Horrigan and Connor

[2018] FamCA 386

FAMILY COURT OF AUSTRALIA

HORRIGAN & CONNOR [2018] FamCA 386

FAMILY LAW – CHILDREN – PARENTING – undefended.

Family Law Act 1975 (Cth)

APPLICANT: Ms Horrigan

RESPONDENT: Mr Connor

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 4015 of 2008

DATE DELIVERED: 17 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 May 2018

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Jenkinson

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER

Duffy and Simon

Ms Agresta

Victoria Legal Aid

Orders

1. That the application of the mother filed 2 August 2016 is dismissed for want of prosecution.

2. That the father has leave to proceed in the absence of the mother.

3. That all extant parenting orders are discharged.

4. That the father have sole parental responsibility for X born … 2004 and Y born … 2003.

5. That the children live with the father.

6. That by injunction, the mother is restrained from communicating with X and Y (including through any third party) without any such arrangement being first made with the father.

7. That by injunction, the mother is restrained from communicating with X and Y by contacting their friends including by telephone, text message, social media or otherwise, without the arrangement first being made with the father.

8. That by injunction, the mother is restrained from publishing any information, photographs or details about X and Y in any form of social media.

9. That order appointing the Independent Children’s Lawyer is discharged.

10. That the mother pay the father’s costs fixed in the sum of $5000.

11. That the reasons this day be transcribed.

12. That the response of the father filed 11 April 2018 is otherwise dismissed.

AND THE COURT NOTES that the following are matters that the father wishes the mother to know in relation to X and Y:

(a)That the mother can have time with Y and X by agreement with him;

(b)If during any such arranged time, a child requests to be returned to the father, the mother is expected to facilitate the return of that child or children, any changeover of such arrangements will occur at the B Shop, C Town;

(c)The mother is at liberty to send cards, letters and gifts to the children via the father who will vet their appropriateness; and

(d)The father will advise the mother of any significant medical illness or injury affecting X and Y.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Horrigan & Connor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4015 of 2008

Ms Horrigan

Applicant

And

Mr Connor

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. These are parenting proceedings between Ms Horrigan, also known as Ms E, and Mr Connor concerning two of their three children, Y, who is now 15 years of age and X, who is 14 years of age.  The file of the court indicates that the proceedings between these parties have been extant in one form or another for 10 years.  It is alarming that the proceedings have continued longer than the parties seem to have been together.  Ironically, the applicant in the proceedings is the mother and the last document that is relevant for the purposes of today’s hearing that she filed was an amended initiating application filed on 19 September 2017.

2. It is not necessary for me to set out the orders that she proposed in that application because she has not attended today.  On 23 April she filed a notice of discontinuance.  The document is a little unclear because it says that she is only seeking to discontinue the application for custody.  That same document has a provision for all orders to be discontinued, but that is not the one that she crossed.  For the sake of clarity, it is necessary therefore me to go back to the order that I made on 1 March 2018, which was at a directions hearing.

3. At that time, I set the matter down for hearing today.  The mother had attended in person and informed the court that from her perspective, the case was proceeding.  At the conclusion of the hearing, I made an order that by 30 March, she file an amended application setting out with precision the orders that she desired and file any evidence that she wished to rely upon.  She did none of that.  Whether or not she intended to discontinue the proceeding that were clear in the document she filed in 2017 or not, I can conclude that by her absence today, she having been called at the start of the proceedings and not appeared, or because of the notice of discontinuance or because of the failure to file any material pursuant to the orders, she is not seriously contending that any orders should be made in the terms she previously contemplated.

4. The mother’s initiating application filed on 19 September 2017 is therefore dismissed for want of prosecution. 

5. That then leaves the response of the father.  The amended response was filed on 11 April 2018, which was the day that I had designated under the orders of 1 March for the response to be filed.  The father did not file an affidavit as was required by that order, but leave has been granted to him today to rely upon an affidavit he filed on 4 July 2017.  I have had the advantage today also of having had submission from the father’s counsel and also counsel for the independent children’s lawyer. 

6. The background of this particular matter notwithstanding its longevity in the system, does not need much description.  The parties commenced their relationship in 1997 and on my calculation, the mother at that stage was 15 years of age.  They married in 2001 and then the first of their children, D, was born in 2001.  D is still a child because he is under 18 years of age, but it is not suggested that any order should be sought in relation to him.  I have evidence from the father as to D’s current circumstances and it does not affect the outcome of the orders that I propose to make. 

7. Y and X were born in the years after D.  Y was born in 2003 and X in 2004.  The marriage lasted about four years and the parties separated in 2005.  Since then, the father has remarried and has a child from that relationship.  Proceedings have been ongoing since 2008 and it is not necessary that I deal with all of those matters because of the more recent history.

8. Parenting proceedings are about the future rather than the past, although the past oftentimes gives some indication of what might happen in the future.  The important starting point is 2015, where the mother was living with a man whom I understand she married.  That man’s name was Mr E.  In June 2015 allegations were made that Mr E had sexually abused the children.  That seemed to start further proceedings.  Ultimately, in February 2016 at the Federal Circuit Court, orders were made by consent of the mother that the children live with the father.

9. The mother’s time under the orders was set out to include alternate weekend time and some holiday time along with electronic communication.  However, they also indicated that the mother was not to bring the children into contact with Mr E.  It will be self-evident that the Department of Health and Human Services was involved with the family at that stage and they began supervising the mother’s time.  Mr E seems to have been charged with offences arising out of the allegations made against him, but in April 2016, presumably after a trial in the County Court, he was acquitted of all charges.  

10. What happened thereafter is a little confusing, but in any event when the matter came back before the Federal Circuit Court in relation to the parenting issues, the case was transferred to this court.  In September 2016, the parties were back before this court and again consent orders were made, but this time only in relation to the contact between the mother and the children.  She was to have the children on two consecutive Sundays in a three week cycle for a number of hours.  Despite those orders having been made only days before, the mother attended at the local primary school and removed X from her class.

11. That then led to further proceedings. 

12. In November 2016, the father filed an application seeking a recovery order and also that the mother’s time with the children be “reserved” pending the outcome of any final hearing.  The case was listed for 17 November 2016.  During that same period of time, the Department of Health and Human Services became involved.  In addition to the proceedings in this court, there were intervention order proceedings taken out on behalf of X by her mother in the F Town Magistrates Court in January 2017.  All of these things make the background of the litigation confusing, but one can only imagine the impact upon not only a settled family life but upon these children. 

13. The relevant part of this history for me lies in orders that were made by Bennett J on 23 January 2017.  On that day a recovery order was issued by her Honour for the police to collect X and deliver her back to the father.  It seems that the mother was aware of that proceeding but she did not attend.

14. Notwithstanding the recovery order was made, the father was required to attend F Town to collect X at the time that the police and the department were present.  The father’s unchallenged evidence is that when he greeted X, she got into his car willingly and without fuss and everybody went off home.  According to the father and again unchallenged, subsequent to that particular date, X has settled well at school and at home.  She returned to the C Town Secondary College and commenced year 7.  All indications are that she was enjoying school.

15. Some weeks later there was a hearing before the senior registrar.  The mother attended represented by a lawyer.  With that in mind, she consented to orders suspending all time between she and both of Y and X.  At that hearing, the department representative also attended and provided a report to the court.  Subsequent to that time, the mother has not had any time with the children.  That makes her appearance on 1 March 2018 at the directions hearing to which I earlier referred somewhat perplexing and confusing. 

16. According to the unchallenged evidence of the father, X is now attending school and enjoying time with peers and Y seems to be going well.  Y has not spent any time also with her mother since January 2017.  Subsequent to being returned to the father’s care, appointments were made at CASA and counselling followed, but that has now also ceased, presumably on the basis that there is no further need for assistance.  According to the evidence of the father, which I presume the mother has read, Y has told him that she does not wish to communicate with or spend time with her mother.  Presumably, the mother has decided to respect her daughter’s wishes and, therefore, has not attended to pursue any orders. 

17. The position in relation to X is a little less clear.  I think an appropriate word about X’s views of her mother was used by counsel with which the father agreed, and that is that X is “ambivalent”.  She wants to have restricted time with her mother, such as things like having a lunch now and again or doing specific things that her mother might have in mind.

18. The father’s position, as indicated in his oral evidence today is that he does not want force the children.  He was asked by counsel for the independent children’s lawyer how such an arrangement would work, bearing in mind there has been little, if any, communication between these parents.  The mother has provided no evidence to give me any indication as to how she sees her future relationship with X in the few years of childhood that remain.  It is acknowledged that there is not a good relationship between the parents and to the extent that it is an issue, there is no communication about major long-term decisions even if there were any that were needed to be made.

19. The father was asked how he would make any arrangements, and he indicated, and I accept his evidence, that he was concerned only to do what was best for the children.  Suffice to say I consider that as the mother has not challenged any of his evidence and not attended here today, I see no reason why the Court ought not accept that he is a responsible parent and would do the best he could for the children, including making arrangements if they wanted to see their mother.

20. It has been suggested to me that I should contemplate an order that contact between the children and their mother be as decided between the two parents.  I do not consider it is necessary for me to make that order on the basis that I accept that if the mother wanted to see the children, she could contact the father rather than the children.  If the children wanted to see her, they could make arrangements to do that through their father.  It seems to me that it is unwise for the Court to be proscriptive about any of these sorts of arrangements in circumstances where the Court has no idea of the circumstances under which they would take place.

21. I have no idea what orders the mother wants.  The outline of case document of the father sets out 16 basic orders.  The independent children’s lawyer’s position is that she supports what the father seeks, but no doubt has factored in that the father has to be responsible for these children to make any orders work.  The starting point in respect of the proposed orders is that whatever orders have been made in the past ought to be discharged. 

22. In this case, there will be one document, and it will be simple and clear.  The father seeks sole parental responsibility for the two children, X and Y, and as D is no longer living in either parent’s household, I shall make no orders in respect of him.  In respect of any future time, what has been suggested by me and adopted by counsel for the father is that I add to the orders some notations about his intentions, and I propose to do that rather than to make specific orders that might make people feel better, but in reality are probably meaningless.

23. In terms of the specific injunctions, the father seeks an order that the mother be restrained from communicating with the two children through third parties or in any other way other than through him.  Having regard to the history of this case, I think that is sensible.  The mother has used a variety of means to effectively ignore the father’s responsibilities as a parent and taken the law into her own hands, as can be seen from what I have earlier described as the recovery order.  For the mother to have done that is an indication to me of irresponsible parenting.

24. The order is then proposed that in the event that either child was to spend some time with the mother and the child desired to return to the father, the mother facilitate that.  In my view, rather than make that order, the father can protect himself and the children by simply having made clear in writing that it is a stipulation of any time in the future.  If the mother refuses to comply with that wish, then the father knows that he runs the risk of having to commence litigation again.  To the extent that the mother sees all of this as a denial of her involvement in the children’s lives, I can only indicate that my concern here is that she has not participated in this proceeding in any significant way, but more importantly, her past conduct indicates to me that I could not find her to be a responsible parent.

25. There is also a specific request by the father for an injunction that the mother be restrained from publishing any information, photographs, or details in relation to X and Y in the social media sphere or causing other persons to do so.  There is a history here, particularly in relation to Mr E, of using that media for purposes of criticising the Court system.  It is an inappropriate way to deal with the problems of parenting, and I have no idea who would be interested in looking at it, but no doubt it could be very embarrassing for the children if people in their local area, and with whom they would be attending school and life in general, would see it.

26. There is a grey area between a breach of section 121 the Family Law Act, which restrains people from publishing information about parties to proceedings, which must extend, obviously, to the protection of the children, and that which gives the Court power to make an injunction for the protection of the children under section 68B of the Act. The proposed order is an injunction for the protection of the children rather than any other purpose, and on that basis, notwithstanding some hesitation, I consider order number 12 should be made to make clear to the mother that she can criticise the judicial system and the law as much as she likes, but venting her spleen in relation to that has a side effect which could be highly embarrassing for these children and grossly unfair when she, as the parent, is not only responsible for their protection, but also has had ample opportunity to come along to the Court today to have her say and declined to do so.

27. Other orders are no longer necessary because they relate to taking the children to the various professional health services, the Department of Health and Human Services, and the Victorian Police.  The mother will not be in a position to do that in any event. 

28. In my view, this is a case that needs to be brought to an end.  In any parenting proceeding, the starting point is section 61DA.  The Court there is obliged to consider making an order for equal shared parental responsibility in relation to children unless the presumption is either rebutted or removed.

29. There are significant arguments in this case about the background of family violence, which is the basis upon which the presumption is rebutted, but I do not need to deal with those.  I can conclude that, having regard to the conduct of the mother in withholding X and refusing to participate in these proceedings, it would not be in the best interest of these children for she and the father to have equal shared parental responsibility.  On that basis, I would not apply the presumption.  The removal of the presumption means that I do not have to consider orders set out in section 65DAA.

30. In terms of parenting orders, the power to make such an order is found in section 65D of the Act. It directs the Court to only make orders on the basis that those orders are proper. Section 64B of the Act sets out the nature of the orders that the Court can make. In cases such as this, where there is no challenge to a parent’s responsible behaviour by a parent who I have found irresponsible, the Court does not need to descend into finite detail, but can rather presume that the father would be protective of the children. If it seemed to him to be appropriate that the children have a relationship with their mother, he would arrange it.

31. The person who has been making the decisions in relation to the children’s welfare since January last year and will continue to do so in the future should have sole parental responsibility for them. 

32. Section 60CA of the Act provides that when making a parenting order, the Court must consider the interests of the children as the paramount consideration. Section 60CC sets out how that determination of best interest is made. Here, contemplating every one of the considerations in section 60CC all point to the father having acted responsibly and the mother, the opposite.

33. In my view, it is in the best interest of the children that their future is now secure for the purposes of the rest of their childhood, and so that they can know exactly what sort of a relationship they can have with their mother, the father ultimately has the final say.  In this case, therefore, I shall make orders.

    ORDERS DELIVERED

    RECORDED :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

1. I now have an application for costs. Section 117 of the Family Law Act1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle. The justifying circumstance here to depart from a position that each party pays their own costs is the fact that at the time the matter was set down initially for a hearing before an interstate judge, the father’s position as articulated to the court was that he would make arrangements for time between the parties as agreed.

2. That led to a hearing in January 2018 when the costs before Gill J were reserved.  The mother’s position must have been known at that stage, because the hearing had already been set down by McMillan J.  Since then I had the directions hearing on 1 March, at which time I understood that was to be the same position of the father, that the mother persisted with her application indicating that she wanted the children returned.  She has now discontinued her application, not filed any material otherwise and not attended today.  Those, in my view, are justifying circumstance to contemplate departing from the principle that each party pays their own costs.

3. Before an order can be made, however, the court must take into account the matter set out in section 117(2)A of the Act, which include the financial circumstances of the parties, whether they are eligible for legal aid and also whether there is some conduct associated with the running of the litigation which might be seen as not contributing to the ultimate resolution. Here the only details I have about the mother’s financial circumstances are those known to the father, which is a conclusion I think he can sensibly draw because he has an assessment of $30 a week for child support, but it has not been received. That seems to me to be consistent with the Centrelink requirements.

4. It is also said that she owns a business, but if that is the case then clearly there is no income being disclosed from it that would enable proper child support to be paid.  I can conclude therefore that her financial circumstances are not significant.  Impecuniosity, however, is not a basis alone not to make an order.  It is simply a matter to be taken into account.  In parenting cases it is sometimes suggested that if a court makes an order, it may deter people from bringing proceedings.  Here is an example where the father’s position must have been known long before the directions hearing before McMillan J, because the mother consented to an arrangement well before that.

5. Despite the impecuniosity of the mother, the father should not be out of pocket.  He may have difficulty enforcing any orders, but that can be something he can contemplate in the future. 

6. In terms of the conduct of the proceedings, to fail to comply with the orders of 1 March and simply file a vague notice of discontinuance does not indicate attention to the responsibilities of a litigant.  The mother is not legally aided because she attended the hearing on 1 March without legal representation.

7. This is a case where an order for costs is justified and should be made for a total of $5000 for the reserved cost orders of 25 January and today’s hearing.  Both of those amounts are below the top of the scale for junior counsel.  They are reasonable.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 May 2018.

Associate: 

Date:  29 May 2018