Hearst & Cagley (No 3)
[2024] FedCFamC2F 1763
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hearst & Cagley (No 3) [2024] FedCFamC2F 1763
File number(s): PAC 5669 of 2020 Judgment of: JUDGE STREET Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed. Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 2 December 2024 and 3 December 2024 Counsel for the Applicant: Mr C Sperling Solicitor for the Applicant: Phillip A Wilkins & Associates Counsel for the Respondent: Mr M Mando Solicitor for the Respondent: Mic Lawyers Counsel for the Independent Children's Lawyer: Mr N Jackson Solicitor for the 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:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The oral application for recusal made by the Respondent is dismissed.
THE COURT NOTES THAT:
A.The recusal application was not supported by either Counsel for the Applicant or Counsel for the Independent Children’s Lawyer.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings that were commenced on 23 October 2020. They were listed to commence today for a parenting hearing in terms of final orders. This Court made orders on 7 December 2023, requiring procedural steps to be taken in respect of the adjourned hearing, albeit the date was slightly varied, to be taken by the respondent. Those orders materially addressed the respondent putting on up-to-date evidence. There were reasons for judgment that were published orally on 7 December 2023 and the settled reasons were made available on 20 February 2024.
In those reasons the Court identified in relation to the adjournment that the practitioners representing the respondent father (“the father”) had withdrawn. The Court did not know the full circumstances in relation to that withdrawal. The Court identified in its reasons that there were significant issues in relation to the mental health of the father which, in the course of argument he acknowledged, that may impact on his ability to parent. The Court regarded that observation and identified in its reasons as showing a level of insight by the father in relation to his parenting obligations and identifies a willingness by the father to address these mental health issues in a way that might advance the best interests of the children. The Court identified that the current medical evidence in relation to the health of the father is unsatisfactory, a factor that was taken into account in considering an adjournment and hopefully progressing, as the Court understood the position at that time, the development of a meaningful relationship.
The Court made reference to the father acknowledging that there have been serious issues with the children, again displaying a level of insight in relation to the past that would hopefully assist in relation to his future parenting. The Court identified in paragraph 11 that it was in the best interests of the two children if the respondent father can properly address his mental health 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 capacity.
The Court continued, 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 father with his two relatively young children. The Court identified the need for potential mental health to be addressed by psychiatrists and a doctor, and that these were steps that, no doubt, could be taken by the father given the opportunity of an adjournment. It was in those circumstances that an adjournment was granted.
An affidavit by the applicant mother (“the mother”) dated 11 November 2024 identified events following the first day of trial on 7 December 2023 and what was said to be a social media post by the father, which relevantly be provided
147. [Mr Cagley] posted a video recording of himself on his public [social media] profile that was intimidatory. He told the public that he had successfully manipulated the Court, that he was proud of his manipulation of the court and that he was essentially 'coming for me'. [Mr Cagley] had [a song] in the background and said words to the following effect:
"Nah sweetie, I knew exactly what I was doing in court today. Got my lawyers to quit their arse so I could play that card right out the window; oh yeah! Got it adjourned for another year; that's perfect. Got visitations. Sweet. Got communication even better. See. Now, when you play hard you don't get too far but when you play smart that's a different fucking story isn't it. I tell you what I played fucking smart today didn't I. I made sure to do what was needed extending this so I can make sure I bring everything shit to bare in the next year with a lawyer that is not legal aid sweetheart. You wanted it done before work cover finished up so I didn't have any money to my name but by the end of next year isn't going to be no fucking legal aid. Ill tell you what, I'm going to bring every fucking inch so I can bare down on you and you are not going to like what we have. "
The content of the social media post identifies obvious concern as to whether the cause of the adjournment was deliberate conduct by the father and identified what appeared to be the father’s comments about how clever he was in obtaining that adjournment and his intention in relation to the future, all of which might be characterised as potentially an endeavour by the father to manipulate the Court. What is of concern to the Court is that the social media post is inconsistent with the communications being conveyed by the father at the time of the adjournment of a desire to address the shortcomings in his evidence and a genuine insight in relation to his earlier conduct and a genuine intention to comply with the opportunity being given to him to put on.
When the matter was called this morning, this Court admitted into evidence the competing affidavits and identified for Counsel, who was apparently briefed on Friday with no notice of address for service yet on file, the Court was informed by its solicitor it has been filed. As he was instructed on Friday, there is no up-to-date affidavit evidence or step that has been taken to address the apparent unsatisfactory state of the applicant’s mental health a year ago. It was in those circumstances that the Court made the observation that it was very concerned by the social media post and also made the observation that it was considering whether or not it should permit cross-examination in the context of non-compliance with its orders.
The Court heard submissions from Mr Sperling on behalf of the mother, suggesting that the matter should proceed as an undefended hearing, and from Mr Jackson on behalf of the Independent Children’s Lawyer, identifying that it would not be a procedurally fair process to undertake, given the appearance, attendance and representation of the father. Following that, the Court identified that it would not make any order because of the non-compliance with its orders preventing cross-examination by the father.
When the matter came back before the Court after an opportunity for discussions between the parties, Counsel for the father made an application for disqualification on the grounds of alleged apprehended bias on the basis of two factors. The first being a reference by the Court to the fact that it was very concerned by the social media post of the father identified in the mother’s evidence, and secondly, raising the issue as to whether or not the father’s Counsel should be permitted to cross-examine when there is non-compliance with the Court’s orders. A fair-minded lay observer would be alive to the context in which Court’s come to exercise powers in relation to the history of a particular matter. The Court has taken into account the principles in respect of the double might test established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [344]-[345].
In relation to the first factor in respect of the social media post following the adjournment on 7 December 2023, the Court was identifying a matter in the context of the process that would be followed in respect of the hearing. A social media post suggesting that the Court had been manipulated was an obvious matter to identify as of concern in the context of what procedural orders might be made. A fair-minded lay observer would readily understand that the father’s non-compliance with the Court’s orders would be impacted by conduct that appears to identify a deliberate course of conduct to try and manipulate the Court in respect of the orders that were made. It was in that context that the reference to the social media post was relevant to the non-compliance, and a fair-minded lay observer would recognise the logical connection between the two.
The consequences of non-compliance with the Court’s orders do enliven a broad range of potential orders that can be made. In circumstances where, from the history identified, there was a question mark over the genuineness of the circumstances on which the adjournment was obtained and where no updated affidavit evidence has been filed by the father in compliance with the Court’s orders, the Court does not accept that a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits by reason of the conduct identified.
Accordingly, the oral application for recusal is dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 16 December 2024
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