Hearst & Cagley
[2023] FedCFamC2F 1493
•24 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hearst & Cagley [2023] FedCFamC2F 1493
File number(s): PAC 5669 of 2020 Judgment of: JUDGE STREET Date of judgment: 24 August 2023 Catchwords: FAMILY LAW – PARENTING – interim orders suspended Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021(Cth)
Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 24 August 2023 Place: Sydney Solicitor for the Applicant: Phillip A. Wilkins & Associates Solicitor for the Respondent: Gonzalez & Co Independent Children’s Lawyer: JLM Family Lawyers Pty Ltd ORDERS
PAC 5669 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HEARST
Applicant
AND: MR CAGLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
24 AUGUST 2023
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The interim parenting orders dated 5 September 2022 are suspended until further order.
2.The father shall communicate with the children on a Tuesday and Thursday from 3.30 pm to 4 pm through the parenting application, namely, Divvito Messenger, and not by any other means unless agreed in writing by the parties.
3.For the purpose of the above order, the following shall occur:
(a)the father shall be restrained from:
(i)denigrating the mother;
(ii)directing communication to the mother, either indirectly or directly;
(iii)discussing these proceedings with the children or making reference to compliance with court orders by the mother.
(b)The mother shall be permitted to supervise and terminate the communication if the content becomes inappropriate.
4.The children shall spend time with the father supervised by B Contact Service for two hours each alternate Saturday and at such times provided by this service.
For the purpose of this order:
(a)the parties shall, within seven days of the date of these orders, do all things and sign all documents necessary so as to arrange an intake assessment; and
(b)the father shall be responsible for the costs of supervision.
5.The father shall provide a list of all medical practitioners, including GPs, psychologists, psychiatrists, Community Health and specialists, attended on by the father in relation to his mental health, to the applicant’s solicitor and to the ICL within seven days.
6.The court extends time under order 3 made on 23 February 2023 up to and including 15 September.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
These are parenting proceedings under Part VII that were commenced on 23 October 2020 in relation to two children, Y, born 2020, and X, born 2018. On 23 February 2023, this Court fixed the matter for a final parenting hearing in December.
On 11 August 2023, an application was filed by the applicant mother for suspension of the parenting orders that were made in September last year that permitted overnight time with the father once a fortnight. The application for suspension of orders was supported by an affidavit dated 11 August 2023. On 15 August, this Court listed the matter today in light of the application that was filed.
Mr Gonzalez appeared for the respondent father and identified that the matter was described as fixed for mention. The Court raised with Mr Gonzalez that, given the nature of the risks identified in the affidavit, the Court was minded to consider whether or not the interim parenting orders should be suspended pending the final hearing and explored with the parties the possibility of some means of communication that might take place with the children by an appropriate app and also supervised access. Mr Gonzalez indicated that his client wished to contest the facts asserted in the affidavit via the applicant mother but that he was not in a position to do so today.
The Court asked Mr Gonzalez whether there was any current medical evidence in relation to his client’s current medical condition and he indicated there was not. When the matter was further listed before the Court at 12:30pm, a proposed minute had been circulated by the ICL and the applicant mother and Mr Gonzalez indicated his client opposed the making of any orders suspending the interim parenting orders made in September last year. Mr Gonzalez identified that there was a medical assessment document that he relied upon, which the Court has treated as being marked exhibit A, being a report from a consultant psychiatrist, Dr E, of 14 April 2023.
That report appears to have been prepared in relation to a workplace injury that occurred in 2017 in the context of the fitness of the respondent for work. The workplace stressors and challenges were said to have created an onset of depressive and anxious symptoms in 2017. Materially, in relation to current functioning, the report acknowledges that the respondent acknowledged ongoing depressive and anxious symptoms, which included a decreased interest and engagement in any previous enjoyable activities, sleep disturbance, concentration difficulties, low energy levels, easy fatigability, anxiety and restlessness. Mr Gonzalez drew attention to the reference that there were no acute risks elicited by virtue of thoughts of self‑harm, suicidal ideation or homicidal ideation. The report was obviously prepared in the context of the workplace injury. It is material, however, that the report continued:
The respondent continues to experience impairments in his psychosocial capacity towards self-care and personal hygiene, social functioning, engagement in social and recreational activities, concentration, persistence in pace and travel and employability.
The report identified that the respondent has had several appointments with a counsellor from C Organisation and has attended approximately two consultations with a psychiatrist and is apparently being prescribed medications and also allegedly prescribed medical marijuana. The psychiatric history identified is one of attention deficit disorder and another behavioural disorder. There is a reference to a diagnosis of depressive syndrome in 2009 and the report opines a diagnosis of a DSM-5, being a major depressive disorder with anxious distress and the prognosis was identified as guarded. The significance of that medical report is in the context of a detailed affidavit by the mother, which identifies, of significance, the making of an ADVO order in late 2022, another ADVO in early 2023 and, in mid-2023, the Town D Police Station were the subject of an interim ADVO, which has been listed for hearing next year.
That interim ADVO is on the basis of breach of the earlier ADVO by the respondent. The applicant mother identified a desire for the orders to be suspended until she is able to get clarity of the respondent’s situation, including that the children will be protected and looked after when spending time with him. The respondent identified having concern as to his mental health treatment and wanting to understand the courses he has undertaken in order to understand his behaviour and the extent to which he is exposing both the applicant and the children to domestic violence. There are communications that are set out that have taken place between the applicant and the respondent that, on their face, are capable of identifying conduct that could be characterised as abusive and controlling and coercive of a kind falling within the broad definition of domestic violence.
This is not the occasion for the Court to determine any issues of fact in that regard and Mr Gonzalez has not had the opportunity for his client to put on all evidence that he was intending no doubt for the purpose of a final hearing. There has, however, been sufficient notice of the fact that there was a suspension application coming before this Court. The Court does not regard the absence of at least a listing of being described as mentioned as an adequate reason why the respondent would not have been in a position to address more meaningfully the concerns being raised by the mother in relation to the breaches of the ADVOs and the mental state of the respondent.
It is not necessary to set out the communications relating to the exchanges in respect of compliance with the existing orders. It is sufficient to identify that in mid-2023 the respondent was charged with multiple counts of breach ADVO and one count of intimidation and harassment. The applicant deposed to being extremely concerned as to the respondent’s mental health and state of mind having deteriorated, leading him to act irrationally, erratically and that he has no insight in relation to his behaviour, leading to continued alleged criminal behaviour and alleged violence. The applicant expressed concern that the children are not safe in his care. There is an identification of problems that have occurred since the making of the orders on 5 September 2022 in respect of changeover, including the communications allegedly sent by the respondent and the steps that have been taken by the applicant to comply with the orders. The message of 22 June 2023 included content:
I have the steering wheel. Please, stop.
The applicant identifies that as being a suicide threat and has not facilitated time with the respondent since that message. It appears that the respondent has since then moved house and the respondent has been alleging that the applicant is in breach of the Court orders, which the applicant identifies as of being of concern in relation to the difficulty of co-parenting and the exposure to the applicant of the emotional and psychological stress impacting on her ability in that regard. The applicant has then identified unwanted communications allegedly from the respondent, including an attendance at a childcare centre and content that would suggest disclosing to the children assertions in respect of the compliance or non-compliance by the mother with Court orders.
There is also a post on a social media platform that includes inappropriate content that might be described as potentially gaslighting of the applicant mother by the respondent father. There is also other communication that identified the respondent’s mother contacting the applicant to try and identify his location and a reference to the police identifying that the respondent had been transferred to a hospital relating to his mental health. This Court has taken into account the principles and objects in s60B, the procedural principles in s69ZN, the principles in s43, the authorising of short form reasons in s69ZL of the Family Law Act 1975 (Cth) and the paramount consideration, being the best interests of the children. The Court has also taken into account the overarching purpose in s190 of the Federal Circuit and Family Court of Australia Act 2021(Cth). The Court has taken into account the principles as identified in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87]. It is not necessary in the present case to set out the whole of the statutory pathway in relation to the primary considerations and the additional considerations.
It is sufficient to identify that the greatest weight consideration is the need to protect the children from physical and psychological harm and from being subjected to or exposed to abuse, neglect of family violence. On the evidence before the court, the court is satisfied that, unless the orders currently in place in respect of interim parenting are suspended, there is an unacceptable risk that the children may be exposed to physical or psychological harm or family violence, and/or that the mother may be exposed to the same because of the mental state of the respondent.
The conduct in relation to the ADVOs and breach of the ADVOs further strengthens the court’s concern that, upon this interim material , albeit not responded to yet by the respondent, there is an unacceptable risk that warrants the interim suspension of the existing parenting orders as being in the best interests of the children. The court notes that the suspension was also supported by the ICL.
The court has taken into account that the respondent father may well have answers he wishes to advance in respect to his conduct, and the court can make final findings in that regard at the hearing listed in December.
It is also the case that the applicant acknowledged the children do have a relationship with the father and that the applicant mother wants the father to continue to be meaningfully involved in the children’s advancement.
The ICL identified concern as to the need to identify the sources of treatment that the respondent may have been seeking in order both to secure appropriate information relating to that treatment and the respondent’s mental state, as well as to ensure that the court is in an informed position in the hearing in December to make appropriate final orders.
The court does not regard the interim suspension occurring today as meaning that the court will not be in a position to make appropriate final orders in relation to the issues between the parties, and is not satisfied that this is an appropriate matter in which to list it for a further interim hearing pending the final hearing, and that such a step would not be in the best interests of the children, and that it is in the best interests of the children to make the orders proposed in the minute circulated by the ICL and the applicant. It is for these reasons the court makes the following orders.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the published ex tempore reasons for Judgment of Judge Street. Associate:
Dated: 29 November 2023
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