Hannigan & Hannigan
[2024] FedCFamC1F 806
•27 November 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hannigan & Hannigan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Initiating Application filed 30 August 2024, the applicant father (“the father”) seeks interim parenting orders in relation to the parties’ two children, as well as a partial property order. Each of the orders sought by the father are opposed by the respondent mother (“the mother”). The Independent Children’s Lawyer (“ICL”) did not support any time between the father and the children.
The exact form of order sought by the father was set out in Exhibit 1. Pursuant to that order, the father sought a period of time with the children each Sunday from 10.00 am until 3.00 pm and thereafter on a gradually increasing basis building to alternate weekends from 5.00 pm or after school on Friday until 9.00 am on the following Sunday as well as on Tuesday from after school or 5.00 pm until 9.00 am on a Wednesday. Any changeover would occur at the school and would involve someone in lieu of the father facilitating the changeover. All time was initially to be supervised by a professional third-party and thereafter supervised by a friend of the father or such other person as the parties agree.
In addition, the father sought an order pursuant to s 79 and s 80(1) of the Family Law Act1975 (Cth) (“the Act”) for a sum of $65,000 as well as the transfer to him of a vehicle and trailer. The father also sought an order that the proceedings be adjourned or stayed until determination of criminal proceedings.
The mother sought orders (Exhibit 2) which the father agreed to that the children live with her, that she has sole parental responsibility and exclusive occupation of the former matrimonial home. In those circumstances, I will make those orders by consent. She however opposed any order for time between the children and their father and sought a dismissal of the father’s financial orders. She consented to an order that the proceedings be adjourned or stayed pending determination of the father’s criminal proceedings.
DOCUMENTS RELIED UPON BY EACH PARTY
The father relied upon the following documents:
(1)Initiating Application filed 30 August 2024.
(2)Affidavit of father filed 30 August 2024;
(3)Affidavit of Mr D filed 15 November 2024;
(4)Affidavit of Mr E filed 18 November 2024;
(5)Financial statement filed 30 August 2024;
(6)Written submissions filed 16 November 2024.
The mother relied upon the following documents:
(1)Response to the Initiating Application filed 25 September 2024
(2)Affidavit of mother filed 25 September 2024
(3)Financial Statement of mother filed 25 September 2024
(4)Affidavit of Ms F filed 25 September 2024
(5)Affidavit of Ms G filed 25 September 2024
(6)Affidavit of Ms H filed 25 September 2024;
(7)Case Outline.
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.
The father was arrested in early 2024 and charged with a series of offences. In relation to those matters the father says the following:
31.According to NSW Police, [Ms Hannigan] gave them a statement [in mid] 2024. That evening the police arrested me […], and charged me early the next morning. They refused to give me bail, and the Local Court then granted me bail. Police then charged me again [in mid] 2024 and refused me bail again, and the Local Court granted me bail again, on the same terms.
32.It is alleged that I committed offences against or affecting [Ms Hannigan] between 2012 and 2020, […] 2023 and […] 2024. The allegations concern assaults and intimidation of [Ms Hannigan] and the recording of intimate audio and images of her. It is also alleged I committed an offence of violence against [X] in [mid] 2023. It is also alleged I possessed an unauthorised ‘[imitation weapon]’ without a permit.
…
34.I have entered pleas of Not Guilty to [a number of the] charges, including the charge relating to [X]. In respect of one other charge, I have not entered a plea because it was invalidly commenced, and a plea has not been required. The police admitted in court [in mid] 2024 that they were trying to validate the charge; I objected through my lawyer. I have not yet been required to enter any pleas in respect of the remaining three charges. The proceedings are next in court for procedural matters [in late] 2024.
35.The Local Court has granted me bail on the terms that are identified in the bail report that is attached and marked 'E'. One of the terms is to comply with an interim apprehended domestic violence order (family violence order), which was made (without admissions) by the Local Court. That order prevents me from:
a. contacting [Ms Hannigan] except by way of legal representatives;
b.contacting the children except with [Ms Hannigan’s] written agreement;
c.assaulting, threatening, stalking or harassing [Ms Hannigan] or the children, or damaging their property; and
d.being within one kilometre of the matrimonial home, except in relation to some work travel, or being near the children's school or places of study or care;
I have no desire to speak to [Ms Hannigan] or be anywhere near her. I have no interest in speaking to the children about the Local Court proceedings. If [X] or [Y] somehow asked me about them, I would have no difficulty in saying that it is something I am not allowed to discuss with them.
The father has declined to provide any response to the mother’s allegations set out in her affidavit and more fully set out in the Facts Sheets, court attendance notices and police statements of the mother dated mid-2024 comprising Exhibit 4.
The children have not seen their father since his arrest in mid-2024, being a period now of several months.
SUBMISSIONS OF THE FATHER
The father’s counsel in a Case Outline says the following:
1.The applicant, [Mr Hannigan], seeks interim orders for his daughters, [X] (10) and [Y] (7), to spend five hours with him each Sunday for the remainder of the present school term. He proposes that that time is supervised, potentially by a paid independent third party. He proposes that his time with [X] and [Y] progress eventually to overnight time. There is enough weeks left in the school term for an appropriate regime of limited, supervised visits, and there are no unacceptable risks in that proposal. There is no evidence, for example, that [Mr Hannigan] has a propensity for violence towards his children. The respondent points to threats of corporal punishment when [X] was a toddler, and an alleged choke-hold in mid-2023, but they do not show that [Mr Hannigan] is unable to be a responsible parent. Nor does either point have anything to do with [Y].
2.The applicant’s interim proposal would allow him to be a meaningful figure in his daughters’ lives. Their connection was lost [several] months ago, in [mid] 2024, when the respondent complained to the police about historical matters, and the police in turn arrested and charged him. He and the respondent had been living at [B Street] with their children up until that time. They purchased it in […] 2021 and separated under the same roof in early 2023.
…
9.The respondent’s position appears to be that the children should have no time with [Mr Hannigan] whatsoever. The difficulty here is that her allegations are about past conduct, after which the family continued to live in the same residence for many months. Further, the respondent’s allegations about his past conduct (chiefly towards her) do not translate into an intolerable risk of anything in the future (for the children). Nor does it address the ways that any such hypothetical risk can be mitigated (s 60CC(2)(a)). The court can build into any interim parenting orders protection against risk – such as the professional supervision the applicant himself proposes.
10.The court’s approach to risk is part of a broader inquiry into future probabilities and what will promote and protect a child’s interests. It makes relevant the corollary to the respondent’s position. Her position, which is of no contact between the children and their father into the indefinite future, would create a potentially irreparable rupture in the parent-child relationship. The children’s ages of 7 and 10 emphasise this: they are at an age when children begin to think more carefully about their world and who they are. A no-time approach poses a greater risk to their developmental and psychological needs than is the case if the children spend time with both their parents, and in [Mr Hannigan’s] case, that time is properly supervised (s 60CC(2)(c)).
…
12.The bigger point here is that any evidence of vicarious trauma in the children is tenuous. Furthermore, there is no evidence to suggest the applicant would skirt any precautionary safeguards put into place (s 60CG(2)). It would obviously be counterproductive for [Mr Hannigan] to evade the terms on which the children finally get to spend some time with him.
13.Ultimately the court must assess, conservatively, whether [Mr Hannigan’s] proposed orders place [X] or [Y] at risk. They do not do so, and even if they did, the proposal itself mitigates such risk. In this case there are isolated allegations about [Mr Hannigan] pushing and aggressively holding the respondent in front of [X], dating to […] 2019 and […] 2023, and an allegation about the children seeing their parents argue. If proven, they might be found to have had an emotional effect on the children. Any such effect is, however, outweighed by the potential emotional impact of them not spending any time at all with a parent.
14.This time of the year also offers the court an opportunity to make interim orders that allow the children’s relationship with their father to develop. Summer has arrived, Christmas is coming, and there are about five weeks left of the school year. This time of year promotes the idea of outdoor, daytime activity on a Sunday, which the children enjoy. The orders can phase professional supervised time into later, informal supervision in the outdoors by a reliable third party, such as [Mr E] and his family. The applicant lives in [Mr E’s] house with him, and in granting the applicant bail the Local Court accepted [Mr E] as a surety.
The father’s counsel in his oral submissions reiterated the historical nature of the mother’s allegations and that most of the mother’s allegations are directed towards his conduct to the mother. He also referred to various text messages attached to the father’s solicitor’s affidavit which it was said demonstrated a good co-parenting relationship and are inconsistent with a risk to the children.
He further submitted that there are no allegations about any inappropriate behaviour or conduct between the father and Y. His counsel submitted that the history of the parenting relationship between the father and the children does not demonstrate an unacceptable risk and any risk which may be found to exist is mitigated by the father’s proposal for time on a supervised basis.
He submitted that the Court needs to be cautious in moving forward and particularly in circumstances where the criminal proceedings may take 12–18 months to conclude, the consequence of the mother’s proposal would be to deny the children a relationship with their father for a significant period of time. The father’s counsel submits that allegations of violence towards the mother do not translate to a risk of violence or harm to the child.
In relation to the orders for partial property settlement, the father’s counsel submitted in his Case Outline as follows:
20.The house is worth at least $1.6 million and on that figure the applicant’s legal interest is worth about $800,000. Naturally, the court will have to assess each party’s respective overall contributions, and there is likely to be an adjustment for future needs, in the respondent’s favour, perhaps in the vicinity of 10 per cent. If the court assesses contributions as roughly equal, the value of the house would therefore be effectively split 40:60 in the respondent’s favour.29 That means his share for present purposes would be about $720,000. The parties’ balance sheet suggests an asset pool of roughly $1.8 million excluding super. The applicant therefore anticipates an ultimate split of the parties’ assets whereby he receives roughly $720,000 of $1.8 million excluding super, or 40 per cent. With super, he foresees an ultimate split of $790,000 out of about $2 million, or 39.5 per cent.
21.The applicant says he has received a $65,000 present estimate for costs in the criminal proceedings.30 That is not an outsized figure. It is about 3.6 per cent of the asset pool excluding super, and about 9 per cent of his entitlement in the house.31
22.Even if the applicant is wrong in his current assessment of the likely property outcome, it is likely that, in the determining property interests, the court in its family law jurisdiction will award him at least 3.6 per cent of the asset pool. The parties have been married for a moderate length of time, and the respondent herself says the applicant should receive 20 per cent of the pool excluding super.
23.Where the parties appear to differ is that the respondent asserts it would be against the public interest, and offensive to her, if ‘she’ had to effectively pay his legal fees so that he could properly defend himself. The implication here is that [Mr Hannigan] will one day be liable to her for damages and therefore she should not have to relinquish that credit by paying over something now.
24.That is a flawed argument. [Mr Hannigan] has no legal training and English is his second language. He plainly needs to be represented to ensure a fair trial in a criminal court. He does not have a rainy-day fund, but rather equity in a house. And he, like her and every other member of the community, is entitled to the presumption of innocence until proven guilty, usually by the unanimous verdict of his peers. What would be an affront to the public interest is for a complainant to control whether a defendant can have access to a lawyer, notwithstanding his contributions towards the equity they have built.
25.There is, in short, a false circularity in the idea that a person should not have access to a fund because one day they will have to give that fund back. The fault is in the ‘will have to’. It presumes everything said against the applicant is true, when the point of access to the fund is to show that that ‘truth’ may be doubted. Funds are not sought for entertainment but to properly defend an allegation.
26.Similarly, the applicant’s position in this court should not be weakened at some later time by an effective lack of access to representation. Neither the public interest nor grants schemes would invite him to look to the taxpayer for representation, ignoring his asset base. This is the other leg of his interim application: he seeks $50,000 on account of expected legal fees and disbursements in this court. Again, this sum is within the amount which the respondent says [Mr Hannigan] is entitled to, using family law principles. Again, her resistance appears faultily based in her common law damages.
27.It may be added that to refuse an interim distribution of property, because of a pending common law claim, would in a sense be to give a party security for a hypothetical judgment debt. That is not a basis on which asset preservation (‘Mareva’) orders are made: Finn v Carelli [2007] NSWSC 261 [4] – [5]. Even when such orders are made, they do not prevent the release of funds to enable legal representation in the defence of a claim: In the Matter of Gondon Five Pty Ltd [2016] NSWSC 1584 [5].
SUBMISSIONS OF THE MOTHER
The mother’s counsel referred to the mother’s affidavit which, it was said, set out a long history of physical, verbal, psychological and coercive and controlling violence perpetrated by the father on the mother, some of which was observed by the maternal grandmother. Her senior counsel submitted that the children have been exposed to the father’s violence, including when the mother was sexually assaulted.
Senior counsel on behalf of the mother submitted in his Case Outline as follows:
11.The mother contends the children are at unacceptable risk of physical harm from the father, and at risk of psychological harm through exposure to family violence perpetrated by the father. Further, she contends the children at a risk from the father’s drug and alcohol use.
12.Although the mother’s evidence is untested, the magnitude of the risk posed to the children is so great as to warrant an interim order of no time. The harm cannot be mitigated by professional supervision as the father contends ought be in place for 8 weeks. To allow the father to spend time, even supervised, with [X] would expose her to the perpetrator of a crime upon her. For the father to seek direct contact and communication with [X] would undermine the criminal justice processes (given [X] is due to give evidence for the prosecution), which are designed to protect the child. Any time or communication could only be for the benefit of the father and not the child.
13.The mother gives evidence that she fears the father will hurt or kill her and / or the children (W [142]). In circumstances where the father concedes the children ought live primarily with the mother, the parenting arrangement that promotes the safety of the mother is no time with the father.
As to the financial orders sought by the father, the Case Outline recorded;
26.The only liquid funds (other than the sale of the [mother]’s CBA shares which would result in CGT), are the approximately $60,000 in the [mother]’s bank accounts. Those funds are primarily from the net proceeds of sale of the [mother]’s former apartment.
27.The father seeks more than the entirety of these liquid funds for partial property settlement and lump sum spouse maintenance. One of the purported uses is to fund legal costs of the criminal proceedings. It would be contrary to public policy for the alleged victim of serious violence to be required to fund the criminal defence of the alleged perpetrator.
28.The mother proposes to use this money to meet the shortfall in living expenses of herself and the children and other costs such as the psychological and psychiatric treatment of the mother and the children arising from the father's domestic violence.
29.The [father]’s evidence is that he had minimal assets when the parties commenced cohabitation in [Country J]. It is not contentious that at the commencement of cohabitation the [mother] owned a unit at [Suburb K].
30.He asserts he made a non-financial contribution in building a property that was subdivided and sold. The [mother] asserts she too made a great non-financial contribution to that property, drawing plans and documentation and organising the Development Approval (W[46]).
31.The [mother]’s evidence is that she made the greater financial contribution during the relationship (even when she was on paid maternity leave4), and the greater homemaker and parenting contribution. She seeks a Kennon adjustment. In addition to property adjustment pursuant to s 79, the [mother] is concurrently seeking damages for intentional torts perpetrated by the [father] on her. That damages claim, including a significant economic loss claim should reasonably be assumed to be substantial. It is likely the damages for that claim will exceed the [father]’s residual interest in the matrimonial assets under adjustment pursuant to s.79.
32.In the context of this case, in particular the damages claim that the [mother] pursues, the Court could not conclude $115,000 is a conservative amount.
33.The [father] otherwise seeks on an interim basis that a [vehicle] and trailer be transferred into his name. The [mother] seeks to retain the [vehicle] and trailer on a final basis. There is no evidence as why this is necessary on an interim basis, and is best dealt with as part of the final s 79 adjustment.
SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER
The ICL submitted that the Court should not make any order for time between the children and the father at this stage. The ICL’s counsel submitted that the mother raises serious assertions in relation to allegations of family violence perpetrated by the father not just on the mother but also X. The ICL’s counsel initially proposed in the Case Outline that there be prepared a Child Impact Report, however counsel for the ICL properly conceded that the time between the preparation of such a report and the contended stay of family law proceedings until the father’s criminal proceedings are finalised would likely render the report outdated and of little forensic value.
DISCUSSION – PARENTING ORDERS
Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), the Court must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm.
The Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
The mother has adduced evidence, albeit untested, that raises serious questions about the father attitude toward women and his parenting capacity. The mother’s evidence is unchallenged beyond the contention that on some of the charges he has entered a plea of not guilty whilst in respect of others he has not yet been required to enter a plea. The mother’s assertions as to risk extend beyond those the subject of charges. They do not involve one-off or isolated allegations but a long-standing pattern of alleged inappropriate behaviour. If established, they reflect poorly upon the father’s parental capacity.
Counsel for the father makes much of the father’s right to silence and the presumption of innocence. Each such submission is undoubtedly correct, but their application to this jurisdiction is, beyond the recitation, limited. There is no right to silence in a parenting case and a party who elects to give no evidence beyond putting the other to proof carries the consequence of such tactical election. The mother’s allegations are very serious and cannot simply be ignored because the father seeks to preserve his right to silence.
These are interim proceedings and there has been no cross-examination. Conscious as I am that I cannot make findings on these disputed allegations, I am equally conscious that I cannot simply ignore questions of possible risk and harm.
I do not accept the submission of the father’s counsel that the father’s past alleged conduct towards the mother “does not translate into an intolerable risk of anything in the future (for the children)” (father’s Written Submissions filed 16 November 2024, paragraph 9).
Family violence is a curse which affects not just the immediate victim, but also children, even if not directly observed by them. Children exposed to family violence may suffer from a range of emotional and psychological responses that impact upon their development into healthy well-functioning adults. As the Full Court observed in Amador & Amador (2009) 43 Fam LR 268 at [95] “the consequences of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the children’s welfare.” A perpetrator of family violence provides a poor role model to children as it reflects on every facet of their attitude to the responsibility of parenting.
This is a case all about risk. The task of the Court in relation to questions of unacceptable risk is as identified in Isles & Nelissen (2022) 65 Fam LR 288 is to undertake a qualitative analysis of the evidence directed not just to the existence of the risk of harm but also to the magnitude of the possible harm. An assessment of the probabilities is not the measure by which a future risk of harm is determined. A possibility may be sufficient basis upon which to find an unacceptable risk.
There is no evidence as to the views of the children (s 60CC(2)(b)). I am satisfied that it is to the benefit of the children to have a relationship with their father (s 60CC(2)(e)) provided it is safe for them and the mother to do so (s 600CC(2)(a)) and does not compromise the mother’s capacity to provide for the children’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)).
I cannot ignore the serious allegations raised by the mother which extend beyond those for which the father has been charged and to which he has responded. The father has had the mother’s evidence since shortly after 23 September 2024 and has elected to place before the Court no contradictor to what she says or contextualisation to her assertions in respect of her allegations beyond those with which he is charged. I am satisfied that there is a proper basis for concluding that there is the possibility of the existence of harm and that the magnitude of that risk of harm is such that the children would be at an unacceptable risk of harm if the father were to spend unsupervised time with them.
The parties have framed the matter for determination in a narrow compass, albeit the consequences are significant. The father seeks only supervised time. The question then is whether the children are at an unacceptable risk of harm by spending supervised time with the father. The father says they are not while the mother and ICL say they are.
The jurisprudence of this Court makes clear that the genuine fears of a primary carer about the existence of a risk is a consideration in the risk assessment (see Re Andrew (1996) FLC 92-692; A & A [2005] FamCA 43). The mother gives evidence of the affect upon her of what she says she has endured. She says she is fearful of the father and afraid for the wellbeing of the children and if they spend time with him. She describes the impact of him seeing the children or communicating with them as a continuation of his coercive control of her.
There has been no testing of the mother’s assertions, so I am not in a position to second guess her assertions or reject them outright. If her evidence is accepted, there may be a logical and rational basis for her fears and for the conclusion of coercion or control. I cannot ignore the possibility of risk to the children’s welfare of her parental capacity being adversely affected by the children spending time with the father even on a supervised basis in circumstances where, on the father’s proposals, the mother is the undisputed primary carer and the person with sole parental responsibility.
I am conscious of the fact that the children have not spent time with the father since mid-2024, a period of some several months. There is no evidence of how the children are responding to not seeing their father. The mother’s proposal on a final basis is a no time order. There is no expert evidence before the Court nor a proposal by either party to obtain any expert evidence in the short term. While the ICL initially suggested a report be obtained, he seemed to resile from that position during submissions.
Each party proposes a stay of the proceedings pending determination of the criminal proceedings so that, on the basis of the father’s submission, the matter is unlikely to be revisited for another 12–18 months. The consequence of the way the parties have chosen to conduct the proceedings means there is no expert evidence as to the risk of harm to the children by a reintroduction of time with their father only to have the possibility of that time then suspended by a final order (as the mother seeks) or incarceration as opposed to the possible risk of harm to them by a continuation of the existing regime of no time. The children have not seen their father for several months and on balance I am satisfied (in combination with the possibility of risk to the mothers parenting capacity) where there is no expert evidence, that there is a lesser risk to their welfare when continuing the status quo as opposed to resuming time only for them to face the possibility of it then stopping again.
The father’s proposals for time are that it occur on a professionally supervised basis for approximately seven occasions before moving to supervision by his friend or a person agreed on in writing. I can only presume that the movement from professional supervision to that by a friend is dictated by cost, given his limited financial means. The proposal that the supervisor be one agreed upon is a meaningless order as it simply means that one party can unilaterally veto the other’s nomination. That realistically leaves Mr E as the supervisor.
The father’s evidence is that he seeks to move out of Mr E’s home to an independent residence. His evidence does not indicate how supervision could be properly implemented either in his home or that of Mr E when time under his proposal proceeds to overnight weekend time.
I am not satisfied that the supervisor proposed by the father ameliorates or mitigates, as counsel for the father submits, the possibility of a risk of harm to these young children. The supervisor’s affidavit does not reveal that he has any knowledge of the charges, or the broad sweep of allegations made by the mother. A mere statement in his affidavit that “I have been listed by choice as an acceptable person for bail in [Mr Hannigan’s] criminal proceedings” (affidavit of Mr E filed 18 November 2024, paragraph 2) is insufficient.
There is no evidence that the proposed supervisor is aware of what it is he is to be watching out for or aware of when he is supervising. As the Full Court observed in B and B (1993) FLC 92-357 at 79,781:
3. Who should supervise the access?
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, ``Supervising Visits between Parent and Child'', Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).) Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
I am not satisfied for the above reasons that supervision mitigates the unacceptable risk. I am satisfied for the above reasons that at present in the absence of expert evidence, the children’s best interests are met by a no time order.
In those circumstances, I propose to make an order as sought by the mother.
DISCUSSION - FINANCIAL ORDERS
The father seeks a sum of $65,000 by way of partial property order to meet some or all of his legal fees in the criminal proceedings. He abandoned, in light of the stay, an order for his fees in the family law proceedings.
I have earlier referred to each parties’ contentions as outlined in their counsel’s respective Case Outlines.
The mother opposes the order on a number of bases, including that it if is ordered it will defeat her ability to recover a verdict in her common law claim and that it is repugnant to notions of common sense and public policy that a victim should be compelled to fund the legal fees of the alleged perpetrator. The mother ameliorated her position in submissions in relation to the vehicle and did not oppose it being sold and the proceeds paid to the father. In circumstances where the father sought the vehicle, and the mother was not opposed to its sale, there is no principled reason why it should not be transferred to him. I will make orders to give effect to this.
The monies sought by the father are to meet some or all of his legal fees in his criminal proceedings (Order 11(b) of Exhibit 1). I am not satisfied that it matters what the father seeks to expend the money upon, provided I am satisfied that it meets the necessary requirements of a partial property order.
The jurisprudence on the circumstances in which the Court can make an order for what is colloquially called ‘interim property’ are well settled. The authority to make such an order is found through a combination of s 79 and s 80(1)(h) of the Act. Section 79 is the source of power, while s 80 enables the making of the order.
The Court must initially be satisfied that it is appropriate to make an order and that it is it in the interests of justice to make an order. If so, then the Court must determine if a case has been established for the making of a s 79 order. An exhaustive assessment of the s 79 considerations is not required.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), Boland & O’Ryan JJ observed:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
In Medlow& Medlow (2016) FLC 93-692 the Full Court observed:
86.The onus was clearly upon the husband to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat the wife's property claims. The onus was not on the wife to adduce such evidence.
In considering whether to make an interim property order, I am satisfied the authorities make clear:
(a)The Court should act conservatively.
(b)The Court needs to be satisfied that it is in the interests of justice to make an order.
(c)The Court needs to be satisfied that a case is established to make a s 79 order. A detailed assessment of the s 79 considerations is not required.
(d)The Court needs to be satisfied that there are sufficient assets available for an interim distribution but it is not necessary to point to an immediate fund.
(e)The categories of cases in which an order will be made are not closed and are not limited solely to legal costs.
(f)The Court needs to be satisfied that the order proposed to be made is capable of being reversed or considered at the final hearing.
The pool of assets according to the balance sheet promoted by the mother is approximately $1,900,000. It comprises an unencumbered home in joint names, the mother has monies in a bank account of approximately $64,000, shares worth approximately $20,000, vehicles, and superannuation of $163,000. The father has a business, a vehicle, and very modest savings.
The mother contends by her final relief that the assets of the parties should be distributed pursuant to s 79 of the Act as to 80 percent to the mother and 20 percent to the father. In addition, the mother seeks to agitate a common law action for assault, battery and unlawful imprisonment. As part of her Response in the proceedings, she includes a Statement of Claim which seeks damages including aggravated and exemplary damages. The Response quantifies the damages at $1,000,000 or such other sum as is determined by the court.
The father has in his affidavit set out evidence that he has made contributions that, if established, would give rise to an arguable claim for financial adjustment under s 79 of the Act. I am satisfied, upon a review of the evidence filed by both parties, (as limited as it is) that the father would get at least 20 percent pursuant to s 79 of the Act. The mother, clearly by the form of the relief she seeks, acknowledges that an award as to 20 percent of the pool to the father represents, as far as she is concerned, a just and equitable determination. The major asset of the parties is the matrimonial home which is in joint names and is unencumbered. The father clearly has a legal interest in that property in excess of that which she seeks he have and less than his counsel posited may eventuate.
I am satisfied that there are assets available to make an interim distribution. Both parties have competing claims on the assets including the need for cash funds to meet their immediate needs. In that respect the mother says that she has a need for cash funds, as does the father. I am satisfied that a payment to the father can be considered at a final hearing pursuant to s 79 of the Act and is of such magnitude that it can be considered without compromising the mother’s claim pursuant to s 79 of the Act. The claim for common law damages arises entirely separate to the s 79 claim and no part of the established jurisprudence of this Court recognises as part of the s 79 process a quarantining of a party’s property after the s 79 determination (as the structure of the mother’s orders propose) to meets an as yet undetermined claim for damages.
Acting conservatively and cautiously, I am satisfied that it is in the interest of justice that there should be a payment by the mother to the father and I assess that amount at $30,000. I recognise in doing so that it is less than the amount sought by him, but it represents a balance between both parties competing needs for access to funds.
Accordingly, I will make an order that the mother cause a payment to be made to the father’s solicitor within 28 days of $30,000.
I will make orders as identified, including those the subject of consent, and otherwise dismiss the interim relief of the parties.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 27 November 2024
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