Hearst & Cagley (No 2)
[2023] FedCFamC2F 1713
•7 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hearst & Cagley (No 2) [2023] FedCFamC2F 1713
File number(s): PAC 5669 of 2020 Judgment of: JUDGE STREET Date of judgment: 7 December 2023 Catchwords: FAMILY LAW – PARENTING – adjournment application – interim procedural orders Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 7 December 2023 Place: Sydney Counsel for the Applicant: Mr A Blank Solicitors for the Applicant: Phillip A Wilkins & Associates Counsel for the Respondent: Mr T Iluiano Solicitors for the Respondent: Gonzalez & Co Counsel for the Independent Children’s Lawyer: Ms M Rebehy 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:
7 DECEMBER 2023
THE COURT ORDERS THAT:
1.Leave is granted for the solicitor and counsel for the respondent to withdraw from the proceedings.
2.The adjournment application by the respondent is granted.
3.The final hearing listed for today is vacated.
4.Pursuant to s 102NA of the Family Law Act 1975 (Cth), neither party be permitted to cross-examine the other.
5.The respondent file an address for service within seven (7) days of todays’ date.
6.The respondent is to approach Legal Aid to seek legal representation for the final hearing within 14 days of todays’ date.
7.The matter is fixed for final hearing commencing at 10:00am on 9, 10 and 11 December 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
8.The applicant file and serve an updated trial affidavit on or before 11 October 2024.
9.The respondent file and serve an updated trial affidavit on or before 8 November 2024.
10.The applicant file and serve an updated case outline on or before 15 November 2024.
11.The respondent file and serve an updated case outline on or before 22 November 2024.
12.The ICL file and serve an updated case outline on or before case outline 5 December 2024.
13.Leave is granted to the parties, including the ICL, to provide tender bundle material to the Court via email or USB seven (7) days prior to hearing.
14.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
15.Leave is granted to the parties, including the ICL, to have photocopy access to the material produced under subpoena subject to any proper notice of objection.
16.Leave is granted to the parties, including the ICL, to provide to the family report writer any filed material, and any material produced under subpoena to date and any further material produced under subpoena or filed after today.
17.Liberty to apply (three) 3 days’ notice.
BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
18.That the mother have sole parental responsibility for the children, X born 2018, and Y born 2020 (the Children).
19.That the Children live with the mother.
20.That the Children shall only spend time with the father as permitted in these orders as follows:
(a)At a Contact Centre only with the Contact Centre as agreed and failing agreement at F Contact Service for two hours once every three weeks, with the time and day to be arranged through the Contact Centre, the father shall be responsible for the costs of supervision.
(b)The parties shall complete the intake for supervised time within 14 days of the date of these orders.
21.That the parents shall set up an account with the parenting app, “OurFamilyWizard” for the purposes of communication and shall not contact each other by any other means except through their legal representatives, and this shall use the app as follows:
(a)Should there be an urgent and or serious medical issue for either of the children then the mother shall advise the father of the diagnosis and prognosis as soon as practical;
(b)For the father to speak with the children each:
(i)Wednesday between 3.30- 4pm.
(ii)The father’s birthday;
(iii)Each of the children’s birthday;
(iv)Christmas Day; and
(v)Easter Sunday.
22.That the father be at liberty to send to the Children letters, cards, gifts, photographs and videos on the Children’s birthdays and at Christmas to the following address: PO BOX … Suburb G NSW.
23.That the mother is to advise the Department of Communities and Justice in writing and immediately should her child H born 2008 (herein referred to as “H”) return to live in her home or be in her care in the presence of the Children on an overnight basis.
24.The mother shall ensure that an adult known to the children is present to supervise the children at all times that H is to be the presence of the children.
25.That both parents are hereby restrained from physically disciplining the children.
26.That the mother shall through “OurFamilyWizard” provide the father with copies of the children’s school reports with any identifying details redacted by the mother.
27.That the Court requests an updated Family Report to be completed by a new Family Report writer before the end of September 2024.
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
JUDGE STREET
Adjournment Application Reasons
These are parenting proceedings commenced on 20 October 2020 relevantly in relation to two children, X, born 2018 and Y, born 2020. The matter was fixed for a final hearing commencing today. The orders fixing the same were made in February. The orders required procedural steps to be taken by the respondent. It was only effectively the day before the hearing that the respondent put on his affidavit evidence.
At the commencement of the hearing, the Counsel and solicitor for the respondent attending as a result of section 102NA order that the Court has made, indicated that they sought leave to withdraw from the proceedings. Given the professional standing of the practitioners appearing, the Court was satisfied that there were appropriate circumstances that justified the application, and the Court did not require an explanation as to what the circumstances were that had created the conflict necessitating a withdrawal of representation. Suffice to say, the Court infers that there was a conflict in relation to the matter that only emerged if not yesterday, this morning with the lawyers and their client.
Section 102NA orders are intended to facilitate the legal representation at final hearings where there are serious allegations of family violence. This Court made an order that facilitated that legal representation on the day of the final hearing, being 7 December 2023. The Court is prepared to infer that the cause of the withdrawal of the representation does relate to the conduct of the respondent. However, the most important aspect in parenting proceedings are the best interests of the children. The Court has taken into account the procedural principles in section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and the objects and principles in section 60B of the Act as well as section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The paramount consideration in accordance with section 60CA are the best interests of the children. The ICL did not consent to the adjournment sought by the respondent after the withdrawal of his lawyers. That was opposed by counsel for the applicant. The respondent identified if he obtained an adjournment, he would seek to obtain fresh representation. The respondent identified that he had mental issues that were currently not resolved. Albeit he sought to attribute them to other circumstances concerning what appears to be workers compensation proceedings and not seeing his children.
Whatever the cause of the mental issues are, the respondent himself acknowledged that he currently had mental issues that impacted on his ability to parent in respect of the orders in contest in these proceedings. That observation by the respondent shows a level of insight by him in relation to his parenting obligations and it is a level of insight that identifies a willingness by him to address his mental issues in a way that might advance the best interests of the children.
Parenting proceedings are not about rights of parents. They are about the best interests of the children. The respondent’s ability to understand that and, indeed, his identification initially indicating that he was not proposing to oppose the orders shows a level of comprehension by him as to his current state and the need to address his mental health and to enhance his parenting capabilities. That is a relevant factor that the Court has taken into account weighing in favour of an adjournment in the circumstance of this case.
The Court has also taken into account that the respondent did identify a desire to advance his relationship with his children and he identified he had not had the benefit of the telephone contact that had been ordered by the Court on 24 August 2023 and he has not been able to afford the costs of the supervision that was ordered. The respondent raised the possibility of the paternal grandmother providing a level of supervision.
The circumstance of this case are one where the current medical evidence in relation to the health of the respondent is unsatisfactory. There is serious conduct that has taken place by the respondent in the sending of communications and threats of self-harm that identify grounds why, on a conservative basis, the Court would be unlikely to move directly to the paternal grandmother conducting the supervision in circumstances of the history of this matter and the evidence that has been put on by the parties. In those circumstances, the respondent’s willingness to acknowledge that the children would have to live with the mother in the meantime and his willingness to acknowledge that his initial access will have to be supervised reinforces the insight that he has displayed in acknowledging that he has a mental issue. Those are positive signs for the future and the development of a meaningful relationship with the children.
This is not a case, as Mr Blank conceded on behalf of the applicant, where the applicant is unable to parent if there was supervised access and it is a case where it is apparent that the respondent dearly loves his children and is wanting to progress a meaningful and significant relationship with his two younger children. The respondent did acknowledge that there had been serious issues with his two older children, again, displaying a level of insight in relation to the past that hopefully will assist in respect of his future parenting capacity.
Mr Blank suggested that the adjournment would cause further impact on the children. Given the age of the children, the Court does not accept that that is an issue that would carry substantial weight. The children are not of an age where the protraction of the proceedings directly is likely to have a material impact on their wellbeing. The Court does accept that it does have an impact and stress upon the applicant, but the proceedings are not about the parents. These parenting proceedings are about the best interests of the two children.
It is in the best interests of the two children if the respondent father can properly address his mental issues; can demonstrate a constructive interaction with the children at a supervised centre; and can properly participate in communications with his children in an appropriate manner over a period of time to demonstrate his parenting capability. With those steps being taken, the Court may well be able to make appropriate orders in 12 months time to further facilitate the development of a meaningful relationship for the respondent with his two relatively young children.
If the respondent has failed to take advantage of the opportunity for that supervised contact and/or fails to put on appropriate evidence as to professional help that addresses the mental issues from appropriate qualified experts, and in that regard mental health is not one in which it is just the domain of psychologists. It is psychiatrists and a doctor that should be involved in identifying a mental health plan for the respondent and his current mental health with the benefit of that psychiatric expertise and identifying his ability to implement that health plan and comply with it. These are steps, no doubt, that Mr Cagley, if given the opportunity of an adjournment, will seek to take.
If he does not, it will impact on the Court’s ability to assess whether there is an unacceptable risk from unsupervised time going into the future. The Court is always slow to create a permanent state of supervised access because it is not one that permits the progression of a significant and meaningful relationship between the children and the parent. The Court is very mindful of the desire to ensure that meaningful time restarts for the respondent. If the respondent is given the benefit of the adjournment, it will potentially advance the opportunity for the children to have that meaningful relationship with their father which is in their best interests.
It is in these circumstances where the Court has treated what has been filed and identified by the respondent; as well as by the ICL including the most recent copy of a final apprehended domestic violence order made in late 2023 that is in place until late 2025. But the Court is satisfied that an adjournment is warranted in the interests of the administration of justice in this case and that an adjournment is in the best interests of the two children in this particular case.
Accordingly, it is for these reasons the Court will pronounce the order vacating today’s hearing date and fixing it for a fresh hearing date together with other procedural orders.
Procedural Orders Reasons
These proceedings were fixed today for a parenting hearing and the Court granted an adjournment after the withdrawal of the respondent’s counsel and solicitor.
At the time of delivering reasons for the granting of the adjournment which gave to vacating the hearing date, the Court had assumed there was in place a section 102NA order. In fact, the absence of the 102NA order would have almost been an inevitable reason why an adjournment should have been granted in the interests of the administration of justice. Given the history of the matter, this is one where, inevitably, a section 102NA order should have been made if the parties were to be unrepresented.
It is most unfortunate that there has been an adjournment. However, the Court identified in relation to the adjournment that there are other steps that the respondent may be able to take that will enhance the ability of the Court on the next occasion, which will be a final hearing, to identify whether there is any real, unacceptable risk in relation to the two children in progressing meaningful time beyond the supervised regime that is provided for in these orders.
In that regard, the Court has mentioned to the respondent, although not the subject of an order, the importance of attending on his GP, preferably within the next 14 days to get an appropriate referral to an expert and to get a mental health plan and to identify and record the steps he is taking to comply with the same for the purpose of the hearing on the next occasion. The Court has also emphasised the importance of participating not just in the MyFamilyWizard communications with the children but also, with the supervised visits so that the Court has on the next occasion the benefit of consistent, compliant and appropriate attendance and interaction between the father and the children which it can take into account in evaluating the issues that might arise on the next occasion.
It is very much to the credit of the respondent that he has also, on this occasion, consented to these interim orders in relation to the next final hearing. What that again reflects is a level of understanding by the father of the focus of the Court on the best interests of the children. It is a relevant factor which will be taken into account at the final hearing.
Although there were questions raised by the father on one or two of the parenting orders, he ultimately identified consenting to all the parenting orders on an interim basis. The Court regards that as showing a level of insight by the father in relation to the most important aspect of these proceedings that they are about the children and the best interests of the children and the Court is appreciative of the insight that he has displayed.
That is not to diminish the insight that it is apparent has also been brought to bear by the applicant mother in consenting to a regime that facilitates the potential advancement of a meaningful relationship between the children and the father. The Court is also appreciative of the assistance that has been provided by the practitioners and, in particular, the ICL and counsel for the ICL.
For these reasons the orders entered up have been made.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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