Hannigan & Hannigan

Case [2024] FedCFamC1F 806

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hannigan & Hannigan [2024] FedCFamC1F 806

File number: SYC 6809 of 2024
Judgment of: SCHONELL J
Date of judgment: 27 November 2024
Catchwords:

FAMILY LAW – PARENTING – Interim orders – Where both parties agreed the children should live with the mother – Where the father sought to spend time with the children – Where there is an unacceptable risk to the children in spending unsupervised time with the father – Where the risk cannot be managed by supervised time – Interim orders made for no time with the father.

FAMILY LAW – PROPERTY – Interim orders – Where the father sought a payment of monies to fund his criminal law proceedings – Where the mother opposed the payment of monies contending that it was against public policy for an alleged victim to fund the legal fees of an alleged perpetrator – Orders made for payment to father for lump sum of $30,000.

Legislation:

Family Law Act1975 (Cth) Pt VII ss 60CA, 60CC(2)(a), s 60CC(2)(b), 60CC(2)(d), 60CC(2)(e), 60CC(2A), 60CG, 69ZL, 79, 80(1)(h)
Cases cited:

A & A [2005] FamCA 43

Adamson & Adamson [2018] FamCA 523

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

B and B (1993) FLC 92-357

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Re Andrew (1996) FLC 92-692

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-4606; [2009] FamCAFC 166
Division: Division 1 First Instance
Number of paragraphs: 70
Date of hearing: 19 November 2024
Place: Sydney
Counsel for the Applicant: Mr Allan
Solicitor for the Applicant: Dean Michael Solicitors
Counsel for the Respondent: Mr Cox SC
Solicitor for the Respondent: Watkins Tapsell
Counsel for the Independent Children's Lawyer: Mr Iuliano
Solicitor for the Independent Children's Lawyer: Gonzalez & Co

ORDERS

SYC 6809 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HANNIGAN

Applicant
AND:

MS HANNIGAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

27 NOVEMBER 2024

BY CONSENT THE COURT ORDERS THAT:

1.Pending further order X born 2014 (age 10) and Y born 2017 (age 6) (“the children”) live with the Respondent mother (“mother”).

2.Pending further order the mother shall have sole parental responsibility for the children, including but not limited to;

(a)Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) (‘the Act’) the mother is permitted at any time to travel with and/or permit the child to travel outside of the Commonwealth of Australia on giving one month notice to the father, Including her proposed travel to the United States at the end of 2025.

(b)Solely apply for and obtaining the issue and/or renewal of an Australian Passports for the children, including under the provisions…

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AGLC
Hannigan & Hannigan [2024] FedCFamC1F 806
Case
[2024] FedCFamC1F 806
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with interim parenting and property orders in the matter of Hannigan & Hannigan. The primary issue for the court was the determination of the interim parenting arrangements for the two children of the parties, X and Y, born in 2014 and 2017 respectively. Additionally, the court had to decide on the interim property distribution between the parties. The mother alleged extensive physical and sexual abuse by the father, including incidents of assault on her and threats towards their daughter X. The court found that there was an unacceptable risk to the children if they were to spend unsupervised time with the father and that this risk could not be managed through supervised contact.

The court reasoned that the allegations of physical and sexual abuse made by the mother, if proven, would justify the stringent interim orders made. The court noted that the mother had detailed the father's violent conduct, including choking and assaulting X, as well as his controlling and coercive behaviour towards her. Given these allegations, the court concluded that it was in the best interest of the children to have no unsupervised contact with the father. The court also considered the mother's request for sole parental responsibility, including the right to travel with the children and make decisions regarding their health, welfare, and education. The court granted these requests, also ordering that the substantive proceedings be stayed pending the outcome of criminal proceedings against the father.

In relation to the property dispute, the father sought payment of monies to fund his criminal law proceedings. The mother opposed this, arguing that it would be against public policy for an alleged victim to fund the legal fees of an alleged perpetrator. The court, however, ordered that the mother pay a lump sum of $30,000 to the father. The court did not provide detailed reasoning for this decision but noted that it was an appropriate interim measure given the circumstances. The court further ordered the transfer of ownership and possession of certain motor vehicles to the father within 28 days.

Orders

Orders of the court

SYC 6809 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HANNIGAN

Applicant

AND:

MS HANNIGAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

27 NOVEMBER 2024

BY CONSENT THE COURT ORDERS THAT:

1. Pending further order X born 2014 (age 10) and Y born 2017 (age 6) (“the children”) live with the Respondent mother (“mother”).

2. Pending further order the mother shall have sole parental responsibility for the children, including but not limited to;

(a) Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) (‘the Act’) the mother is permitted at any time to travel with and/or permit the child to travel outside of the Commonwealth of Australia on giving one month notice to the father, Including her proposed travel to the United States at the end of 2025.

(b) Solely apply for and obtaining the issue and/or renewal of an Australian Passports for the children, including under the provisions of the Australian Passports Act 2005 (Cth) and or any amending or subsequent form of that Act,

(c) Retain the children’s passports,

(d) Solely determine the place of residence of the children, and

(e) Make all decisions regarding the children’s health, welfare, development and education.

3. Pending further Order the mother be entitled to occupy B Street, Suburb C, NSW to the exclusion of the father.

4. That the substantive proceedings be stayed pending the determination of the criminal proceedings against the father.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

5. The children shall spend no time with the father and shall have no communication with the father, without the express written consent of the mother or an Order.

6. The mother is permitted to provide a copy of this Order to;

(a) Any school and/or extra-curricular activity organisers the children attend or may attend from time to time,

(b) Any general medical practitioners, paediatricians, hospitals, psychologists or allied health professionals presently engaged by the mother for the children,

(c) Police in support of any family violence or personal protection orders.

7. The father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the mother and/or the children.

8. The mother within 28 days do all acts and things and sign all documents necessary to transfer ownership and possession to the father of Motor Vehicle 1 and trailer;

9. The mother within 28 days cause to be paid to the father’s solicitor by way of partial property order the sum of $30,000.

10. The interlocutory relief of both parties be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Each party including the ICL sought to tender documents that became exhibits in the proceedings. BACKGROUND The parties were married in 2011 in Country J. The parties moved to Australia in 2011 and separated in March 2023 under the one roof. There are two children of their relationship; X born 2014 and Y born 2017. The mother alleges that the father has physically and sexually assaulted her during the course of the parties’ relationship and perpetrated a course of coercive or controlling behaviour. In that respect, the mother contends that she was sexually assaulted by the father in 2019, 2020 and 2023. She says that he on other occasions coerced and pressured her such that she felt intimidated to have sex with him. The mother contends that the father physically assaulted her when she was several months pregnant by kicking her several times in the stomach in 2014, that he pinned her up against a wall and punched the wall next to her head in the presence of the child X in 2019, that he threw the mother into a bookcase, that in 2012 when the mother refused sex he became physically abusive, that in 2013 he slapped her on the face, and that in 2013 he became angry with her and punched the wall next to her head, injuring himself. The mother contends that the father covertly recorded her without her consent at a time when she was naked and says that the father was financially controlling of her, causing her to resign from her work. One such incident she recounted in her affidavit was:97.[In] 2023, I arrived home at [B Street], I could hear [Mr Hannigan] and [X] arguing in the dining room about [X] wanting to watch TV. Suddenly I heard [X] scream. I ran into the dining room and saw [X] and [Mr Hannigan], he wrapped one of his arms around [X’s] neck and placed her in a choke hold. [Mr Hannigan] dragged [X] from the dining room to her room, about ten meters away. I couldn't see [X] clearly as he had turned her body away from me. Once at the door to her room, [Mr Hannigan] let go of [X’s] neck and, with two hands, pushed her back, causing her to fall to the ground. I quickly kneeled over her as she laid on the ground to shield her, fearing [Mr Hannigan], as he was clearly enraged.98.[X] told me that she was trying to walk away from [Mr Hannigan] when he grabbed the hood of her jumper and forcefully yanked her backward, briefly choking her and that is when she screamed. I looked at [X’s] neck and saw a red line across it. She complained that it hurt to swallow, and I could hear her struggling to swallow. [X] also said she tasted blood in her mouth, although I did not check inside her mouth. During this time in the bedroom with her, [X] went on her iPad, and I was on my phone writing to a few people asking for advice through text messages. The mother says that on occasions between 2016 and 2019 the father threatened to assault X. In that respect the mother gives the following evidence:55.On occasions from 2016 - 2019 when [X] was a toddler, [Mr Hannigan] threatened to whip her with his belt, removing the belt from his pants and slapping it on his hand if she didn't eat her dinner. Both [X] and I were intimidated by these threats. I did not condone that, but I had no idea how to stop it without provoking or exacerbating his anger. [X] has told me, in more recent conversations, that he had whipped her on occasions with the belt and hit her with a wooden spoon. I did not witness any such abuse.

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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