Monday in even-numbered years;

(c) That X spend time with her father on the Father’s Day weekend from 5.00PM on the Saturday until 5.00PM on Father’s Day each year;

(d) That X live with her mother on the Mother’s Day weekend from 5.00PM on the Saturday until 5.00PM on Mother’s Day each year;

(e) That X spend time with her father from 11.00AM on 24 December until 11.00AM on 25 December in even-numbered years, and from 11.00AM on 25 December until 5.00PM on 27 December in odd-numbered years;

(f) That X live with her mother from 11.00AM on 24 December until 11.00AM on 25 December in odd-numbered years and from 11.00AM on 25 December until 5.00PM on 27 December in even-numbered years;

(g) That X live with or spend time with the parent with whom she is not living on her birthday, each year from 3.30PM until 6.15PM if it is a childcare/school day and from 8.00AM to 1.30PM if her birthday falls on a weekend or day on which X is not attending childcare/school;

(h) That X live with her mother on her mother’s birthday, each year, in the event that X is not living with her on that day from 3.30PM until 6.15PM if occurring on a childcare/school day and from 9.00AM to 1.30PM if occurring on a non-childcare/school day;

(i) X will spend time with her father on his birthday, each year in the event that X is not otherwise living with him on that day, from 3.30PM until 6.15PM if occurring during a childcare/school day and from 9.00AM till 1.30PM if occurring on a non-childcare/school day.

8.

That notwithstanding any other order, X will spend time with her father:

(a) From 4.30PM on Sunday, 19 July 2020 until 8.00AM on Thursday, 23 July 2020;

(b) From 9.30AM on Friday, 28 August 2020 until 8.00AM on Wednesday, 2 September 2020; and

(c) From 5.00PM on 27 December 2020 until 12.00PM on 1 January 2021.

9.

That notwithstanding any other order, X will live with her mother:

(a) From 9.00AM on 4 July 2020 until 8.00AM on 16 July 2020; and

(b) From 5.00PM on the night preceding X’s first day of school in 2021.

10.

That each of the parents will do all things necessary to ensure X has reasonable telephone and FaceTime contact with the other parent with whom X is not living or spending time, at times agreed between the parents, noting that each parent will use his and her best endeavour to encourage and facilitate such contact, and wherever possible will take place between 5.30PM and 6.30PM on the Saturday and on at least one additional day during any midweek period in excess of 72 hours when X is in the care of the other parent.

11.

That each parent will provide the requisite written or verbal consents, authorities and agreements to facilitate both parents receiving and having access to:

(a) Childcare/school premises and staff; and

(b) Childcare/school reports, photographs, event notices and attendance requests.

12.

That each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or hearing of X.

13.

That each of the parents is restrained from allowing X to remain in the presence of or within her hearing of any other person who is making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.

14.

That:

(a) Unless otherwise agreed by the parents in writing, the father or his nominee will collect X from childcare/school at the commencement of each period during which X is spending time with her father, and on occasions when X will not be at childcare/school at the commencement of her time with the father, then the father will collect X from the mother’s place of residence; and

(b) On occasions when X will not be delivered to childcare/school at the end of her time with her father, X will be collected by her mother from her father’s place of residence.

15.

That each parent shall inform the other as soon as practicable, and in any event within four hours, of any serious illness or injury, not including common colds and like illnesses, suffered by X whilst in the care of that parent and of any hospital treatment required by X.

16.

That neither parent may permit X to consult with any counsellor, therapist, psychologist, or psychiatrist without first obtaining the consent of the other parent in writing, with such consent not to be unreasonably withheld.

17.

That each parent shall notify the other parent of the name of any medical practitioner, health professional, or alternative health professional who treats X when she is in the care of that parent, and provide such person with an authority to provide to the other parent such documents and information as that other parent may require in relation to X.

18.

That each parent must notify the other parent by email not more than 24 hours after any change to their residential address, landline telephone number (if any), mobile telephone number, and email address.

19.

That each of the parents is restrained from discussing these proceedings or the contents of any document filed in or intended for use in these proceedings with X or within X’s hearing, other than with the leave of the Court.

20.

That each of the parents is restrained from discussing the arrangements for X or any alteration to those arrangements at the point of collection or return of X at the commencement or conclusion of her time with either parent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I further note the comments made by the Full Court of the Family Court of Australia in the case A & A:[72][3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.[3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.[3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.[73][72] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).[73] A & A & The Child Representative [1998] FamCA 25, [3.23]-[3.25] (emphasis added). Where there is contested evidence in an interim hearing, the Court is not always able to make a finding. In cases of contested evidence, the Court is mindful to consider whether the evidence is sufficiently corroborated, and whether this corroboration is existent on the balance of the evidence before the Court, or on the balance of one party’s evidence in support of their case. Either case may enable the Court to make a finding.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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