HORRIGAN & HORRIGAN

[2017] FamCA 1016

FAMILY COURT OF AUSTRALIA

HORRIGAN & HORRIGAN [2017] FamCA 1016

FAMILY LAW – CHILDREN – Interim proceedings – Husband in his Response to an Initiating Application seeks to spend time with and communicate with the child - Orders by consent that child live with the wife – Orders by consent that the child spend time with the husband as arranged between the parties and in the event there is no agreement such time as reasonably arranged by the Children’s Contact Centre

FAMILY LAW – PROPERTY - Spousal Maintenance – Interim proceedings - Application by wife for spousal maintenance  - Where wife has primary care of the parties’ child – Where the wife is found to be unable to support herself adequately – Where the husband has the capacity to provide financial support to the wife – Where orders are made that husband pay interim spousal maintenance to the wife

FAMILY LAW – PROCEDURAL – Orders made for the appointment of an Independent Children’s Lawyer – Orders made for the listing of the matter for mention on a fixed date – Orders made for the provision of documents

Family Law Act 1975 (Cth) ss 72 and 75(2)
APPLICANT:	Ms Horrigan

RESPONDENT: Mr Horrigan

FILE NUMBER: HBC 690 of 2017

DATE DELIVERED: 19 October 2017

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 19 October 2017

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

Orders

CHILDREN

UNTIL FURTHER ORDER

1. BY CONSENT B born … 2011 (‘the child’) shall live with the mother.

2. BY CONSENT the child shall spend time with the father as arranged between the parties and in the event the parties are unable to make arrangements then such time shall be as is reasonably arranged at the C Contact Centre.

3. Each party shall contact the Contact Centre within seven (7) days and:-

   (a)arrange an appointment for assessment for suitability for supervised time;

   (b)   attend the assessment;

   (c)    comply with any appointments made by the Contact Centre for supervised time;

   (d)   comply with all reasonable rules of the Contact Centre; and

   (e)    comply with all reasonable requests and direction of the staff of the Contact Centre.

4. If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days’ written notice to the other party and to the Court.  Liberty to relist the matter to apply twelve (12) months from the date of this order.

5. The Contact Centre may recommend that the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days’ notice to the other party and to the Court.  Liberty to relist the matter to apply twelve (12) months from the date of this order.

6. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the child as set out in this order at times nominated by the Contact Centre.

7. In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.

8. The father shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when the time with the child is to end.

9. The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.

10. The parties shall contribute equally to the cost of the Contact Centre.

11. 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.

IT IS NOTED

1. Parental responsibility is still governed by s 61C of the Family Law Act 1975 (Cth).

IT IS FURTHER ORDERED

1. The interests, in these proceedings, of the child be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

2. Forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by them.

IT IS REQUESTED

1. Ms Sally Rofe be appointed as Independent Children’s Lawyer given the association of this matter with a matter in the Federal Circuit Court (file HBC 252/ 2016 of Horrigan, Horrigan & Oakley).

IT IS FURTHER ORDERED

1. Leave be given for the matter to be relisted before me on the giving of two (2) days’ notice to the other party and to the Court.

2. The parenting proceedings be adjourned for mention before me at 10.00am on 8 December 2017 at Hobart.

3. Leave be given for the legal representative for the father to attend by telephone on 8 December 2017 provided notice is given to the Court, the Independent Children’s Lawyer and the representatives for the mother.

4. The mother file a Response to the father’s Interlocutory Application for parenting orders and any affidavit, within twenty eight (28) days from the date of this order.

IT IS FURTHER NOTED

1. The parties will consider whether it is appropriate to transfer the parenting proceedings currently before the Federal Circuit Court to the Family Court, either to be consolidated with these proceedings or heard parallel to them.

IT IS DIRECTED

1. The solicitor for the father forward to the solicitors for Ms Oakley, within twenty eight (28) days of the date of this order, a copy of the following documents:-

   (a)a copy of the application;

   (b)two affidavits;

   (c)statement of financial circumstances;

   (d)notice of risk of the mother;

   (e)the application in a case;

   (f)a copy of the father’s affidavit;

   (g)statement of financial circumstances;

   (h)response;

   (i)response to application in a case; and

   (j)these orders.

PROPERTY

UNTIL FURTHER ORDER

1. The husband shall pay by way of interim spousal maintenance:-

   (a)the electricity and gas on the residence in which the wife and child currently live;

   (b)the current level of health insurance for the wife and child;

   (c)the sum of four hundred dollars ($400) per week to the wife’s E Bank account BSB … Account No. …41, such payment to be paid monthly in advance, the first payment being made seven (7) days from the date of this order; and

   (d)provide credit facilities for the wife to spend up to $50 per week on fuel for her car and up to $35 per week towards the provision of telephone (land line and mobile telephone) expenses.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file

   IT IS CERTIFIED

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

INTRODUCTION

1. There is before me, an application by Ms Horrigan (‘the wife’), for a spousal maintenance order against Mr Horrigan (‘the husband’).  The parties have only recently separated.  There are allegations and counter-allegations as to violence, and there is a Police Family Violence Order in place.  The wife commenced proceedings in this Court on 3 August 2017 in which she sought orders for spousal maintenance in the sum of $645 per week, plus orders, presumably by way of spousal maintenance, that the husband pay medical insurance, electricity, gas, telephone, mobile phone and expenses for her car.

2. The husband has recently on 10 October 2017 filed material in reply, in which he raises the issue of parenting in relation to the child of the marriage, B (‘the child’), born in 2011, and a grandson, F (‘F’), who was born in 2012 (collectively ‘the children’).

3. F is a child of the wife’s daughter and there are currently proceedings in the Federal Circuit Court between the husband and wife in this case as applicants and the wife’s daughter as the respondent.  It is, it seems, agreed between the parties that F and the child have been living together for upwards of two or three years.  Earlier today, I made orders that the husband have supervised time with the child and that consideration be given to either consolidating the Federal Circuit Court proceedings in the two Courts or running them parallel in this Court.  I requested the appointment the same Independent Children’s Lawyer, and I made an order that the documents in these proceedings be made available to Ms Oakley in the other proceedings.

4. I have dealt with the children’s aspects, at least on a preliminary basis.  The application to be dealt with by me today is the spousal maintenance application.  The husband was born in 1954, and is aged 63.  He is a father.  He is in good health, although he observes in his affidavit that due to his age he is no longer able to manage the farm on his own.  I do not know that I necessarily agree with him in terms of that.  The wife was born in 1971 and is aged 46.  She is a farmer and a homemaker.  It was conceded by the husband that she has, essentially, a significant task in the upbringing of the parties’ son the child and the grandson F for whom the wife has care and the parties are engaged in the other proceedings.  F is aged five.

5. The parties commenced cohabitation in about 2009.  They married in 2010.  They separated in 2017.  There was agreement by the husband that he would pay medical insurance to cover the wife, the child and F, pending further order, and I will make that as a consent order.

6. The husband has also agreed to pay the gas and electricity for the home in which the wife is currently living.  That is the former matrimonial home, which is on a rural property outside Hobart.  What is left for the Court to determine, as I said earlier, is the question of the costs of the telephone, which the wife asserts amounts to some $75 a week.  I presume also, in addition to that, would be the internet expense of some $25 per week, which is also included.  The wife says in her financial statement that the expenses for her car are some $225 per week plus registration and insurance, although the precise figure is not included.  However, these costs form part of a motor vehicle insurance and house insurance quote set out in her second affidavit.  She also seeks new tyres and mechanical assistance from the husband for her car.  In addition, she seeks a sum of some $645 per week by way of spousal maintenance.

THE LAW

The threshold question

1. Section 72 (1) of the Act provides that:-

   A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)    by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)    by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)    for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

1. In exercising its jurisdiction under section 74 of the Act the Court shall take into account those matters set out in section 75(2) of the Act in determining whether or not to make an order for spousal maintenance, which are:-

   (a)    the age and state of health of each of the parties; and

   (b)    the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)    whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)    commitments of each of the parties that are necessary to enable the party to support:

   (i)himself or herself; and

   (ii)a child or another person that the party has a duty to maintain; and

   (e)    the responsibilities of either party to support any other person; and

   (f)     subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)    where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)    the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)     the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)    the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)     the need to protect a party who wishes to continue that party's role as a parent; and

   (m)   if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)    the terms of any order made or proposed to be made under section 79 in relation to:

   (i)the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o)    any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p)    the terms of any financial agreement that is binding on the parties to the marriage; and

(q)    the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. The Full Court in Bevan & Bevan (1995) FLC 92-600 set out the process in determining spousal maintenance applications as:-

   Taken together then, we would state the law as being that an award of spousal maintenance requires:

   1.a threshold finding under s72; 

   2.consideration of s74 and s75(2);

   3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and

   4.discretion exercised in accordance with the provisions of s74, with "reasonableness in the circumstances" as the guiding principle.[1]

   [1] At 89,981 and 89,982.

2. I have also had regard to the authorities raised by the parties, including the recent decision of McClelland J in Uzunlar & Uzunlar (2017) FamCA 111 and, of course, the well-known decision of Maroney& Maroney (2009) FamCAFC 45and the High Court decision in Hal & Hall (2016) 332 ALR. 

3. The first question for me is whether the threshold has been established.  It was conceded by counsel for the husband that the threshold had, in fact, been established, and then it is for the Court to determine the needs of the wife.  The wife asserts that she has expenses of some $1,866 per week, as set out in item 32 of her financial statement.  Unfortunately, this appears to be somewhat of an ambit claim.  I will treat it in that way, given the nature of some of the expenses.

4. I will first deal with the wife’s income.  She has income in the form of pensions, to which I have had regard, to which I have given no weight, given the impact of the law regarding that.  However, the wife earns about $173 per week from her activities in farming, and she is the owner of a property which earns a rent of about $120 per week.  I do not intend to include the whole of that rent as part of her income, because she has expenses on that property including insurance and rates and I am satisfied that it is possible for her to negotiate with her mortgagee to reduce the loan repayments on the $45,000 loan to below that which she is currently paying now.  Consequently, I am treating her as having a rental income of about $77 per week, which gives her a total income of about $250 per week.

5. In terms of the wife’s expenses, part of that has been already significantly covered by the husband in terms of paying the health insurance, providing accommodation, paying the electricity and gas.  The wife estimates that the latter two total about $100 per week.  The wife has the care of two young children, and is receiving child support from the husband of about $115 a month, which equates to about $28 per week.  In addition, she is receiving very modest child support, apparently, of about $7 per week in relation to F.

6. The wife has not provided details of the people living with her, however she apparently has some elder children.

7. They are Mr G, who is over the age of 18 years, who may or may not be coming to the home on regular occasions, and H who is 17 but turns 18 in about two months’ time.  The wife says H lives with her and she provides him with financial support.  The husband asserts that H has some sort of employment and some sort of income.  It is not clear what the actual case is in that regard.  I have treated H and Mr G, for the purpose of this exercise, as being self-sufficient.

8. The wife claims the costs of the insurance on the house and on the car of some $75 per week.  It seems to me that I have addressed at least part of the insurance costs in terms of the adjustment of her income with regard to the property.  The wife’s expenses per week are:-

   (a)car registration of $13;

   (b)food, she says of $400 a week for herself, the two children and at least her second son, so I will treat her expenses in that regard as about $120; 

   (c)household supplies I will treat as $20;

   (d)clothes and shoes, given the circumstances, of $20;

   (e)medical expenses as $50;

   (f)the internet connection as $12, given that part of that will be for the children;

   (g)pharmaceuticals as $2; and

   (h)hairdressing and toiletries as $5 per week.

1. There are obviously other expenses which are set out in the wife’s two affidavits, and her statement of financial circumstances.  I am satisfied that the wife has a reasonable need for income over and above that which is already being provided and to which I have already alluded, namely the home, the electricity, the gas and the medical insurance.  Given all of the facts and circumstances, I have assessed that to be at a rate of about $400 per week.  This includes the telephone expenses and includes the costs of running her car, given the other figures to which I have otherwise referred.

2. The question then is whether the husband has the capacity to meet any such maintenance order.  I am conscious that this is a farming business which is capital-rich and income-poor.  The husband’s income as disclosed is some $18,000.  However, there are some documents that he prepared for a loan, and I am conscious that it was prepared for the purposes of loans, and sometimes there is a bit of licence added to those; however, it seems that the business runs well.  It has many thousands of dollars from the sale of livestock and business from the farming business, and the cash flow shows a turnover of about $356,000 per year.  In that document, the husband shows some $27,500 out of that are being used in private drawings and leaves a net cash flow of about $53,000, which adds up to about $80,000 net cash on those figures.  He has the capacity to draw against an overdraft and does so on regular occasions; I note Exhibit E1 in that respect.  Given all of those circumstances and given the nature of this matter, I am satisfied that there is a capacity for the husband to meet the reasonable needs of the wife in these proceedings.  As such, I will make a separate order. I will note that these are all interim orders. 

3. I had, in relation to the fuel, the car and the telephone expenses, considered whether they ought to be included in the $400 per week.  I was troubled with the level of fuel expenses, and I was troubled with the level of telephone expenses.  As such, I intend to order that the husband make available, through accounts or through funding, the sum of $50 per week for fuel and $35 per week for telephone. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 19 October 2017.

Associate:     

Date:              7 December 2017