Horrigan and Horrigan

[2018] FamCA 924

FAMILY COURT OF AUSTRALIA

HORRIGAN & HORRIGAN [2018] FamCA 924

CHILDREN – Orders by Consent – Orders that the child live with the mother and spend time with the father – Parents to share equal shared parental responsibility of the child – Specific issues orders – Injunctive orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Horrigan

RESPONDENT: Mr Horrigan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 690 of 2017

DATE DELIVERED: 29 August 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: Ms Gibson

SOLICITOR FOR THE RESPONDENT: Charmaine Gibson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

Orders

PARENTING ORDERS

1. BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. All extant parenting applications be dismissed.

IT IS DIRECTED

1. The solicitor for the applicant forward to my administrative associate by close of business today, an electronic version of the minute of order, in word format.

2. A copy of a transcript of the reasons today be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Exhibit “1”

DEFINITIONS

A“The Father” is B’s Father.

B“The Mother” is B’s Mother.

C“The Parents” are the father and the mother.

D“B” is the child born in 2011.

EXISTING POLICE FAMILY VIOLENCE ORDER

1. Upon noting that the following order envisages The mother and The father coming into contact with one another for the purposes of the handover B and communicating with each other in accordance with these Orders and is therefore inconsistent with the Police Family Violence Order made on 20 June 2017 (FVMS Number: …8), which prohibits the father from making contact with The mother and B such order is varied pursuant to the provisions of section 68P(2) of the Family Law Act 1975 to enable the following Parenting Orders:

ORDERS

1. All extant Parenting Orders are discharged.

Parental responsibility and Schooling

1. The Parents will have equal shared parental responsibility for making decisions about major long term issues for B.

2. Each parent is to introduce themselves to each person involved in B’s life that are involved in the “major long term issues” in B’s life AND FOR THIS ORDER the phrase “major long term issues” means issues about the care, welfare and development of B of a long-term nature and includes (but is not limited to) issues of that nature about B’s:

   (a)education (both current and future); and

   (b)religious and cultural upbringing; and

   (c)health; and

   (d)name; and

   (e)living arrangements that make it significantly more difficult for B to spend time with a parent.

3. For the previous Order, each Parent must affirm and positively promote the rights and responsibilities each other have in accordance with the previous Order about parental responsibility.

4. The Parents will do all acts and things including but not limited to signing all documents necessary to keep B enrolled in S School. For his primary school years.

B’s Living arrangements

1. Except for when living with the Father in accordance with these Orders B will live with the mother.

2. If B would be living with the Father on the following occasions, B’s time with the father is suspended and spend time with The mother as follows:

   (a)On the Mother’s birthday (… January) from 4:00PM on previous day until 4:00PM on … January or as otherwise agreed between the Parents.

   (b)On Mother’s Day from 4:00PM on the Saturday eve until the return to school on the following Monday.

3. B will live with the Father as follows:

   (a)During school time each alternate weekend (commencing Thursday, 6 September 2018) from the conclusion of school Thursday until the return to school on the following Tuesday (or 9:00AM if not a school day) with handover at the D park.

   (b)For one half of the term and summer school holidays each calendar year as agreed by the Parents and failing agreement commencing on the first Saturday at 4:00PM and each alternate week thereafter.

   (c)On Father’s Day from 4:00PM on the Saturday eve until the return to school on the following Monday.

   (d)On other days and times as agreed by the Parents in writing. (including by text).

Christmas and Easter Arrangements

1. For Easter B will spend time with the Parents as follows:

   (a)In 2019 and each alternate year B will spend time with the Father from the end of school on Easter Thursday until 12 noon Easter Sunday; and

   (b)In 2020 and each alternate year and each alternate year B will spend time with the Mother from 4.00PM Easter Saturday until Easter Tuesday.

2. For Christmas B will spend time with the Parents as follows:

   (a)with the Father in 2019 and each alternate year from 3:00PM on Christmas Day until 3:30PM on Boxing Day and in 2020 and each alternate year from 3:30PM Christmas eve until 3:30PM on Christmas Day; and

   (b)with the Mother in 2018 and each alternate year from 3:30PM on Christmas Day until 3:30PM on Boxing Day and in 2019 and each alternate year from 3:30PM Christmas eve until 3:30PM on Christmas Day.

Anzac Day

1. B will spend time with the Mother for Anzac day from 4:00PM on 24 April until 4:00PM 25 April each year. In the event Anzac day falls on day that B is living with the father, the next occasion B spends with the Father will be extended by 1 night.

Handover

1. For Handover:

   (a)during school days each parent will collect B from school and return B to school at the commencement and end of B’s time with that parent;

   (b)on non-school days handover will take place at the D park; and

   (c)the Parents may agree to vary these handover arrangements in writing.

Communication

1. Each Parent will facilitate B communicating with the other parent at all reasonable times pursuant to B’s wishes and for this Order the Parents must:

   (a)keep each other notified at all times of their own contact number and/or B’s mobile telephone number(s); and

   (b)facilitate B having privacy during communication with the other parent.

2. Communication between the Parents concerning B, these Orders and matters of relating to major long term issues will be performed by the parenting app “Coparently” (or similar) or in writing to be agreed by the Parents (defined to mean by email, text or other means of electronic communication (e.g., parenting communication app)).

3. The Parents are each restrained by injunction from showing written parental communication to B, or discussing the contents of parental communications about B with B.

Education and Extra Curricular Activities

1. Each parent is permitted to liaise with any school that B attends to obtain information about B’s progress and to obtain from the school copies of B’s reports, newsletters, photograph order forms and all other documents ordinarily provided to parents and these Orders act as an authority for same.

2. The Parents must ensure that B attends all agreed sporting and extra curricular activities including compulsory school sporting and extra-curricular activities.

3. The Parents must ensure that B completes his current swimming lessons at the O Centre.

4. The Parents are each entitled to pre-enrol B in a high school and shall sign all documents required by the other parent for each respective school (e.g., P School in the case of the father and Q School in the case of the mother) and the ultimate school choice will be determined according to Order 2 of these Orders.

Medical

1. The Parents will ensure that B remains using the S Medical Centre or such other medical centre as the Parents may agree in writing in the future.

2. The Parents will ensure that B continues to comply with B’s asthma plan and treatment as prescribed by B’s treating medical practitioner.

3. The Parents each inform the other immediately of any:

   (a)change to medical care;

   (b)changes to B’s asthma treatment and/or medications;

   (c)prescriptions and/or treatment and/or medications generally; and

   (d)hospitalisation, significant injury or health problems suffered by B and details of any treatment received by B whilst under their respective care.

4. For any hospitalisation, significant injury or health problems suffered by B the Parents must telephone the other immediately.

5. Within 14 days of the date of these Orders, the Parents authorise and instruct each medical service or allied health service institution attended by B to release to each of them such information regarding B’s medical, allied health and dental health they may reasonably request from time to time and these Orders act as an authority for same.

Other Matters

1. The Parents are each restrained by injunction from:

   (a)denigrating the other parent or members of the other parent’s family to, or in the presence of B or generally whether or not in B’s presence or hearing

   (b)discussing these proceedings or disclosing any document produced in connection with these proceedings including this Order with B, or with any other person in the presence of B;

   (c)drinking alcohol to excess when B is spending or living with a parent;

   (d)exposing B to cigarette smoke or smoking in B’s direct presence;

   (e)leaving B unsupervised near any farming plant and/or machinery when it is in operation; and

   (f)allowing B to do any or all of these things:

   (i)using a firearm or being in the presence of anyone that is using a firearm unless the use of that firearm is in accordance with a law of Tasmania or the Commonwealth of Australia;

   (ii)riding or being a passenger on a quad bike unless in accordance with a law of Tasmania;

   (iii)being an unrestrained passenger on a tractor or similar vehicle whilst in operation undertaking farming activities;

   (iv)driving a motor vehicle prior to B having a drivers licence or being permitted by law to drive on private land;

   (g)entering on to the other parent’s place of residence or place of employment unless expressly provided for in these Orders or agreed by the Parents in writing;

   (h)discussing with any third party except where permitted under the Family Law Act 1975 for the purposes of engaging with a treating psychologist, councillor or medical practitioner any aspect of these proceedings including any matter referred to in documents filed or relied on in these proceedings;

   (i)discussing the mother’s childhood matters to and/or in the presence of B or any other person; and

   (j)committing any act of cruelty to an animal in the presence of B.

Parental Therapy

1. The Mother is to continue attending on Dr R and to follow his reasonable directions including in relation to completing any or all of the following: trauma informed therapies, including cognitive behaviour therapy, mindfulness, grounding exercises, thought challenging and therapy around The mother’s self-concept and self-esteem and/or exposure therapy for as long as he considers necessary. 

2. The father is to continue attending on Relationships Australia to complete a Parenting Orders course and counselling that may deal with matters arising from the breakdown of the Parent’s marriage.

Dr T

1. The Parents are to instruct Dr T to explain these Orders to B including in accordance with section 68P(3) of the Family Law Act 1975.

2. The Parents must continue attending on Dr T with B and to follow all reasonable directions of Dr T for as long as Dr T considers necessary or the Parents otherwise agree in writing.  

Release of Reports

1. The Parents have leave to provide a copy of the following reports to their treating therapists:

   (a)Family Report dated 10 August 2018; and

   (b)Report of Dr V dated 9 August 2018.

Costs of ICL

1. Each party will pay to the Legal Aid Commission of Tasmania $5,000.00 for the ICL’s costs of and incidental to these proceedings.

K Street, L Town

1. Upon the Mother vacating the property at K Street, L Town the father’s time with B may occur at K Street, L Town.

Compliance with these Orders

1. To the extent not already provided for in these Orders, each parent do all acts and things including but not limited to signing all documents necessary to give effect to these orders.

THE COURT IS ASKED TO NOTE

A.If B’s bike riding dates fall on weekends or times that B is to live with the father in accordance with these Orders, the father will endeavour to facilitate B’s attendance at bike events and will liaise with the Mother or her nominee about B’s attendance including collection and return to bike riding dates.

B.The Parents will make every endeavour to ensure B is not placed in an area with confined air conditioning that may exacerbate his asthma.

C.An appointment has been made for Dr T to explain these Orders to B on Wednesday, 5 September at 2:30PM.

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 & Horrigan 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 HOBART

FILE NUMBER: HBC 690 of 2017

Ms Horrigan

Applicant

And

Mr Horrigan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Horrigan (‘the mother’) and Mr Horrigan (‘the father’) have been engaged in parenting proceedings in respect of their son, B (‘the child’) age 7.  I have today made consent orders with regard to those arrangements being in the form of a minute of order signed by the Independent Children’s Lawyer and by each of the parents. 

2. When I asked the Independent Children’s Lawyer if she supported the making of the orders, she carefully and thoughtfully said she signed the orders, and I can understand why. 

3. The wife is 47 years and has been previously married.  She has three children from previous relationships who are all adults.  The husband is 64 and has previously been married.  He has four children of his previous marriage who are adults.

4. The parties have known each other for a long time, but only commenced a relationship in relatively recent times.  The parties met again in May 2009 and in September 2009 they commenced a dating type relationship.  Their relationship developed and by October 2009 they were cohabitating.  The parties married on the 6 November 2010.  There is one child of the parties’ relationship.  It is not in issue that the parties separated on 20 June 2017, which was a relationship of slightly more than seven and a half years.

5. Prior to their 20 June 2017 separation the husband and wife had the full time care of the wife’s grandson, F (‘the grandson’).  He is now aged six, and is some 18 months younger than the child.

6. On 7 April 2016, more than one year before their separation, the husband and wife jointly commenced proceedings in the Federal Circuit Court for orders formalising the parenting arrangement regarding the grandson. Those proceedings were opposed by the grandson’s parents.  There were eventually six parties to those proceedings:-

   a)the husband (the step maternal grandfather);

   b)the wife (the maternal grandmother);

   c)the wife’s daughter (the grandson’s mother);

   d)Mr U (who for many years believed he was the grandson’s father – as did the grandson);

   e)the grandson’s biological father; and

   f)an Independent Children's Lawyer.

7. By June 2017 the proceedings in the Federal Circuit Court were rapidly moving towards a final hearing.  A family report had been ordered and it was released in November 2017. 

8. In the meantime, in June 2017 the husband and wife separated in circumstances where there were allegations of violence by the husband to the wife and subsequently allegations of sexual violence by the husband to the wife.  The husband asserted that the wife was both physically, emotionally and verbally violent to him.

9. The wife commenced property proceedings in this Court on 3 August 2017.  The husband filed a response on 10 October 2017, responding to the property application and seeking orders in respect of the child. 

10. Consequently, by mid to late 2017 there were two proceedings on foot: one in the Federal Circuit Court where the husband and wife were jointly seeking parenting orders about the grandson and the second set of proceedings in the Family Court where both the husband and wife asserted that the other was not competent or safe to care for the child.  The incongruence of this was apparent to all.     

11. In that circumstance the Federal Circuit Court hearing date in respect of the proceeding about the grandson was vacated and that proceeding was transferred to the Family Court.  Both sets of proceedings were listed before me.  In the application about the child an Independent Children's Lawyer was appointed.  That Independent Children's Lawyer was different to the one representing the interests of the grandson.  The respective circumstances of the child and of the grandson were so different that one Independent Children's Lawyer for both children could have compromised the Independent Children's Lawyer’s obligation to one or both of the children.

12. At this stage there were now seven parties, including two Independent Children's Lawyers.  It was a crowded bar table and there was an extensive list of issues to be addressed.

13. When the two sets of proceedings were listed before me for trial directions on 8 December 2017 the parenting proceedings in respect of the grandson and the parenting applications in respect of the child were listed for hearing over eight days commencing 20 August 2018.  The two sets of parenting proceedings were not consolidated, but were directed to be heard simultaneously over that time in August 2018.  The evidence in each proceeding would be available to be used in the other proceeding, having regard to the provisions of Division 12A of the Act.

14. The parties to both proceedings were concerned that the property issues between the husband and the wife, which were said to need three days given their complexity, would interfere with and lengthen the time to hear the complex parenting cases.  This would have meant five of the seven parties would need to sit idly about while the husband and wife’s property dispute was being heard and argued.

15. As such the property application between the husband and wife were bifurcated from the parenting application.  The property application was listed for hearing before me for three days in May 2018.  They were in fact heard over those three days.

16. On 22 May 2018, while these property applications were being conducted, the parties and Independent Children's Lawyer to the parenting applications regarding the grandson approached this Court with terms of settlement and final Orders were made.  These orders provided that the grandson would, in a short time frame, return to the primary care of his mother.  The grandson now lives with his mother and her new partner.

1. This left the parenting applications relating to the child to be heard in August 2018.  In these proceedings there were a number of fundamental issues to which I need to address.  The first is whether the child presented as an unacceptable risk in the unsupervised care of the father, given the number of very serious assertions made by the mother.  If I had, even in a preliminary way, concluded that this was a likely outcome, I would not have made the orders that I have.  This is not to say that something has occurred or has not occurred in the past; my task is to determine whether there is an unacceptable risk into the future.

2. The second as to whether there was an unacceptable risk that the mother would alienate this child from his father because of her inability to control her temper, and her use of poor language.  I thought carefully when I read these reasons as to whether I ought to make this order because I was troubled by the evidence.  I can say this to both parties and I will be saying it directly in a more direct way when I finish this

3. That I had trouble, in terms of the credit of both parties as witnesses in this Court.  It would have presented me with a difficulty in making positive findings or even negative findings.  My task is, of course, assisted by some High Court authority which that says I ought not to do so unless it is necessary.  My task is, as his Honour Justice Tree has said on a number of occasions, risk assessment. 

4. Within the scope of the evidence that I have seen to date, particularly supported by the evidence of Dr T, the report of Dr V and the Family Consultant, I am satisfied that these orders should be made and, accordingly, I have made them.  What I am very concerned about is the need for the behaviour of both parents, and I aim it at both parents, in terms of the conflict to which this child has endured since before his birth must stop.

5. It is clear that conflict between parents and children observing conflict between parents does irreparable harm to children.  It often does greater harm than the things we talk about in terms of physical events; and in terms of other events.  This child has likely lived facing the conflict with his parents for all seven, and almost a half, years of his life.

6. When he heard swearing, he will, of course, mimic it and when he gets older and wants to form a relationship, if he uses the ‘F word’, the ‘C word’ or the other words, it is going to make his life much, much harder.  If he is taught that the way you resolve conflict is by confrontation, whether it is passive-aggressive confrontation or just plain aggressive confrontation, he will have a particularly hard life.

7. He will look back on his parents and say, “What the hell were they doing?”  It is the very question that passed through my mind as I heard this case.  In many ways, this parenting case was a continuation of the fight that started back in 2009 or 2010.  I make the orders. 

8. It is my sincere hope that this child is not exposed to any further litigation or any further conflict.  It is my hope that this child can enjoy the rest of his childhood.  He seems like a particularly nice little boy and it is not up to me; it is not up to the barristers or solicitors or the psychologists.  It is up to you. 

9. If things go wrong in the future, you will find yourself back before a judge, perhaps not a gentle one, as I am sometimes described, but perhaps a harder one, and one of you may win or one of you may lose, but what I will guarantee is this little boy will lose if you do not resolve this conflict and it is in that form that I make these orders. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 29 August 2018.

Associate:     

Date:  15 November 2018