FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halligan & Weldon [2024] FedCFamC2F 164
File number(s): ADC 988 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – parenting – risks of drug and alcohol use – failure to comply with orders for hair follicle testing – failure to comply with restraints on contact – failure to file trial affidavits – otherwise positive relationship with the children – weight to be given to children’s wishes – whether risks can be sufficiently mitigated by Court orders Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61D, 61DA, 65D, 65DAC, 102N
Cases cited: Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedcFamC1A 97
Masson v Parsons [2019] HCA 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Valverde [2022] FedCFamC1A 133
Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 8 November 2023 Date of hearing: 6-8 November 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Good Country Law ORDERS
ADC 988 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLIGAN
Applicant
AND: MS WELDON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born in 2011 and Y born in 2015 ("the children").
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)for six hours each alternate week as agreed with the mother and failing agreement each alternate Sunday from 10.00 am until 4.00 pm;
(b)during school holidays for one additional day each fortnight as agreed and failing agreement the Wednesday following the father's Sunday time, from 10.00 am until 4.00 pm;
(c)on Father's Day from 10.00 am until 4.00 pm;
(d)on Christmas Day in even years from 10.00 am until 4.00 pm;
(e)on Boxing Day in odd years from 10.00 am until 4.00 pm;
(f)on the children's birthdays if a weekend day from 10.00 am until 4.00 pm and if a school day from after-school until 6.00 pm.
(g)Such other time as agreed between the parties.
4.The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 3 weeks in order to take the children on a holiday.
5.The parties be restrained from:
(a)consuming illicit substances for 24 hours prior to or during any period of time spending with the children;
(b)drinking alcohol to excess for twelve hours before or during any time the children are in their care;
(c)discussing these proceedings within the presence of the children or allowing any other person to do so; and
(d)criticising, denigrating or abusing the other parent in the presence of the children or allowing any other person to do so.
6.The father be restrained from bringing the children…
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CaseChat Overview and Summary
The central legal issues before the court were whether the risks associated with the father's drug and alcohol use could be sufficiently mitigated by court orders, and if the children's wishes should carry significant weight in the decision-making process. The court had to balance the father's right to spend time with his children against the need to protect the children from exposure to substance use and ensure their safety and wellbeing. Additionally, the court had to consider the parents' failure to comply with previous orders, including hair follicle testing and restraints on contact.
In delivering its judgment, the court found that while the father had a positive relationship with the children, his drug and alcohol use posed significant risks. The court was particularly concerned with the father's failure to comply with orders for hair follicle testing and restraints on contact. Despite this, the court recognised that the children had a strong bond with their father and valued the time they spent together. After weighing the evidence and considering the children's wishes, the court concluded that the risks could be managed through specific court orders. These included restrictions on substance use and alcohol consumption before and during contact time, as well as prohibiting discussions about the proceedings and negative comments about the other parent in the children's presence.
The court's final orders granted the mother sole parental responsibility, with specific arrangements for the father's contact with the children. These included regular weekend visits, additional time during school holidays, and special occasions such as Father's Day, Christmas Day, Boxing Day, and birthdays. The court also imposed restrictions on the father's substance use and alcohol consumption and prohibited him from exposing the children to his partner if she was under the influence of illicit substances. The orders aimed to protect the children while allowing the father to maintain a meaningful relationship with them.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The mother have sole parental responsibility for the children X born in 2011 and Y born in 2015 ("the children").
2. The children live with the mother.
3. The children spend time with the father as follows:
(a) for six hours each alternate week as agreed with the mother and failing agreement each alternate Sunday from 10.00 am until 4.00 pm;
(b) during school holidays for one additional day each fortnight as agreed and failing agreement the Wednesday following the father's Sunday time, from 10.00 am until 4.00 pm;
(c) on Father's Day from 10.00 am until 4.00 pm;
(d) on Christmas Day in even years from 10.00 am until 4.00 pm;
(e) on Boxing Day in odd years from 10.00 am until 4.00 pm;
(f) on the children's birthdays if a weekend day from 10.00 am until 4.00 pm and if a school day from after-school until 6.00 pm.
(g) Such other time as agreed between the parties.
4. The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 3 weeks in order to take the children on a holiday.
5. The parties be restrained from:
(a) consuming illicit substances for 24 hours prior to or during any period of time spending with the children;
(b) drinking alcohol to excess for twelve hours before or during any time the children are in their care;
(c) discussing these proceedings within the presence of the children or allowing any other person to do so; and
(d) criticising, denigrating or abusing the other parent in the presence of the children or allowing any other person to do so.
6. The father be restrained from bringing the children into contact with Ms B if she is affected by illicit substances or leaving the children unattended in her care at any other time.
7. Both parents be permitted to attend at any school events or extracurricular activities of the children normally attended by a parent.
8. In the event the father obtains a hair follicle test which is negative for all illicit substances the parties are to attend mediation to discuss the possibility of extending the father's time including overnight time.
9. All extant applications save for the father's contravention application filed 8 April 2022 are otherwise dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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