Hearst & Cagley (No 4)
[2024] FedCFamC2F 1799
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hearst & Cagley (No 4) [2024] FedCFamC2F 1799
File number(s): PAC 5669 of 2020 Judgment of: JUDGE STREET Date of judgment: 3 December 2024 Catchwords: FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 39 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:
3 DECEMBER 2024
THE COURT ORDERS THAT:
Procedural Orders
1.The Court grants the adjournment for this part heard parenting proceeding requested by the respondent on the following conditions:
a.The only further evidence that may be adduced by the father is as to his mental health, his compliance with Court orders and his use of cannabis
b.The Father may not further cross examine the mother unless the mother files and reads a further affidavit
2.The part heard parenting matter is adjourned for a final parenting hearing commencing at 10:00 am on 22 July 2025 continuing on till 23 July 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
3.Pursuant to s 102NA of the Family Law Act 1975 (Cth), neither party be permitted to cross-examine the other.
4.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
5.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.
6.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.
7.That the Father shall within 21 days from the date of these Orders provide a list of all practitioners and their respective addresses, including General Practitioners, Psychologist, psychiatrists, Community Health and specialists, attending on the Father in relation to his health, including his mental health, to the Applicant’s solicitors and the ICL
8.That the Respondent Father shall file and serve any trial affidavit related to his historical and contemporary medical condition and mental health, no later than 2 June 2025.
9.Leave for the Applicant Mother and the Respondent Father, (other than as set out in Order 7 above), to file and serve any further affidavit evidence in event of any new circumstances that relate to the interest of the children of the proceedings, X born in 2018 and Y born in 2020, (“the children”), arising from the date of these orders.
10.Liberty is granted to the Parties to apply on three (3) days’ notice.
Interim Parenting Orders
11.That the mother have sole parental responsibility for the children, X born in 2018, and Y born in 2020 (The Children).
12.That the Children live with the mother.
13.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.
c.The Father shall be responsible for the cost of the supervision.
d.The father shall notify the Contact Centre by email and the mother by parenting app not less than 2 days prior to his scheduled time with X and Y to confirm his attendance at the Contact Centre.
14.That the parents shall set up an account with the parenting app, “Talking Parents” 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.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.
b.The mother shall be permitted to supervise the communication and may terminate the communication if the content becomes inappropriate and the mother will communicate within 48 hours of any termination, the reasons for doing so.
15.In relation to Order 14, the Father is restrained pursuant to section 68B of the Family Law Act in any discussions with the children or in the hearing of the children from:
a.Anything related to these proceedings including proposals to relocate or future living arrangements involving him and the children
b.Denigrating the Mother or members of the Mother’s family including her son, H including blaming the mother or implying that the mother is to blame for the current parenting regime, limited access and time of the father with the children or permitting anyone else to do so.
c.Any long-term proposals he made have in mind.
d.Questioning the children about any topics outside their day to day lives, with such questioning to not including any details concerning the Mother’s residential address and information that would identify the children’s school.
e.Using the opportunity to communicate with the children as an opportunity to communicate with a mother or to convey a message to the mother, or to ask either child questions about the mother, the mother's household, conduct of the mother movements, the whereabouts of the mother, or to display-online other spaces or rooms in the mother's household.
16.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is retrained from contacting the Department of Communities and Justice, the police or any other organisation to request welfare checks or to make a complaint against the mother or to make any ADVO application against the mother without first obtaining leave of this Court by filing an application in a proceeding and a supporting affidavit explaining the alleged grounds for leave.
17.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 contact centre, F Contact Service.
18.That the mother is to advise the Department of Communities and Justice in writing and immediately should her child H born in 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.
19.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.
20.That both parents are hereby restrained from physically disciplining the children.
21.That the mother shall through “Talking Parents” provide the father with copies of the children’s school reports with any identifying details redacted by the mother.
Drug Testing
22.That within 48 hours of the date of these Orders and thereafter within 24 hours of receiving a request by email from the Independent Children’s Lawyer, the Father shall undertake random chain of custody urinalysis drug screening, as follows:
a.Such test to be a chain of custody urinalysis conducted in accordance with the Australian/New Zealand Standard 4308:2001: procedure for the collection, detection and quantitation of drugs of abuse in urine.
b.The Father shall ensure that at the time of testing, he provides the medical practitioner or pathology centre with photographic identification confirming his identity and obtain a receipt confirming that such photographic identification has been sighted.
c.In the event of the production of a drug screening report that requires further testing then the Father shall sign all documents and do all things to ensure that such further testing takes place; and
d.The results of such test are to be provided to the Independent Children’s Lawyer and the solicitor for the mother within twenty-four (24) hours of receipt by the Father or directly from the laboratory to the Independent Children’s Lawyer via email.
e.If the Father becomes unrepresented at any time (by way of a Notice of Ceasing to Act filed with the Court and served on the parties), the Independent Children’s Lawyer will send any drug test requests to the Father via email;
f.Such test to be at the sole cost of the Father;
g.The Father is to provide a copy of this Order to the laboratory on each occasion he is to attend for testing and shall ensure that provision of this Order to the Laboratory is marked on the test results.
23.That within 24 hours of receiving a request by email from the Independent Children’s Lawyer, the Father shall undertake Carbohydrate Deficient Transferring Testing (“CDT testing”) and to facilitate same, the following shall apply:
a.The Father shall attend upon a pathologist or medical practitioner to facilitate the CDT testing to be analysed using the High-Performance Liquid Chromatography Analysis Method.
b.The Father shall ensure that at the time of testing, he provides the medical practitioner or pathology centre with photographic identification confirming his identity and obtain a receipt confirming that such photographic identification has been sighted.
c.In the event of the production of a test result that requires further testing then the Father shall sign all documents and do all things to ensure that such further testing takes place; and
d.The results of such test are to be provided to the Independent Children’s Lawyer and the solicitor for the mother within twenty-four (24) hours of receipt by the Father or directly from the laboratory to the Independent Children’s Lawyer via email;
e.If the Father becomes unrepresented at any time (by way of a Notice of Ceasing to Act filed with the Court and served on the parties), the Independent Children’s Lawyer will send any drug test requests to the Father via email;
f.Such test to be at the sole cost of the Father.
24.The Father is to provide a copy of this Order to the laboratory on each occasion he is to attend for testing and shall ensure that provision of this Order to the Laboratory is marked on the test results, within forty-eight (48) hours within a request being made by the Independent Children’s Lawyer, the Father shall submit to hair follicle testing as arranged and funded at first instance by the Father and so as to provide a sample of not less than 3 centimetres to then be tested for the presence of marijuana and upon the conclusion of testing of that sample the Father shall ensure that a copy of the report so produced is provided to the mother. To give effect to this order:
a.The Father is required to maintain his head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair.
b.Within forty-eight (48) hours of the ICL’s written request, the Father is required to make an appointment with J Clinic via telephone for the purpose of providing a hair sample for the hair drug and/or testing purposes.
c.The Father or his legal representatives are at liberty to provide J Clinic with a copy of these orders.
d.The Father is to attend at J Clinic or nominee and submit to the supervised collection of a hair sample from the Father at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the mother or his legal representatives.
e.Written notice to undertake hair collection for hair drug testing purposes may be sent to the Father care of email address and shall be deemed to have been received by the Father at the date and time it is sent via email.
f.The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising J Clinic or nominee to provide the results of each test to the mother, Father and the independent children’s lawyer upon receipt of such test results.
g.The hair drug test may screen for drugs of abuse including cannabis and metabolites, THC and any other drug specified in this order as required.
h.J Clinic is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant National Accreditation body, J Clinic selection is to be based on the type of test require, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of hair Testing (SoHT) guidelines, cost and time required for results to be made available; and
i.The Father is responsible for the costs of the hair follicle drug testing.
THE COURT NOTES THAT:
A.This part heard parenting matter is a priority hearing and is not to be the subject of any double listing.
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
This is day two of a final parenting hearing in respect proceedings commenced on 23 October 2020 by the applicant mother (“the mother”) against the respondent father (“the father”) in respect of two children, X born in 2018, now five years of age, and Y born in 2020, currently four years of age. The proceedings have an unsatisfactory procedural history. The proceedings had been fixed for a hearing last year and after leave being granted to the practitioners on behalf of the father to withdraw, the Court made orders granting an adjournment for the identified purpose in its reasons of facilitating the father putting on evidence in relation to his mental health, as well as other matters, and the reasons identified the importance of him attending upon a doctor, getting a mental health regime, and addressing that in the opportunity given by the adjournment.
It is the case that it appears that the father, perhaps not fully understanding the gravity of the situation, identified a level of skiting in respect of the adjournment in a social media post, which did not assist the father. The father is currently in cross-examination. The evidence of the mother has been completed. The Court was to take the evidence of the most recent family report writer at 2 o'clock today. At the commencement of the hearing, the Court raised with all Counsel its concern in relation to the current state of the evidence in terms of the father's current mental health, whether there is any addiction problem in relation to the identified taking of medicinal cannabis, an absence of evidence of hair follicle or urinalysis testing, and the absence of satisfactory evidence as to the ability of the father to comply with Court orders.
The evidence adduced so far in the case identified that the father has had supervised access with the children in March 2024, September 2024, October 2024, and in November 2024. There was a period over which the father indicated in May 2024 that he may have no further visits. The evidence in relation to a visit in March 2024, albeit the Court is making no final findings, that the children were ecstatic to see their father. The evidence to date, uncontested, is that the children clearly have a relationship with the father, and that the father loves the children, and that the love is reciprocated.
The evidence identifies significant problems by the father in understanding the significance and impact of his conduct, starting with his lack of insight as to the current parenting regime and limited time with the children being, on one view, his fault, and due to his failure to understand and comply with his own obligations. In the course of one of the communications to the children the father encapsulated that lack of insight by his observation to the children that he cannot see them more often because of the position taken by the mother. The inappropriateness of that observation is not a matter that the Court has to dwell upon on this occasion, but it is reflective of the lack of genuine insight by the father in relation to the blame he seeks to place upon the mother for his own conduct.
The concern the Court has is that the children clearly identified enjoying the supervised visits with the father and that the father engaged properly with the children during those supervised visits, consistent with the genuine loving relationship with the children. The Court identified a concern in respect to the current state of the evidence as to the potential inability to be satisfied that the father would comply with Court orders given the conduct to date.
The Court identified a concern in relation to the absence of satisfactory evidence as to the father’s current mental health. In the course of evidence, it was identified that the father has seen medical practitioners in the context of a workers compensation claim that he has been advancing, but no steps have been taken to disclose or identify those reports, and no step has been taken to put on evidence in respect of attending upon a doctor, obtaining a mental health regime and complying with it. It was in those circumstances that the Court outlined at the commencement of the hearing today the unsatisfactory nature of the evidence and the potential adverse consequence of an order if it were to be made for continuing supervised access in circumstances where the Court cannot impose the burden on the mother or some other party to determine when the father has achieved a state of mental health that facilitates progression beyond the supervised access.
Progressing the interaction between the father and the children beyond supervised access to direct access will obviously advance a meaningful relationship between the father and the children. The statutory obligations in relation to the paramountcy of the best interests of the children, s 60CA of the Family Law Act 1975 (Cth) (“the Act”), and the factors to be taken into account under s 60CC of the Act will have a significance in relation to the final determination of the matter. It is the case though on the evidence that has been adduced that the mother has not expressed a concern that the father would physically hurt the children or deliberately hurt the children. The problem with the evidence as it currently stands is the father's lack of insight in respect of his conduct and interaction with the children of the kind the Court earlier referred to, and his perception that the current circumstances are all the fault of the mother and his lack of insight in respect of that aspect.
The Court invited an outline of position, first from Mr Sperling on behalf of the mother, then from Mr Jackson on behalf of the ICL, and then from Mr Mando on behalf of the father. Mr Sperling identified and outlined that an adjournment would be opposed, firstly because of the impact continuation would cause of these proceedings that have been on foot almost since the birth of the children, and the further delay that it would inevitably occasion, and what was said to be the potential adverse impact of that delay on both the mother and the children. Mr Sperling also made reference to the potential for further cross-examination.
Mr Jackson identified that the ICL embraced what was said by the mother and emphasised the concern as to the utility of an adjournment and, given the history of the matter, the lack of confidence that any such adjournment and the opportunity given would be complied with by the father, and that the position is one where there could be limited confidence that the steps would be taken. Both Mr Sperling and Mr Jackson identified with considerable force that the father had already had an opportunity from the orders made on 7 December 2023 to put on such evidence and that the Court had drawn the father's attention to the need to do so in the reasons that it gave, as well as identifying the earlier failure of the father to comply with the orders made in respect of a list of medical practitioners on 24 August 2023.
The Court heard from Mr Mando, counsel for the father, who identified he recognised the problems with the case as it presently stood. Mr Mando, was given the opportunity to seek instructions as to whether he wished to seek an adjournment and whether, as a condition of that adjournment, the father would agree that there would be no further cross-examination of the mother, and Mr Mando indicated the father’s willingness to agree with that condition and to agree with a regime that would permit the continuation of the supervised visits, the communication that has been taking place and facilitating an opportunity to comply with the order of 24 August 2023 in terms of the medical practitioners, to put on evidence in respect of his mental health, to put on evidence in respect of any drug testing if requested and evidence as to his ability to comply with the Court's orders.
Mr Mando then formally made an adjournment application to the Court, identifying the utility would be to address the very significant gaps that Mr Mando acknowledged exists in the current evidence. Mr Sperling and Mr Jackson opposed the adjournment and expanded on their opposition in relation to the adjournment, contending that it was not in the best interests of the children as well as the impact it would have. The Court has taken into account the objects in s 60B of the Act and the principles identified in s69ZN of the Act as well as s95 of the Act and, in relation to this application, the paramount principle to be applied is that under s 60CA of the Act, the best interests of the children.
The mother's evidence identified a willingness for the children to spend unsupervised time with the father if his mental health could be identified as being safe. The mother identified in her evidence while there were difficulties, that she could cope with the communication that was occurring on a regular basis, albeit she expressed concern as to inappropriate questions being asked by the father on those communication occasions. The mother also identified evidence that she wanted the children to have a meaningful relationship with the father if it was safe to do so.
In relation to the adjournment application, it was manifestly apparent so far as the views of the children are concerned, that they do want a relationship with their father and that they are keen for that relationship to progress. The reason it has not progressed, on one view, is due to the conduct of the father. If an adjournment were granted of this part-heard final parenting hearing, it was identified it would be on conditions that included that there would be no further cross-examination of the mother. Mr Sperling sought to clarify whether that meant the mother could not put on further evidence and would not be subject to further cross-examination. The Court made clear that was not the intention of such a condition.
The condition was intended to reflect that the opportunity is simply being given to adduce further evidence by the father, the case being part-heard, and that further evidence is of a limited kind. The cross-examination of the father has not finished, and the mother would be in a position through her Counsel to further cross-examine in respect of events if any events occur that required elaboration before the Court on the next occasion. It was not the intention of the Court, and the Court would not bind itself or the father to a condition for no further cross-examination if further fresh evidence was adduced by the mother. Consequences of that will be dealt with on the next occasion, if and when it arises.
However, taking into account the best interests of the children, the evidence identified that since September 2024, on at least three consecutive occasions leading up to this trial, the father has engaged with the orders that were made and the children have spent time with the father, and that the children have enjoyed that time with their father. The current state of the evidence is as unsatisfactory on behalf of the father as it was in December last year.
An issue was raised by Mr Sperling that it appeared there had been a legal practitioner involved, not Counsel, for a longer period than that reflecting the briefing of Counsel. Mr Mando properly identified that he had only been briefed last Friday and has only just come into the case. Regardless of what may have been the position in terms of the instructing solicitor, it is the case that the father did not have the benefit of the expert skilled Counsel now representing him until Friday of last week.
It is highly unsatisfactory that the opportunity given in December last year was not embraced by the father to put on proper evidence. There is considerable force in the opposition to the adjournment in that he has had that opportunity, however, the Court now has evidence in relation to the level of joy of the children experience in their interaction with the father and the mother's willingness to facilitate a meaningful relationship if the father can demonstrate his mental health and it is safe for the children to progress that meaningful time. That evidence creates a different picture to the picture that was before the Court in December last year.
The case is part-heard. If it were to be adjourned, it would be adjourned for a period through to either May or June 2025, convenient to Counsel. That would provide a further opportunity for the father to demonstrate his ability to comply with the Court's orders and to put on the evidence that has not been put on as to his mental health, as to his ability to progress from his medicinal cannabis and the absence of any other drug problem. It is clearly in the best interests of the children for the father to address his mental health.
That was the position in December, but the Court did not have the benefit of the apparent joy that the children have had and the ability of the father to meaningfully engage with them, and the evidence that has been adduced so far as to the mother's wish that the father was able to properly engage with the children. Mr Jackson on behalf of the ICL identified that the Court could deal with the matter on the evidence currently before it and a fresh application could be made under s 65DAA of the Act if it was able to identify new circumstances. There is force in that submission by Mr Jackson, however, the fourth principle in s 69ZM of the Act identifies conducting the proceedings in a way that will promote cooperative and child focused parenting by the parties.
The Court is of the view that permitting that further final opportunity to the father to address the significant shortcomings in the case may well give rise to him engaging in a way that will promote cooperative and child focused parenting by each parent. The Court does appreciate that it will give rise to delay. The Court understands the obligations to try and avoid undue delay, however, the impact of an adjournment on children of the current age is less significant. The Court does not accept that it will require a fresh report from the family report writer.
At this stage, the Court would be minded to await the Family Court report writer's evidence to be taken on the next occasion and the steps that have been taken by the father, the insight that it then shows, the ability to comply with the Court's orders, will all be matters that can be raised and put to the Court expert in respect of the conduct that has then occurred in relation to determining what is in the best interests of the children. The adjournment, if granted, is one where if the Court imposes the condition that there be no further cross-examination of the mother, absent the mother adducing fresh evidence, removes a burden on the mother in terms of having to re-engage with being cross-examined in proceedings that imposes a stress and strain, which the Court understands an adjournment will impose on the mother.
However, that adjournment, if granted, potentially provides the opportunity for the father to properly engage and promote a cooperative child-focused parenting by him and the mother in the children's best interests. The Court notes that Mr Jackson, in opposing the adjournment, emphasised the absence of evidence to support the willingness of the father to comply with the Court's orders. There is force in Mr Jackson's submission, however, the Court regards the evidence as to the attendance by the father in September 2024, October 2024, and November 2024 complying with the Court's orders in respect of the supervised time to identify a willingness and capacity by the father to comply with Court orders.
Had there been no such evidence of that kind before the Court, the objection by Mr Jackson would likely have given rise to a refusal of the adjournment, but that attendance at those supervised visits demonstrates that there is a capacity by the father when he understands and applies himself, and is not distracted with promoting social media posts or other limited vision of potentially blaming others for his current circumstances, to comply with Court orders. It is in those circumstances where the Court is satisfied that it is in the best interests of the children, consistent with the principles in s 69ZN of the Act as well as in s 60B of the Act, to grant an adjournment.
The Court, in that regard, has also focused on s 60CC of the Act.
The Court is satisfied that adjourning the proceedings with an interim regime that permits continued supervised visits on the current regular regime, as well as the current communications, are arrangements that will promote the safety of the children, and whilst there have been some communications that reflect a failure by the father to understand his responsibility for the current regime, the Court is confident that delivering these oral reasons will also ring home to the father the importance of the obligations that he has and the need for him to take these steps, not for himself but for his two children which the Court accepts he loves.
The Court is conscious of the fact that there is an impact on the mother in having to continue to engage in the current regime and that there has been some difficulty, in particular with the oral communications. There was, however, identified a proposal to move to a different parenting app, which the Court would impose in relation to the communications to take place with the use of the different parenting app. In relation to s60CC(2)(b) of the Act, the views of the children which have been conveyed already in the evidence to which are the Court has referred, are ones which must be measured against the very young age of the children, but the description of the children being ecstatic to see their father carries some weight in relation to granting that adjournment. The Court is also satisfied that the children have been enjoying that engagement and in relation to s 60CC(2)(c) of the Act that continuing that current supervised access and current regular oral communication does best advance the developmental, psychological, emotional and cultural needs of the children in engaging with the father in circumstances where, on one view, because of the father's own conduct, a greater and more meaningful step cannot be taken at this point.
In relation to the capacity of each party to discharge their parenting responsibility, that is, in fact, part of the reason for the adjournment in respect of the father's capacity to parent in respect of his emotional, his development, his ability to meet his parental responsibilities in an unsupervised regime progressing to overnight time. The Court is also of the view under s60CC(2)(e) of the Act that there is a real benefit for both for the children in having a more meaningful relationship with their father than currently able to do so in respect of the existing parenting regime and the potential outcome if the Court has to determine the matter on the evidence that is currently before it. The Court is also of the view that it is likely to further facilitate other people who are significant to the children being able to communicate with the children as, in fact, has occurred with the parental grandparents, and there is clearly a wider paternal family.
In all these circumstances, the Court is satisfied it is in the best interests of the children to grant a further adjournment of the part-heard hearing. The Court stood the matter down while steps were taken to address the proposed parenting orders on an interim basis by the parties.
Mr Sperling, identified a concern that the Court had foreshadowed a communication regime on which he had not been fully heard. The Court indicated it was willing to hear further submissions, and Mr Sperling put further submissions in relation to the unsatisfactory nature of the communications that had been taking place and referred to the evidence of the mother that was put on in relation to those communications, and identified a concern as to the need for communications to be recorded and the need for them potentially to be adduced on the next occasion.
The Court expressly identified that there is a new parenting app to which the parties should move which is called TalkingParents. The existing app that was in place already has a recording regime, as will indeed the TalkingParents app. There is no need for any order in that regard. The unsatisfactory nature of the communications was a matter touched on by this Court expressly identifying, for example, the reference to the absence of more time between the father and the children being due to the mother, a communication that was one of the communications that took place. The mother did identify concern as to those communications, but also in her evidence to which the Court referred identified a capacity to continue to parent, even with those communications.
Changing the current contact that is taking place through the supervised contact centre, and changing the level of regularity of those recorded communications will have an impact on the children which the Court is not satisfied is in their best interests in the circumstances to which the Court has referred. The Court does not regard the matters which have been raised as raising new issues that warrant the Court revisiting the orders that it has made, however, the Court will emphasise that when it was identifying the consequences of an adjournment, it identified that the hearing was part-heard and that the mother's counsel would have an opportunity, as would the ICL, to put any further material that is generated or that comes into existence to the father in cross-examination. It does not require a further affidavit from the mother to do so.
In those circumstances, there is no significant adverse consequence of the proposed orders in respect of the use of the parenting app changing to TalkingParents and the continued communications, and whilst the Court accepts that there has been a level of unsatisfactory conduct by the father in those communications, he has heard the oral reasons of this Court as to why an adjournment would be granted, and he has heard the Court explaining the importance of the evidence in respect of his capacity to comply with the Court orders and to engage with the steps he needs to take which currently reflect deficiencies in the evidence that would materially constrain the orders this Court might make on a final hearing.
The Court regards the matters that were raised, including by the ICL, in respect of inappropriate communications as ones that can be further refined by an appropriate restraint that goes beyond not denigrating the mother, to include not blaming the mother in relation to the current limited time that the children have with the father, and not blaming the mother for the current parental regime orders. An order can be crafted readily that ensures the oral communications are to be ones focusing on the children and not making enquiry of the children as to the circumstances of the mother and are not to be used in a way in which the father is trying to communicate with the mother, convey information to the mother or obtain information about the mother.
These matters are all capable of being the subject of identified constraint in the s 60B of the Act orders that the Court imposes. In those circumstances, the Court is satisfied that with those restraints it is in the best interests to adjourn the proceedings part-heard and to put in place an interim parenting regime of the kind the Court has identified that effectively continues the current supervised access and the current regular communications, albeit through the TalkingParents app.
After the Court determined that there should be an adjournment of these part-heard parenting proceedings, the parties consulted in relation to proposed interim parenting orders in light of the indication by the Court that it was of the view that the current regime in terms of supervision and contact should continue. The Court notes that both the mother and the ICL opposed the continuation of the current supervised access regime and wanted a longer period, and opposed the communication regime. Nonetheless, for the reasons the Court has already given, taking into account s 69ZN of the Act, the Court is satisfied that the proposed interim parenting orders now to be made are in the best interests of the children.
Mr Mando, took no issue with any of the orders other than the supervision of communications by the mother, contending that there had been a premature termination of some communications. The Court is satisfied in all the circumstances that the continuation of an order of the kind that has been in place since 24 August 2023 in the form of order 3(b) is appropriate and in the best interests of the children, given the level of conflict in telephone communications that have been identified by the mother, for example, as the Court identified in its reasons, the father purporting to blame the mother for not being able to spend more time with the children or have them overnight or see them in person. That is the type of communication that would be clearly inappropriate. The Court will impose particular restraints on the father which extend beyond those matters.
In all of those circumstances, it is entirely appropriate to permit such supervision if the mother seeks to do so, and, if the content becomes inappropriate, to terminate the call. The Court has added, though, given the nature of these part-heard parenting proceedings, a requirement that if terminated, the mother within 48 hours communicate to the father via the parenting app TalkingParents, the reasons for the termination of that communication. That type of communication will be available for the Court at the next hearing if it becomes necessary to descend into what occurred. The Court hopes, however, that the father will fully understand the importance of complying to the letter with the injunctions that are now in place and with all the orders of the Court in respect of the further adjourned hearing date, and that a failure to do so is likely to have significant consequences in respect of the orders that the Court may ultimately make in respect of the parenting matter, and that it is in the best interests of the children that the father comply with the letter of every order the Court is pronouncing.
The Court has also indicated, to avoid potential misconstruction or misunderstanding, the orders that were identified as ones to continue will be re-engrossed as if fresh orders. The Court is not vacating the orders to which the parties have identified in the proposed minutes. It is rather re-engrossing them with the amendments that the Court has identified. The Court has also taken into account s69Z in respect of these interim parenting orders.
It is for these reasons the Court makes the above orders.
I certify that the preceding thirty-nine (39) 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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