Hearst & Cagley (No 5)
[2025] FedCFamC2F 1055
•31 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hearst & Cagley (No 5) [2025] FedCFamC2F 1055
File number(s): PAC 5669 of 2020 Judgment of: JUDGE STREET Date of judgment: 31 July 2025 Catchwords: FAMILY LAW –Parenting-father mental health -not properly managed over seven and half years- lack of empathy for children/mother- lack of insight- continuing denigration of mother- high likelihood of undermining or destroying primary carers relationship - lack of parenting capacity- unacceptable risk – identity time only Legislation: Family Law Act 1975 (Cth) Cases cited: B and B [1993] FamCA 143
Bielen & Kozma (2022) FLC 94–123
Champness & Hansen (2009) FLC 93-407
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
Slater & Light [2013] FamCA 4
Division: Division 2 Family Law Number of paragraphs: 530 Date of last submission/s: 23 July 2025 Date of hearing: 2 December 2024, 3 December 2024, 22 July 2025 and 23 July 2025 Place: Sydney 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:
23 JULY 2025
THE COURT ORDERS THAT:
1.All interim parenting orders are vacated.
2.That the mother have sole parenting responsibility including all major long term issues for the children X born in 2018 and Y born in 2020 (“the children”).
3.That the children live with the mother.
4.That the children spend time with the father on four occasions each year at a contact centre to be facilitated as follows:
4.1The father shall advise the mother in writing of the contact centre to facilitate the time on the second Saturday or Sunday in January, April, July and October each year at least 14 days prior to the time occurring;
4.2The contact centre to facilitate the time shall be in the Sydney Metropolitan area;
4.3 The mother shall within 48 hours of being advised by the father that the time is to occur shall make contact with the centre and complete intake;
4.4 The father shall be solely liable for the costs of the contact centre.
5.The parents are to use the parenting app, “Talking Parents” for the purposes of all communications pursuant to these Orders only and shall use the app as follows:
5.1 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;
5.2 For the father to speak with the children between 6.30pm and 7pm:-
5.2.1 On the last Sunday of each month;
5.2.2 On Father’s Day;
5.2.3On each of the children’s birthdays;
5.2.4On Christmas Day; and
5.2.5On Easter Sunday.
5.3 That the father shall confirm that the communication is to occur pursuant to Order 5.2 herein to the mother in writing 48 hours prior.
5.4That the children’s communication with the father will not occur unless Order 5.3 herein has been complied with.
5.5 That the mother be permitted to supervise the communication and may terminate the communication if the content becomes inappropriate and the mother will communicate within 48 hours to the father of the reason for the termination.
6.That the father be at liberty to provide to the children at the contact centre pursuant to Order 4 herein letters, cards, gifts and photographs on the closest date to the children’s birthdays and at Christmas and the mother is to ensure that all appropriate items given to the children by the father are provided to the children.
7.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 and or be in her care in the presence of the children on an overnight basis.
8.That the mother is hereby restrained from leaving the children in the presence of H without her direct supervision at all times.
9.That the mother shall continue to engage the children with counselling, therapy or psychological support as recommended by the children’s general practitioner.
10.That on a without admissions basis, the mother is hereby restrained from physically disciplining the children.
11.That the mother is to provide to the father redacted copies of the children’s school reports for each semester.
12.That the Applicant provide a copy of these Orders to the Department of Communities and Justice.
13.Pursuant to s 68B(1)(a) and 68B(1)(b)(i) of the Family Law Act 1975 (Cth), unless expressly permitted by these Orders, the father is hereby restrained by injunction for the personal protection of the mother and children from the following:
13.1Approaching the mother at any time;
13.2Approaching the children, unless expressly permitted to do so by these Orders;
13.3Contacting the mother or children directly or indirectly, unless expressly permitted by these Orders;
13.4Approaching within 200 metres of the mother’s home, the mother’s workplace or the children’s school or the children’s extracurricular activities;
13.5 Posting any photographs, video or audio of the children or the mother on any public electronic platform or on Facebook;
13.6 Posting any information or document in relation to these proceedings on any public electronic platform or on Facebook.;
13.7 Using any pseudonym to post any material pursuant to Order 14.5 and 14.6 above;
13.8 From trying to ascertain the mother’s residence, the school of either child or the location of any school activities for either child.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth) both parents are hereby restrained from denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person doing so.
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained in any discussions with the children or in the hearing of the children from:
15.1Anything related to these proceedings including proposals to relocate or future living arrangements involving him and the children
15.2Denigrating 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.
15.3Any long-term proposals he may have in mind.
15.4Questioning the children about any topics outside their day to day lives, with such questioning to not include any details concerning the Mother’s residential address and information that would identify the children’s school.
15.5 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 restrained from contacting the Department of Communities and Justice, the police or any other organisation to request welfare checks based upon any historical complaint against the mother leading up to the date of these Orders and a copy of these Orders is to be provided to the relevant authority at the time of request.
17.The Independent Children’s Lawyer is hereby discharged.
18.No order as to costs of the Independent Children’s Lawyer.
19.Time to appeal will not commence to run until the Court has published its written reasons.
20.The Court reserves its written reasons
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).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These parenting proceedings were commenced by the applicant mother (“the mother”) on 23 October 2020 against the respondent father (“the father”). There are two children of the relationship, X, born in 2018, now six years old, and Y, born in 2020, now five years old (“the children”).
The final parenting hearing commenced on 2 December 2024 and continued onto 3 December 2024, when it was adjourned until 22 July 2025, and concluded on 23 July 2025. The Court made interim parenting orders on 3 December 2024 for the children to spent two hours once every three weeks at a contact centre at Suburb K. Pursuant to those orders the father spent time with the children on 14 December 2024, 14 February 2025, 7 March 2025, 31 March 2025, 11 April 2025, 9 May 2025, 30 May 2025 and 20 June 2025.
The Court had earlier made by consent parenting orders on 5 September 2022. On 23 February 2023 the matter had been fixed for a final parenting hearing for 7 and 8 December 2023. On 24 August 2023 the Court suspended the interim parenting orders and ordered supervised time through a contact centre and use of a parenting app for communications and required a list of all practitioners that were attended upon by the father to be provided to the mother’s solicitor and the ICL within 7 days.
Whilst initially there were issues joined between the parties of a broader nature, in final addresses there was no issue in respect of the mother having sole parental authority, including all major, long-term issues, and no dispute that the children live with the mother. The mother and the ICL pressed for orders, in essence, providing for identity contact between the father and the children four times a year with electronic communication on the last Sunday of each month, Father's Day, the children's birthdays, Christmas Day and Easter Sunday, and relevant restraints under s 68B of the Family Law Act 1975 (Cth) (“the Act”).
The father, who had since early 2025 seen the children at a supervised contact centre almost every third week, pressed for a continuation of the current supervised contact and the increasing of that time to unsupervised time and then overnight time every second weekend and half the school holidays.
On 23 July 2025, having heard the oral submissions and having concluded it was in the best interests of the children to do so the Court pronounced the above final parenting orders for identity contact only, vacating all earlier interim parenting orders and the Court reserved its written reasons.
CHRONOLOGY
The Court finds the following events occurred:
Date Event 2004 Birth of father’s child, Mr L,from a previous relationship. 2008 Birth of father’s child, M, from a previous relationship. 2008 Birth of mother’s child, H, from a previous relationship. 2013 Birth of mother’s child, O, from a previous relationship. 2014 The parties first meet. In 2016 Mother moved out of her house and moved into father’s house at N Street, Suburb P (with H and O). Late 2016 Mother moves out of father’s house at Suburb P and back to her mother’s housing commission residence at Suburb Q (with H and O). Docs remove the children, Mr L and M, from father’s care.
M and Mr L are placed within the care of the Minister until they are 18 years of age, following Court orders.
Early 2017 Mother moves to R Street, City S. Mid 2017 Father follows her to City S, moves in with her and their relationship resumes. September 2017 M and Mr L are taken into care by Family & Community Services as a result of excessive physical punishment and neglect whilst in their father’s care. In 2018 The father’s behaviour continued to fluctuate and he became more controlling of the mother. The father wouldn’t let mother leave bedroom and to escape the mother ripped TV off the wall and threw it to the ground. 2018 The parties first child, X, is born. By 2019 Father loses contact with his doctor in Region T and is entirely off his medications.
Father became more abusive. Calling mother names, such as, “pathetic”, “bitch”, “stupid” and “useless”.
2020 The parties second child, Y, is born. August – September 2020 Parties’ relationship breaks down. Father is not attending counselling appointments made by mother.
Mother asked father to leave but he refused.
30 September 2020 Father refuses to move into temporary accommodation.
Father tries to barge back into the house physically assaulting the mother by pushing and shoving the mother out of the room grabs mother by both arms and throws her backwards. Mother receives bruising to elbow and upper arm.
Police called and attended.1 October 2020 Parties separate.
Father retains X.
Shortly after mother receives termination notice from landlord being the father’s friend.
11 October 2020 Father sends SMS text to mother offering to return X to her care “if I had sex with him”. October 2020 H (then approx. 11 – 12 years old) exposes himself and made inappropriate actions with his penis.
Mother reports incident to DCJ.
4 November 2022 Children spend overnight time with father. 13 November 2022 Father makes manipulative and threatening Facebook post stating: “soon I will be gone leaving everything behind me and friends please don’t worry about me. I a fine wherever I am if I need you I will let you know. Even know you all are the reason for me leaving besides 1 person who will know where I will be and when. Please don’t call me please don’t text me to see if I’m ok if I was ok, I would not be leaving you all behind to find peace this is my goodbye” 15 November 2022 Mother receives manipulative image of father in hospital hooked up to a machine and message: “off to hospital I go”. 19 November 2022 Father refuses to effect changeover at parties’ household and “stated for his personal safety, changeovers would have to happen elsewhere”.
Mother alleges changeover altered to occur at U Store at Town QQ and later U Store at Suburb V.
Mother agrees to changes of location of changeover at last minute demanded by father.
5 December 2022 The father sends the following manipulative and gaslighting text message to mother: “you know you wonder why I speak to you the way I do sometimes it’s the absolute lack of respect you have for me as the children’s father right you have a 90% of the timer and you can’t let me have one time every two years a little bit of time with my children so I can actually have a Christmas right you want to fight and argue you wonder why I speak to you like this its not the fact that I just want to disrespect you and I’m so disrespectful it’s the way you treat me and the things you do and say that set me off to make me want to fucken swear at you and call you nasty s*** and raise my voice because you can’t just speak and beef that you have 90% of the time with the children and can’t give me until 114 on Christmas day once the fucken year every 2 years”. December 2022 The father sends the mother two threatening voice message and the following coercive text messages: “I’m done please let me say goodbye to my children”.
The father sends manipulative screenshot of email to mother of the following communication with his lawyer: “I thank you for your time and effort in the work you have done but I am now done with court. I will no longer be attending mediation or any other court dates or require your services”.
December 2022 The father sends the following threatening text message to mother: “I swear I am done [Ms Hearst] I swear whatever you want in the orders u will get I won’t be there I swear I won’t contact you in any way again I will not bother you in any way again I will not have anything to do with you at all again as long as you pick up and let the recording play; how about I drive down some time and play it over my car sound system so you and everyone that live around you can hear it; that way I know you could hear it and so can the rest of the world so they can judge you how you judged me”. December 2022 The mother receives inappropriate and coercive text message from the father’s phone written in third person, including intimate images of the mother that she had previously sent to the father, along with the following message: “Dam girl can I get a bit”. December 2022 The father sends the following threatening and manipulative text message to mother: “[Ms Hearst], you have full custody, full responsibility. I no longer have anything to do with the children, yourself or anything else at all, and yes, I plan on killing myself sometime very soon OK. I plan on jumping on my motor bike and riding somewhere extremely far and probably ploughing into something extremely quickly because I AM FUCKING OVER THIS SHIT WITH YOU. I am done, you have broken me enough. No matter how much I have tried to sort things out you have tried to kick me in the fucking guts and putting me down. I do everything I possibly can for you, and it is never fucking good enough. Or because of this ire cause of that, you are just making up excuses because you don’t have the fucking guts about things you really want to say how about you just say what you really want to say instead of just fucking pussy footing around like you normally do and sugar coat and she and make it taste like fucking candy right. You want what you want, and you just want to fuck me so yes soon this will be your fault. It’s your fucking fault”. Late 2022 Father admitted to Z Hospital as a result of suicidal ideation and discharged the same day. Late 2022 Provision ADVO made for the protection of mother. 16 December 2022 The father spends time with the children. 24 December 2022 The father spends times with the children. Late December 2022 – early January 2023 The father did not spend time with children. Mid-January 2023 The father spends time with children. 23 February 2023 Pursuant to order 1, the matter is fixed for a final hearing on 7 – 8 December 2023. 24 February 2023 The father sent a tirade of messages to the mother professing his love for her and a goodbye message. March 2023 The father sent a letter to the mother’s residence and contained the following: “I would have done anything for you” and “there is nothing I would not do to have a life with you”. Early 2023 The father is admitted to Z Hospital as a result of suicidal ideation and discharged on the same day. 14 April 2023 Dr W psychological report -major depressive disorder – prognosis guarded given enduring severity and chronic psychiatric symptomatology- continues to experience depressive and anxious symptoms 5 and half years subsequent to stopping work- father prescribed medicinal marijuana 24 August 2023 Orders made as follows:
Order 1 - Interim p[a renting orders dated 5 September 2022 are suspended until further order.
Order 2 - The father shall communicate with children for 1.5 hours through parenting app, Divvito Messenger, and not by any other means unless agreed between parties.
Order 4 - the children shall spend supervised time with father at B Children’s Contact Services for two hours each alternate Saturday and at such times provided by this service.
Order 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 mother’s solicitor and to the ICL within seven days.Mid-2023 The father is admitted to Z Hospital as a result of an overdose and discharged on the same day. 10 June 2023 The father told the children during a phone call that it was the mother’s fault that they haven’t seen the father. 19 June 2023 The father sent an SMS text message to the mother pleading with her to drop ADVO. 22 June 2023 The father sent threatening SMS text message to mother as follows: “I have the steering wheel please stop”. Mid-2023 The father is admitted to AA Hospital by referral of Town BB police following threats of self-harm. Mid-2023 Father breach of bail established – conditions for protection of mother City CC Local Court
The father is discharged from AA Hospital.Mid-2023 The father is admitted to AA Hospital as a result of suicidal ideation. Mid-2023 The father is discharged from Town BB Acute Care Team. Mid-2023 Father two breaches of bail established – conditions to protect mother-Town BB Local Court Late 2023 The father is admitted to DD Centre at Z Hospital. 2023 Father two breaches of bail established – conditions for protection of mother- Town BB Local Court
The father is discharged from DD Centre at Z Hospital.
The father is admitted to MH Acute Care Team at AA Hospital.Late 2023 The father is discharged from MH Acute Care Team at AA Hospital. Late 2023 Final ADVO for protection of mother from father not to go within 100 m of any place where the mother lives or works until late 2025 Late 2023 Father breach bail conditions to protect mother – City CC Local Court 7 December 2023 Pursuant to order 3, the final hearing listed 7 – 8 December 2023 is vacated.
Pursuant to order 7, the matter is listed for a final hearing on 9 – 11 December 2024.
January /February 2024 The father posted an intimidatory and manipulative Facebook video recording in which he stated the following: “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”. January /February 2024 The father posted the following threatening and abusive comment on his Facebook profile: “…Here I motherfucking am bitch, time for you to run and hide; cry like a baby and lie. Enjoy your life. After I’m done you will realise what you did was wrong and pushing someone to the point they would rather die then be alive for there children…”. Early 2024 The father attends Personal Injury Commission for medical assessment. Early 2024 Medical Assessment Certificate produced for father by Dr EE. 16 February 2024 The father posted a video on his Facebook profile of the mother giving birth to X without her consent or knowledge.
The father made threatening comments on Facebook that he would “…upload everything uncut every fight the birth of [X] every photo of you me the kids, every text I have every recording, Good bye [Ms Hearst]”.
2024 Father two contraventions AVO release without conviction 12 months good behaviour from Early 2024 to Early 2025 by Suburb FF Local Court Early 2024 Father two contraventions AVO released without conviction 12 months good behaviour Early 2024 to Early 2025 by Suburb GG Local Court 2 May 2024 Family report is produced by Court Child Expert, Ms HH. Mid-2024 Father breach of bail established conditions to protect mother – City JJ Local Court Late 2024 Father found to have engaged in three contraventions of AVO’s fined $400, $200, and $400 27 September 2024 Pursuant to order 1, the final hearing listed on 9 - 11 December 2024 is vacated.
Pursuant to order 2, the matter is listed for a final parenting hearing on 2 – 4 December 2024.
2 – 4 December 2024 Parties attended defended hearing before Judge Street.
The final parenting hearing is adjourned part heard and is listed to recommence on 22 – 23 July 2025.
3 December 2024 Interim parenting orders are made and commented pursuant to slip rule. 14 December 2024 Father spends time with children. 9 January 2025 Father attends psychological appointment of Mr KK. 17 January 2025 A schedule visit was arranged but the father did not attend. 23 January 2025 Father attends psychological appointment of Mr KK. 24 January 2025 A scheduled visit was arranged but the father did not confirm his attendance and the visit subsequently did not occur. 31 January 2025 A scheduled visit was arranged but the father did not confirm his attendance and the visit subsequently did not occur. 6 February 2025 Father attends psychological appointment of Mr KK. 14 February 2025 A scheduled visit is arranged and the father spent time with the children. 20 February 2025 Father attends psychological appointment of Mr KK. 25 February 2025 Father undergoes hair follicle testing. 7 March 2025 A scheduled visit is arranged and the father spent time with the children. 31 March 2025 A scheduled visit is arranged and the father spent time with the children. 9 May 2025 A scheduled visit is arranged and the father spent time with the children. 26 May 2025 Mr KK’s psychological report is produced. 30 May 2025 A scheduled visit is arranged and the father spent time with the children. 20 June 2025 A scheduled visit is arranged and the father spent time with the children. 1 July 2025 Father undergoes hair follicle testing for a second time. 3 July 2025 Dr LL from MM Clinic sent a letter to the father confirming that he has reduced his use of medical cannabis from 130 grams to 80 grams. 14 July 2025 A scheduled visit is arranged and the father spent time with the children. 19 July 2025 Father files most recent affidavit. 22 - 23 July 2025 The part heard final parenting proceeding recommences.
EVIDENCE
The mother and father both gave evidence and were cross-examined. The Court child expert, Ms HH, who issued a family report dated 30 April 2024 also gave evidence.
The Court received into evidence the following affidavits, with annexures treated as being in evidence:
(1)Affidavit of Ms Hearst dated 11 November 2024;
(2)Affidavit of Ms Hearst dated 10 July 2025;
(3)Affidavit of Mr Cagley dated 5 February 2023; and
(4)affidavit of Mr Cagley dated 8 July 2025.
The Court received it into evidence the following exhibits:
(a)Exhibit A: Family Report of Ms NN dated 19 August 2022;
(b)Exhibit B: Family Report of Ms HH dated 30 April 2024;
(c)Exhibit C: Independent Children’s Lawyer Tender Bundle Part A;
(d)Exhibit D: Independent Children’s Lawyer Tender Bundle Part B;
(e)Exhibit E: Respondent Father Notice of Child Abuse, Family Violence or Risk of Family Violence dated 23 October 2020;
(f)Exhibit F: Applicant Mother Notice of Child Abuse, Family Violence or Risk of Family Violence dated 12 October 2020;
(g)Exhibit G: Applicant Mother Tender Bundle;
(h)Exhibit H: Applicant Mother Proposed Minute of Orders;
(i)Exhibit I: Applicant Mother Supplementary Tender Bundle;
(j)Exhibit J: Independent Children’s Lawyer Supplementary Tender Bundle;
(k)Exhibit K: Report of Dr W dated 14 April 2023; and
(l)Exhibit L: Independent Children’s Lawyer Proposed Minute of Final Orders.
MOTHER’S EVIDENCE
The further consolidated trial affidavit relied upon by the mother, filed on 11 November 2024, identifies that the mother is presently 32 years of age and that the father is presently 39 years of age. The mother identified the relationship as commencing around 2014 and separating on a final basis in late 2020. The mother identified the two children of the relationship: X, now aged 6; and Y, now aged 5. The mother said that she was the primary carer. The mother explained she had two other children: H, who suffers from disabilities and mental health issues but is not currently under her care and has been in the Minister's care since October 2023, and her other child O.
The mother identified that H is residing at an alternative care arrangement where he is cared for by support workers 24/7 and that all contact between H and the two children subject to these proceedings are supervised. The mother stated she had no intention or interest in allowing H to come into contact with X and Y in an unsupervised capacity and that she undertakes to always be present or have an adult present when the children are spending time with each other. The mother identified that O's father is deceased.
The mother identified that the father has two children from a previous relationship, M and Mr L, who have been removed from his care. The mother identified that M was violent and aggressive even when the mother had Y in her arms; and that M did not follow rules and boundaries set for children; and that on one occasion, the mother was pushed up against a wall by M, who made threats to kill her. The mother believed that M would carry out her threats and called the police and obtained an apprehended violence order from the City S Local Court in late 2020. The mother deposed that M used the ADVO to leave the father's care and indicated that she was afraid she would breach it as she could not control her anger. The mother notes that M was scheduled under the Mental Health Act soon after she left.
The mother said the relationship became intimate in around 2016 and that she moved out of her house, into the father's property at N Street, Suburb P at around that time, and at that stage H was then aged eight and O was age three. The mother identified the father at that time was in difficulties with the Department of Community Services regarding his own two children, M and Mr L. The mother stated she believed the father got her to move in so as to improve his chances with DoCS.
When the mother moved in, she saw a great deal of abuse and neglect, including the father hitting the children with objects, dragging them, threats and verbal abuse. The mother said the father's children were neglected, but there was nothing she could do to turn the situation around because the father was so controlling. The mother said that she was shocked at what she saw and moved out soon after. The mother identified that the father then lost his job and suffered a mental breakdown from work. The mother deposed that the father went on medication which calmed him down, but did not alleviate the other problems.
The mother identified that in late 2016 she moved out and back to her mother's Housing Commission residence in Suburb Q with H and O. The mother stated that soon after that DoCS removed M and Mr L from the father's care. The mother believed that there were orders made placing the children under the parental responsibility of the Minister until they were 18.
In early 2017, the mother indicated she was not getting along with her mother, so she moved to City S, to get out of Suburb FF and give the children a better future and leased a property from City S Real Estate. The mother said four months later the father followed her to City S and begged her to let him move in, and by that stage his children had been removed from him, and he was in very low spirits. The mother stated she relented, and they resumed their relationship.
The mother stated that the father was on medication, but did not get himself a new doctor in City S and would visit an old doctor in Region T on occasions when he was there. The mother observed that the father ran out of medication frequently and noted that there was a dramatic difference in his behaviour and demeanour. The mother observed and experienced the father becoming verbally aggressive towards her and her children. The mother stated that the father would yell at H, calling him names, as well as calling both children names, and the mother would insist he get back on medication to settle things down.
The mother recorded the father spent nearly all his time playing video games. The mother observed that the father cooked dinner, but that was it, and did not assist in any other way around the household with the children. The mother identified she fell pregnant, and the father said he did not want the baby and as the mother was not confident of the father as a father, she terminated the pregnancy.
The mother identified that she became pregnant again and decided to go through with it, and X was born at City S Hospital in 2018. The mother said that following X's birth the father was very little help and that the mother did the majority of feeding, changing nappies and bathing, and on the odd occasion, grumbling about it, the father did a feed, and that the mother continued to do all the overwhelming majority of housework and parenting. The mother observed the father's behaviour continued to fluctuate, and he became more controlling of the mother. The mother observed that the father would answer for her and override her decisions. The mother said that the father became physically aggressive with H by tackling him to the ground and yelling at him. The mother observed that the father did not show the children any respect but expected to receive respect in full.
In 2019, the mother felt pregnant again and experienced the same pattern of behaviour from the father as she had during X's pregnancy. The mother recorded that the father did want X, but he did not want Y. The mother identified that Y was born in 2020 at City S Hospital. The mother records that by August 2020 she had had enough and that the father was no help, and they were arguing constantly. The mother asked the father to leave the house, and he begged her to be allowed to stay and promised he would go to counselling. The father did not keep the counselling appointments, and so, again, the mother asked him to leave, and he refused. The mother notes that by September 2020 the father had promised to leave but failed to do so even after he had secured temporary accommodation.
On 30 September 2020 the father moved out some of his stuff. The father on that occasion refused to move into temporary accommodation and tried to barge back into the house. He pushed and shoved the mother out of the room. The father took X and the children into X's room and closed the door and kept pushing and barging his way through, pushing the door into the mother's elbow, which really hurt the mother. The mother said she remembered the resounding pain in her elbow, and then the father suddenly grabbed her by both arms and threw her backwards. The mother said she was left with bruising to her elbow and upper arm. The mother said that while she was down, the father grabbed X, and the mother called the police, who attended. The mother asked the police to get the father out of the house, but they did not require him to leave as he was a co-tenant on the lease, it having been renewed in both names. The mother noted that she tried to make a statement to the police, but they did not come back to her.
On 1 October 2020, the mother said she and the father separated on a final basis. The mother says that shortly after they separated, the landlord, who was the father's friend, served a notice of termination, even though the mother had been up to date with their rent since they moved in, and that she had until 31 December 2020 to vacate the premises.
Upon separation, the father retained X in his care and did not take her to childcare. The mother records the father repeatedly asked her to sign Centrelink documents so that he could receive partial parenting payments for X, which the mother eventually did as she could see no other option. The mother observed she believed his motivation stemmed from money as he had never shown any interest in parenting in the past. The mother identified trying to have daily communication with X; however, more than half the time, the father would not facilitate the calls by not answering or not making X available. The father did allow the mother to have contact with X via telephone every second or third day, sometimes up to an hour, but he would cut off the call for no good reason, such as if H said hello to X.
The father did not allow X to have communication with her siblings. The father told the mother that he was under the impression that if X and Y were in his care, that she would resume her relationship with him. The mother believed that was the real motivation for the father taking X, not having any real concern as to X's welfare. The mother noted the father moved residence twice while retaining X. On 11 October 2020, the father sent an SMS text message to the mother offering to return X if the mother had sex with him.
In October 2020, the mother's son H exposed himself, which the mother reported to the Department of Communities and Justice. The mother deposed that she made that report in the best interests of the children. The mother recorded that the Department of Communities and Justice were satisfied that the mother was taking appropriate action and referred the mother to OO Service for case management, home visits and counselling. The mother identified that even after the Department of Communities and Justice were satisfied the matter had been dealt with, the mother continued to engage with the OO Service and accepted a referral to the PP Service in Region T. The mother identified that a Children Sex Educator at City S Community Health on 23 July 2020 said that there were no red flags and deemed H to be safe around the other children and that he had been only doing what his friend had showed him. The mother records that both H and O now understand it was not appropriate and there have been no further issues.
The mother observed the father keeps posting material about child molestation and identifying the children, which the mother said was just not true and said that she believed it was not in the best interests of the children for this to be posted online. The mother observed that the father has continued to name H online as a sexual predator, which the mother observed is a threat to his safety and well-being.
On 5 September 2022, interim orders were made for the children to live with the mother and spend time with the father each alternate weekend from 5.30 pm Friday until 5 pm Sunday or at such other times as were agreed. On that occasion the father attended the children's day care for Father's Day. On 4 November 2022, the mother informed the father that X had preschool orientation on 15 November, and the mother also attended changeover. The father sent an SMS text message to the mother:
Two busses decided to kiss each other on the [road]
On 13 November 2022, the mother received concerned messages on Facebook concerning the father's posts saying he was going to kill himself including:
Soon I will be gone, leaving everything behind me and friends please don’t worry about me. I a fine wherever I am if I need you I will let you know. Even know you all are the reason for me leaving besides 1 person who will know where I will be and when. Please don’t call me please don’t text me to see if I’m ok if I was ok, I would not be leaving you all behind to find peace this is my goodbye.
The mother records that on 15 November 2022, she received an image from the father being in hospital hooked up to machines with a text message saying:
Off to hospital I go.
On 15 November 2022, the mother text messaged the father informing him that she had an appointment that she could not avoid during the scheduled communication time with the children and asked him to propose a different time. The father refused and commenced a tirade at the mother for not being available as a one-off. The father did not spend time with the children as he was severely injured.
On 5 December 2022, the mother received a text message from the father about Christmas arrangements for the children. The father was demanding changes to be made to the interim orders to suit him. The father turned the discussion into an argument about the mother's alleged behaviour towards him before leaving the mother two concerning voice messages, screaming at the mother.
One of the father's SMS text messages said:
You know, you wonder why I speak to you the way I do sometimes it's the absolute lack of respect that you have for me as the children's father right you have a 90% of time, and you can't let me have one time every two years a little bit of time with my children so I can actually have a Christmas right you want to fight and argue you wonder why I speak to you like this it's not the fact that I just want to disrespect you and I'm so disrespectful it's the way you treat me and the things you do and say that set me off to make me want to fucken swear at you and call you nasty s*** and raise my voice because you can't just speak and beef that you have 90% of the time with the children and can't give me until 114 on Christmas Day once the fucken year every 2 years.
The father thereafter sent two voice messages that were threatening and sent an SMS message stating:
I'm done please let me say goodbye to my children
followed by a further message saying:
Goodbye
The mother records the father proceeded to send her 22 messages, consisting of alarming and threatening content, including messages that were attacking the mother, and some were the father professing his love for the mother and contained images of the mother giving birth to her children and other messages confessing suicidal ideation. The mother records she then received a three alarming voice messages on her mobile phone from the father. The mother records that one voice message was meant for the children and included the father’s sorrow that he is no longer around, and he won't be around for the children growing up. In one of the messages the father can be heard crying and screaming at the mother. In another, he was threatening the mother.
The mother records the father also sent her a screenshot of his email to, what she believed, was his lawyer:
I thank you for your time and effort on the work you have done, but I am now done with court. I will no longer be attending mediation or any other courts that require your services.
The mother records that after the father sent that email, the father subsequently commenced threatening the mother to say that he has evidence against her to incriminate her and cause the police to charge her with criminal offences.
The father commenced demanding that the mother answer his phone calls and listen to a recording he had secretly obtained of the mother. The father subsequently sent an SMS message, saying:
I swear I am done [Ms Hearst] I swear whatever you want in the orders u will get I won't be there I swear I won't contact you in any way again I will not bother you in any way again I will not have anything to do with you at all again as long as you pick up and let the recording play; how about I drive down sometime and play it over my car sound system so you and everyone that lives around you can hear it; that way I know you could hear it and so can the rest of the world so they can judge how you judged me.
The mother subsequently received an SMS text from the father that was accusatory in nature. The SMS message included images that the mother had shared to the father of herself in an intimate setting. The father's text message said words to the effect of:
Damn, girl. Can I get a bit?
The mother expressed concern that the father had shared his phone with someone else and had shared intimate photos of herself with other people, as well. The mother said that she subsequently received photographs of herself giving birth to the children and photos of the father by her side and other family photos accompanied by further SMS text messages right through to 10 December 2022.
The father requested that police conduct a welfare check on the children in her care. The children were sighted happy and healthy in her care. The mother identified that despite the father's behaviour she was afraid not to comply with Court orders, and the mother messaged the father informing him that she would initiate the children's communication with him.
In late 2022, a provisional apprehended violence order was made naming the father as defendant and the mother as the protected person. The conditions included a non-approach order. The father breached the ADVO on several occasions, and the breaches were listed in the Suburb FF Local Court to be heard in early 2024. The mother received a text message from the father stating that he had lost his phone on Sunday afternoon. Despite the issues of the father's behaviour, the mother was afraid not to comply with the Court orders and sent a text message informing the father that she would initiate children's communication with him.
The mother recalled during the call, that the father commenced to denigrate the mother to the children, including telling them that she was the reason they were not seeing him. The mother had to terminate the call as the children commenced getting distressed. The mother followed up in a text message, and the father proceeded to say that the mother had stolen his phone and written messages to herself from his phone.
The mother subsequently received six voice messages from the father that were horrifying, including screaming at her and blaming her for the current orders in place. The mother noted the father can be heard professing his love for her and then, in others, he is threatening to kill himself. In one of the messages, the father can be heard saying words to the effect of:
[Ms Hearst], you have full custody, full responsibility. I no longer have anything to do with the children, yourself or anything else at all, and yes, I plan on killing myself some time very soon OK. I plan on jumping on my motorbike and riding somewhere extremely far and probably ploughing into something extremely quickly because I AM FUCKING OVER THIS SHIT WITH YOU. I am done you have broken me enough. No matter much I have tried to sort things out you have tried to kick me in the fucking guts and putting me down. I do everything I possibly can for you, and it is never fucking good enough. Or because of this or because of that, you are just making up excuses because you don't have the fucking guts about things you really want to say how about you just say what you really want to say instead of just fucking pussy footing around like you normally do and sugar coat and shit and make it taste like fucking candy right. You want what you want, and you just want to fuck me, so yes soon this will be your fault. It's your fucking fault.
The mother identified that on the same day she received another recording in an extremely mellow tone state, where the father said:
[Ms Hearst], this will be the last time if you listen to audio recording. That is, it. No more court. Not going to do it. As you see I showed ya, told ya. Showed my lawyer. That's it is over. When you go to court next you will get whatever you want because I won't be there. I just need to hear you. I need you to hear this recording so I can be done and finished.
The mother records that at approximately 11.08 am she received a message from the father stating that she had his mobile and sending the messages to herself from his phone. The father sent further 13 SMS messages from this different mobile phone. The mother identified that the messages and recordings are distressing and highly convoluted with the father's tirades. The mother stated that as a result of the father's persistent behaviour, she held concern for her safety, the children's safety, and concerns for the father's mental wellbeing.
The mother attended the Suburb FF police, and the police were equally concerned. A provisional apprehended violence order was made naming the father as the defendant and naming the mother as the protected persons, with conditions, and a non-approach order. After the ADVO was made, the mother continued to present the children to Mr Cagley as he was adamant to show the Court that she could not comply with orders, and the father threatened that the mother would get into trouble.
The mother referred to arrangements being made for the father's friend to collect the children from Suburb FF Police Station as the mother was fearful of the father and was not comfortable to be around or near him. The mother observed this continued for one and a half months, or three fortnightly visits, before the father and his friend had a falling-out and the friend stopped coming to the Suburb FF to collect the children or return them to the mother. The mother observed this continued until early 2023.
The mother referred to the Court child expert's family report release on 24 February 2023, and the father commencing a tirade of messages professing his love for the mother and sent a message of goodbye: "You will always be in my heart. I'm sorry I broke yours. Use the calls and text sent. Send them to the police send me away so you all are safe from me."
In around March 2023, the mother commenced receiving personalised letters in a mailbox that did not have an address or postage stamp. The mother observed the letter was signed by the father and contained apologies for him treating the mother so badly and pleas for time with the children and professing his undying love for the mother, asserting, "I would have done anything for you," and, "There's nothing I would not do to have a life with you." The mother observed that some of the letters with the children had contained inappropriate content.
The mother was concerned that the father was approaching her home while she was inside and reported the letters to the police. The mother was aware that the police breached the father for not complying with the ADVO because of sending those letters.
In early 2023, a no contact interim apprehended violence order was made for the mother's protection from the father. The mother observed the father breached the ADVO, which is being heard in Suburb FF in late 2023. The mother observed the father made no attempts to contact her through her lawyer to make new arrangements regarding the children between March and May 2023. In early '23, the father was charged with three counts of breach ADVO, as the father had contacted the mother numerously by payphone. The mother believed the father had contacted her in that way so that he would not be detected by the police.
The mother referred to a breach on 14 April '23, when the father requested the police conduct welfare checks on the children in her care, and the children were sighted happy and healthy in her care. In early '23, another provisional ADVO was made for the protection of the mother through the Town D Police. That ADVO was breached by the father. The father's behaviour significantly deteriorated since the making of the interim parenting orders. The mother expressed concern about the rapid decline in the co-parenting relationship and the father's erratic and clearly disturbed behaviour towards her and the children. The mother observed that she is fearful and cannot go on any longer with the current arrangements.
On 2 June 2023, the father requested the police conduct a welfare check on the children. The police were asking for the mother's location, as the father had requested they do a welfare check on the kids. Even when the police had seen her standing at the top of the stairs, the mother observed that, "Given you have sighted the children twice, is this absolutely necessary?", and the police officer said, "Unfortunately, it is, as we need to do what's requested." On 10 June '23, despite all these events occurring, the mother tried to call the father for his communication with the children. The father did not answer. Later that night, the father contacted the mother and arranged a video chat between the father and the children, which went for 19 minutes. The mother records that she facilitated another video call on 11 June '23 between the father and the children, as the children were missing him, and that the video chat lasted 29 minutes.
On 19 June 2023, the father commenced an SMS text to the mother, starting:
Please, please, do not breach me for this
And was preceded by a plea for the mother to drop the AVO. The mother observed this continued for several days, and the content of the messages did not relate to the children. The mother reported the father to the Town D Police Station because of his continued contact in breach of the ADVO. In mid-2023, the police - Town D police applied for a further provisional apprehended violence - domestic violence order for the mother's protection and for the protection of X and Y due to the growing concerns about the father's behaviour. The provisional ADVO contained conditions of non-approach. And the father's solicitor ceased acting for him in the Family Law proceedings, but continued to act for him in the criminal proceedings.
On 21 June '23, the father's insistent messages did not stop, and he continued to say:
...he would always love me, always wants me in his life, and he desperately wants to fix things between us.
On 22 June '23, the father's messages continued and consisted of questions regarding the mother's relationship status and queries for more time with the children. The father informed the mother of an injury he had sustained on his finger that turned out to allegedly be an illness and told the mother he almost died, which was the reason for his behaviour. The father has not provided any evidence about the illness impacting on his mental health. The father proceeded to threaten the mother if she did not come to an agreement that was satisfactory to him. The mother was concerned about the father's behaviour and the tone he took in the messages and subsequently reported the issues to the police. In mid-2023, the father was charged with four counts of breach ADVO and one count of intimidation and harassment:
The [Town D] Police Station applied for an interim ADVO protecting me from [Mr Cagley]. [Mr Cagley] breached the ADVO, which is why it was listed in the [Town BB] Local Court [in mid] 2020.
In late 2023, a final ADVO was made for the mother's protection in the Suburb FF Local Court. On 28 June '23, the father commenced contacting her lawyer and made threats to take legal action against her. The father alleged that he had been forced to complete an insurance job on her car to help her claim money on it that was not true. The father had spoken of burning the mother's car and making it look like theft, and the mother told him that she did not want him to commit a crime.
Without the mother's knowledge, the father took her car keys and car, and she thought it was, in fact, stolen. The father then threatened the mother that he would report her to the police for insurance fraud unless she agreed to drop the ADVO made for her protection. The mother fervently denied the allegations that she coerced him to steal the car and burn it for an insurance job. The father continued to email the mother's solicitor, and this continued even after he became legally represented.
The mother identified being extremely concerned as to the father's mental health and state of mind had deteriorated, leading him to act irrationally, erratically, and that he has no insight into his behaviour, leading to continued criminal behaviour and violence. The mother opined that the children are not safe in the father's care. The mother then turned to difficulties with changeover.
The mother observed the pursuant to orders made on 5 September 2022, the mother and father attending changeover at Town QQ McDonald's each fortnight for the commencement of the father's time and the father's driving the children back to the Suburb FF McDonald's which was closer to the mother's home.
On 14 October 2022 the mother drove the children to the father's friend at Suburb RR, and they came back with the mother and were happy.
On 21 October 2022 the father did not have a working vehicle, and time did not go ahead.
On 4 November 2022 the children spent overnight time with the father. When the children were returned to the mother's care, X could not sleep until late at night and O did not eat his dinner.
On 18 November 2022 the father requested commencing using a third party for changeovers, and the mother notes the father missed his visit on 15 November 2022 because he had been assaulted and could not drive for the next eight to 10 weeks.
On 19 November 2022 the father refused to agree changeover at Suburb V, and changeover commenced at U Store at Town QQ at the commencement of time and U Store at Suburb V for the conclusion of time. The mother records that the father often demanded a change of location for changeovers at the last minute. The father often said that he was unable to drop them off or pick them up and requested the mother collect the children or drop them off to him in Town QQ to make his time with the children possible. The mother records that when it came to time for collecting the children, the father would change the time or not show up and the entire thing was unworkable as the mother had limited financial means and had to care for the children.
On 16 December 2022 changeover took place at Town QQ Police Station at the commencement of the father's time and at Suburb SS Police Station at the conclusion. The mother observed that both X and Y were extremely unsettled on their return to her care, and that Y said words to the effect "I hate you, you're a bitch", and X said, "[Mr L] and [Y] is my only brother because [O] and [H] hurt me, and you do nothing to stop them. I hate you." The mother noted that these are not things the children had ever said to her before.
On 24 November 2022 the children spent time with the father overnight, and when returned to the mother at Suburb FF Police Station, X came home saying, "[H] and [O] are not my brothers because they are mean to me." The mother observed that X and Y were very unsettled, and also X saying that she hates the mother and wants to live with the father.
At the end of December 2022 to early 2023 the father gave up his time with the children. From mid-January 2023 the children attended changeover with the father's friend at Suburb FF Police Station, and this occurred three times.
In early February '23 X and Y were extremely unsettled whenever they were returned to the mother's care. The mother observed that X and Y would not settle well before going to bed, and that X was calling the mother hurtful names like bitch and that the mother is stupid and that she hates the mother.
Towards mid-February '23 X started to call the mother by her first name when she returned home from the father's care but would revert to calling her Mummy a day or two later.
On 23 February '23 the father refused to see the children after release of the family report. The mother ceased feeling safe to effect changeover herself, and the father made no attempt to arrange alternative changeovers with the mother after the early 2023 AVO.
The father missed Y's birthday in 2023 but attended the mother's home without her knowledge or consent and dropped off the children's belongings, toys, boxes of clothes and bedding.
On 11 May '23 the mother engaged new lawyers offering to make changeovers in a supervised capacity as the mother feared what the father may do if they came face to face. The mother did not effect changeover at Town QQ as demanded by the father because she wanted something safe to occur.
The mother on 1 June records that the father insisted through his lawyer that the mother affect changeover at his home. The mother records feeling pressured to offer some time and hoped that the denial of anything being wrong by the father's solicitor was true.
On 2 June the mother responded to the father's correspondence dated 1 June informing that she would agree to a public place halfway between Town D and Town QQ. The mother indicated that if she did not hear back from the father changeover would be effected at Suburb FF Police Station, and the father did not respond. The mother presented the children to Suburb FF Police Station and remained there for an hour, and the father did not attend the changeover.
On 2 June '23 arrangements were made through solicitors for the mother to take the children back to Suburb FF Police Station despite the mother's concern that the children would be tired and be subject to a long drive to Town QQ where the father resides after drop-off as the mother was desperate for assistance with the children while the mother moved to a new home. The mother waited for the father at the Suburb FF Police Station for approximately an hour and a half before leaving as the father did not attend. Whilst driving home the Suburb FF Police Station contacted the mother to identify they had been contacted by the father to conduct a welfare check on the children who had care as he was concerned they were not in their beds.
There was a third request for a changeover at 10 pm at night which the mother declined. The mother's lawyer recorded the events in correspondence sent to the father's lawyer.
On 16 June '23 the mother attempted to facilitate the father's time with the children and presented the children to the Suburb FF Station, and the father demanded the mother attend Town QQ and collect the children because he had car problems. Upon return of the children, Y was calling the mother by her first name, and X was upset that the father did not take her out of the house the entire weekend. X and Y both had a set of clothes missing.
On 22 June 2023 the mother received a message from the father meant for the children saying, "I have the steering wheel. Please stop." The mother took this as a suicide threat and did not facilitate the children's time with the father as a result.
On 28 June '23 the mother informed the father about the change to the children's practitioners and received a response, "Please stop contacting me. This is a form of harassment."
On 14 July '23 the father sent an email to the mother's lawyer that he could not have the children as he was moving houses. The mother referred to the telephone calls that take place being sporadic and the father being focused on asking questions of the mother about the court or directing slurs at the mother, and on one occasion in December '22 screamed, "Shut the fuck up, [Ms Hearst]", which X heard, and the mother was forced to terminate the call.
The mother recorded that the calls made in June and July '23 were not answered by the father. The mother referred to trying to keep the father informed of the children's circumstances to the best of her ability, but identified it was causing her stress, anxiety and fear that she will be subject to the father's tirades, threats, and in general, harassing behaviour.
The mother identified an inappropriate response by the father in relation to being informed about X's medical appointments on 24 July '23. The mother recorded that the father continued to say that she is in breach of family orders, and that the mother is stressed out about not complying with Court orders and fearful of the father. The mother identified it was difficult to co-parent with the father, including keeping him informed of things, as this always somehow opened the mother up to conflict and emotional and psychological stress.
The mother also identified receiving letters in the smashed up mobile in her letterbox from 8 March '23, and received a payphone voice message from the father confessing it was him who had left the items for her.
The mother records that since interim orders were made, the father uses video calls or attempts to communicate with the children to speak to the mother using inappropriate language, name calling, to question X about the mother's life and her parenting, and to simply put the mother down as a mother.
The mother records that the father repeatedly used a payphone to contact the mother and leave messages that were not related to the children, and then denied that he was the author of the payphone calls to the police.
The mother identified on 15 May '23 the children's child care centre contacted her regarding the father being quite upset and verbally abusive because of them not allowing the father to see Y while he was at the centre. The mother identified that she did not want Y's enrolment being jeopardised due to the father's persistence in going to the child care. The mother recorded that she is terrified the father will remove the children from the child care and not return them. The mother noted that the father had made repeated requests to contact him so that he could speak with the children, however when the mother does so, he does not answer.
The mother identified the father leaving voice messages inappropriately asserting that the mother is not following the Court orders and dropping her off and doing phone calls like she was meant to, and that he would see them soon, and asserting that there is a new house with new furniture, and that he has a new "fuck car", and that they would hear from him soon.
On 10 June '23 in a video call the father was telling the children that it is the mother's fault they have not seen him, using words to the effect, "Mummy has blocked me", and that he needed to go to Town D Police Station to sort a few things out. The father had a further conversation with the children on Sunday, and again told the children that he had not seen the kids, and that it is the mother's fault. This approach by the father continued in June until the mother made the last call on 30 June and the father did not answer.
The mother identified that the father had denigrated her and called her names on social media platforms, calling the mother "a deceitful, disrespectful, narcissistic, abusive, violent, aggressive, controlling, and manipulative person." The mother identified the father posting on Facebook the mother's full name attached to posts, and sending out a message to the two children and asserting that God takes his vengeance upon those who do harm and included the threat that "we are here to do God's work." The mother expressed concern that the father denigrates her to other people.
The mother identified having received repeated and numerous contacts through payphones from the father.
The mother identified that she had been the primary carer of both the children since birth and identified the numerous parenting activities and routines that she attended to.
The mother observed that the father rarely assisted around the home, and that the most he would do was cook dinner.
The mother observed the father has not worked full-time since she gave birth to X.
The mother referred to the children in her care being very happy, bubbly, and healthy.
The mother referred to Y having a minor speech delay.
The mother referred to the children saying that they miss the father, that is, referred to X saying that she misses the father, and Y asking about the father. The mother noted that to date, the father has made no attempt to contact the supervisors to engage in supervised time with the children.
The mother observed that the father appears to care for the kids when he does not have to do much for them but forgets about them when he must take active steps to care for them or do things for them.
The mother referred to completing the parenting after separation program on 15 December '22, and that she had been fortunate enough to obtain permanent housing in Town D, and relocated for many reasons, including that she did not feel safe due to the father and did not wish to disclose her address.
In mid-2023 the mother was contacted by City TT Police concerned for the father's welfare and as to his mental health.
On 30 July '23 the mother received a message from the father's mother, and the father posted online that he was homeless. The mother did not accept that the children should be sleeping at random places.
The mother observed that the father did not pursue time with the children between the interim hearing and until 10 October '23.
The mother notes the matter was listed for a final hearing on 7 December '23, and that the father's lawyers withdrew from the proceedings, and that the mother did not oppose an adjournment because she wanted the father to get the benefit of legal guidance and advice. The father acknowledged that he had mental health problems, and that he wanted to work on those problems. The mother was hopeful that the father would use time until the next hearing to improve his behaviour and that they could move on from the trauma and conflict. The mother observed that this has not occurred, and that she has been struggling and living with conflict and constant fear of what the father might do next.
The mother referred to a video posted by the father on Facebook which she identified was intimidatory where he declared he had successfully manipulated the Court and was proud of the manipulation, and that he was coming for the mother. In that video the father said words, as identified in the chronology. The mother was alarmed at the father's message that had clearly been intended for her and caused her lawyers to write to the father.
The father posted on his public Facebook profile a video of the mother giving birth to X without the mother's knowledge or consent.
The mother observed that a nude video of her entire body released on the internet for everyone around the world to see caused her extreme distress. The mother recalled shaking, feeling sick to her stomach, being embarrassed, mortified, horrified and scared. The mother observed the video was taken when she was under the influence of an epidural during a long labour by the father, and she did not agree to the father to take any such recording.
The mother observed the father had posted threats and comments such as "I am uploading everything uncut. Every fight, the birth of [X], every photo of you, me, the kids, every text I have, every recording. Goodbye, [Ms Hearst]." The mother reported the online video to the police.
The mother observed since the making of the interim orders on 7 December '23 the father has sent numerous proposals that he withdraws or takes back, and that the mother is exhausted. The mother observed that these proposals have included overnight time with the children, and that she is concerned about moving forward with overnight time arrangements or any unsupervised arrangements because the father has not demonstrated any reform.
The mother observed that the father has not offered any new information about his mental health treatment or progress, nor that his drug use has ceased, nor that his personal circumstances have improved.
The mother observed the father was homeless or living in a car or van, and that this was not suitable arrangements for the children.
The mother identified a string of horrendous names that the father has continued to call her in conversations and continues to denigrate the mother. The denigrating words and names include:
Narcissistic, cunt, dumb as shit, piece of shit, shut her fucking mouth, shut the fuck up, vindictive manipulative piece of shit, dirty piece of lying manipulating shit, low life.
The mother observed that the correspondence from the father is ongoing and comes in bursts every few months. The mother observed a pattern of behaviour where the father will settle and then resume his tirade of attacks against the mother every few months.
The mother is concerned that when there is no more Court, the father's behaviour will be unmonitored, will increase, and the mother is concerned that the father will find her and harm her.
The mother identified the propensity of the father to blame her for things that are not her fault and gave an example of a tirade during Father's Day, blaming the mother for not facilitating the children.
The mother referred to a multiple of texts asserting that she was not complying with Court orders when there was no such arrangement in place and said those actions are a form of abuse and that she is extremely stressed out by the father's words.
The mother identified that the father has caused her to further fear his stalking and intimidatory behaviour. The mother referred to the father taking a photograph of her and the children leaving the contact centre. The father did not abide by the rules of the contact centre, and the mother found this extremely concerning as the father has located her whereabouts in the past which has caused her to fear for her life.
The mother identified the father continuing to post things using a false name "[…]", which includes threats towards the mother and threats of self-harm, and set out a tirade that was posted by the father.
The mother observed the father has been threatening towards her elder child, H, which raises the mother's concern as to the father's lethality and tendency towards acting in violent ways.
The father has publicly shamed and named H as a predator.
The father made a false report to DCJ that the mother broke X's arm, when X in fact broke her arm at school.
The mother referred to the father's reports to DCJ, welfare checks and home visits because of neglect allegations made by him in relation to the mother, including causing the mother to be investigated by PP Service.
The mother identified that communications on the app began on 15 February '24, and identified 10 unanswered calls made between 28 February '24 to 30 June '24.
The mother identified the father answered on 3 July '24 and informed the children that he would be residing in the USA, and he had to have the children blocked, and that they would never have a chance to do fun things again. The mother expressed concern that the father was seeking emotional validation from the children and set out the text of the assertions by the father he would be living in America. The mother recalls that the children were shocked.
The mother recalls in a call on 7 August '24 X telling the father that she had a boyfriend and that she did not need to lie to Daddy for Mummy.
On 4 September '24 X was crying and distressed and was being asked by the father questions about missing the father repeatedly, and the father then asked the children what they got their other Daddy, causing X to become distressed and the mother to intervene in the telephone call.
There were further telephone calls between 11 September '24 and 9 October '24, and on 6 November '24 the father asked X if a man named Mr UU is the mother's boyfriend and started asking intimate questions about the mother's personal life. The father also suggested to X that he had only one visit left and would not be seeing them again.
On 30 October '24 the father told the children there were only two more opportunities he had to see them. The mother records that the father said some very horrible things to the children including that he would abandon them, never see them again, and that he is relocating overseas, and that the mother is to blame for them not seeing him more often and more.
The mother records the father has consistently manipulated the children emotionally and undermined the mother during the audio visual calls and inserts false narratives, asking misleading questions that confuse the children and negatively affect their emotional wellbeing. As an example of an inappropriate question, the mother referred to the father asking:
What did you get the other Dad for Father's Day?
The mother deposed that such questions it is also implied that the mother intentionally hurt the children and that they do not want to live with the mother.
The mother expressed concern about the impact of the father's behaviour on the children and concern about the children's mental, psychological, and emotional wellbeing in the future. The mother observed the children experience confusion and distress due to the lack of regular contact with the father which disrupts their sense of security and stability.
The mother observed that if the father is granted visitation, she is concerned that his inconsistency will continue further harming the children's emotional health and daily routines. The mother referred to the supervised visits as being inconsistent visits with the children.
The mother identified the father spending time with the children supervised on 2 March '24, 23 March '24, and that 13 April '24 was cancelled by the father, and on 10 May the father informed the mother that he would not be attending until further notice, and there were no further visits until 3 August '24, and that the father, on 3 August '24, cancelled that visit. The father cancelled the visit for 14 September '24. The father spent time with the children on 26 September '24, 12 October '24, and 2 November '24. The mother observed that the father is unpredictable, and the only consistency is his erratic and inconsistent and concerning behaviour that negatively impacts on the children's emotional and mental wellbeing.
The mother observed that the children experience confusion and distress due to the lack of regular contact which disrupts their sense of security and stability. The mother observed that if the father is granted visitation, she is concerned his inconsistency will continue further harming the children's emotional health and daily routines.
The mother referred to the struggle for the child O going on long drives and trips and that it takes another almost two hours to get to Suburb K.
The mother observed that the children's education is on track and that there are no development issues other than Y's speech delay.
The mother observed that X is helpful, kind, caring and shares and does everything asked when not spending time with the father, and that other than the times when she comes back from the father's care, X is pleasant and a well-behaved child.
The mother referred to the children having therapy, and that they attend those sessions as part of their ongoing emotional and psychological support.
The mother referred to the children regularly seeing a paediatrician and dentist, and additionally a support for Y's speech, emotional regulation and behaviour.
The mother referred to an assertion that she had punched Y in the face and said that the story was entirely false, and the mother was unclear where the allegation stemmed from.
The mother identified that she seeks support from doctors and counsellors when she feels it is necessary and currently undergoing domestic violence counselling to help process the trauma she has experienced in the relationship with the father.
The mother referred to a medical condition and two minor surgeries.
The mother referred to orders for a PO box for the father to send gifts, which the father has not used at all, and the expense of maintaining that PO box.
The annexures to the mother’s affidavit include communications from the father to the mother’s solicitor that were abusive and manipulative. On 4 September 2024, the father falsely alleged he had cameras inside the mother’s home and accused the mother of narcissistic manipulative tactics to cause his mental health breakdown. On 2 September 2024 the father alleged abuse by the mother. On 6 May 2024, the father called the mother a
dumb as shit client, cunt of a client, peace of shit out of my life
The father on 6 May 2024 also made the threat
your stupid client will wish she never fucked me over and around
The email from the father dated 1 May 2024, referred to the mother your piece of shit client, fuckwit of a client, made a threat that the mother needs to shut her fucking mouth, called the mother a vindictive manipulative piece of shit and dirty piece of lying manipulative shit. An email on 3 May 2024, alleged the mother uses mental abuse and manipulative behaviour to force her own outcomes and called the mother a lowlife. On 5 March 2024, the father alleged the mother suffers from NPD on the covert spectrum (this is a reference to narcistic personality disorder), alleged abuse of the mother against the father and children for many years, alleged the mother lied for a recovery order. On 29 February 2024, the father said:
Your client can go absolutely go an f*** herself. Because I plan on screwing her if she does not decide to take one of the deals that I have offered.
The father in that email also called the mother a covert narcissistic bully. On 29 February 2024, the father made a threat the mother is lucky he did not have adequate legal representation, alleged the mother had narcissistic abusive tendencies, made a threat that if the mother did not choose to accept his offer and that he would
fully fight her. And I will use absolutely everything at my disposal.
In the cross-examination, the mother identified that she is a stay-at-home mother and has the primary care of the two children. The mother confirmed in relation to the notice of risk that she did not allege that the father had abused either child and confirmed that she answered the question that neither child is at risk of being abused by a party to the proceedings. The mother also confirmed that she had answered a question in the notice of risk in paragraph 3:
Has there been family violence or is there a risk of family violence by a party to the proceedings or any other person who is relevant to these proceedings?
And that the answer given had been "no".
The Court notes exhibit F was dated 12 October 2020 and was filed at the same time as the originating application and an interim application by the mother seeking a recovery order in relation to the two children and that the mother filed an affidavit in support of the interim application and that there was a response filed on the same date by the father seeking to have the proceedings discontinued or transferred and that the father filed a notice of risk, which was marked exhibit E.
When asked whether there was no risk that the father presents to the safety of the children in cross-examination, the mother said, "I don't agree at all." The mother explained that she answered the question and noted a risk, assuming on the basis that it referred to physically harming the children. The mother did not accept that the father does not at present, present a risk of abuse to the children in relation to the suggestion of whether there were incidents of abuse by the father, the mother replied, "Yes, but not physical at the present time." The mother accepted that there had been no physical abuse by the father, of the children.
When the mother was asked about an incident involving H, being the mother's child from a previous relationship, involving sexual activity towards his younger brother, O, who was a child from a previous relationship, the mother was asked about the incident between H and O, and said he was led by another child to do so. The mother accepted that the father was justified in having a concern about X and Y being in the presence of H, and indicated that is why H is no longer in her care. The mother indicated that H has supervised contact with the other children. The mother identified she suggested supervised visits for H, who currently resides in a juvenile detention centre.
The mother agreed that there was a previous AVO applied for by the father, and recalled the incident where the father was taking her phone, and she tried to get it back. The mother said that when she tried to explain her side to the police officer, they did not want to listen, and when she explained she just tried to get back her phone, the police took it as an assault, and that is how the AVO came out against her. The mother confirmed that she tried to take her phone back from the father and that she tried to wrestle the phone out of his hands. The mother confirmed that before that she had asked for the phone to be returned by the father a number of times and he had told her to wait and that he was trying to put in contact numbers and that is what she was trying to stop him doing. The mother was not sure whether the incident was in 2018 or 2020. The mother disagreed that she could physically pin the father to the lounge and identified that he was able to stand. The mother disagreed that she shook or hit the father.
The mother was asked about ripping the TV off the wall, throwing it to the ground, and said that was another incident. The mother explained she did that because she felt as if she wasn't able to leave the room and that the father was preventing her from leaving the bedroom and that she had no other option but to do that so that she could get out of the room. The mother explained she thought it was her only option to get out of the room. The mother disagreed that when angry, she normally breaks things.
The mother agreed that when she separated from the father on September '20, she told the father to take both of the children to further prevent physical harm towards herself and the children witnessing that. The mother denied taking the father's keys and locking him out from his belongings. The mother disagreed that she told the father he would be doing her a favour by taking the children or that he would be helping her.
The mother agreed that after separation, up until early 2022, on a few occasions she slept with the father and described it as somewhat consensual. The mother said that the father had offered to trade sex with the mother for returning X. The mother explained that that was when she was asked by the father to have sex with him in relation to having time with X. The mother said she did not have consensual sex with him after that and that there were only two occasions after separation where they had sex.
The mother disagreed that she had sex with the father after he sent a message, and that it was a number of weeks before he had asked whether she would have sex with him for time with X.
The mother said she had only had sex with him twice and that was before he had said what he said and that there was no time after that.
The mother agreed that in December 2022 there was an occasion where she went to Region VV with the children and spent the day together with the father. The mother agreed that on that occasion, the children were happy on a boat with the father and that from the pictures she had seen, the father cared for the children and met their needs on that occasion. The mother indicated she did not recall leaving the children with the father unsupervised.
The mother agreed that she had postnatal depression after she gave birth to her oldest child, H.
The mother identified the mood swings were part of the postnatal depression and that she experienced then forgetfulness, and that she didn't feel good enough for her child.
The Court does not accept the submissions that the psychologist's report demonstrates the father's mental condition has improved. The Court finds the father continues to suffer from the major disorder with anxious distress identified by the psychiatrist Dr W, and the Court finds that that major depressive disorder with anxious distress is not properly managed by the father and the Court finds the father, given the history of the matter, is unlikely to take steps to properly manage his mental health in the future so as to acquire an adequate level of self-control, insight and empathy needed to possess parenting capacity for the children.
The Court finds the continued use of marijuana by the father on a daily basis is a further significant risk factor in relation to the father's mental health and a further reflection of his lack of parenting capacity. In relation to s 60CC(2)(e), the Court finds that it is not safe to do so for the children to have the benefit of a relationship with the father beyond the identity contact orders.
In finding that it is not safe to do so in terms of other than identity contact relationship with the father, the Court finds that the lack of empathy identified by the court child expert of the father in relation to his children reveals an ongoing state that was reflected in the evidence that he gave before this Court, in which he made a stunning disparagement of his daughter, that he described as a drug addict and a liar. The Court finds that the continued denigration of the mother after being informed of its potential adverse impact in the course of the hearing reinforces a real lack of empathy that continues in relation to the father in respect of a want of parenting capacity. The Court finds that the father's lack of empathy extends to both the mother and the children, the subject of these proceedings.
The Court finds that this lack of empathy as identified by the court child expert is of considerable concern, given the relatively young age of the children the subject of these proceedings, and that this factor further supports the finding that it is not safe to do so within s 60CC(2)(e) for the children to have the benefit of having a more meaningful relationship with the father than identity contact. The Court also finds, in relation to it not being safe to do so, that the father continues to suffer from a major depressive disorder with anxious distress which is not properly treated or managed, other than by the self-medicating unregulated steps of the father in smoking daily marijuana.
The Court finds the absence of specified and identifiable doses in the medicinal cannabis taken by the father increases the risk to the children of physical, psychological and emotional harm from the father.
The Court finds the continuing failure of the father to obtain proper and continuing counselling means that his mental health is inadequately managed and this is likely to continue in the long-distant future. The Court in this regard has taken into account the failure of the father to comply with orders made by this Court on two separate occasions to disclose the names and details of the medical practitioners he has been seeing which were not complied with. The belated filing by the father of the affidavit dated 8 July 2025, which was more than a month outside the time ordered by this Court, meant that the mother and the ICL were unable to take advantage of subpoenaing further material from the medical practitioners identified in the material provided by the father in his supplementary affidavit.
The Court did hear argument as to whether the father's affidavit of 8 July 2025 should be received into evidence and determined that it was in the best interests of the children for the Court to receive that material into evidence. The report provided by the father in that affidavit of his clinical psychologist, Mr KK, identified only four attendances between 9 January 2025 and 20 February 2025 upon that psychologist. The report itself was dated 26 May 2025. The report in its recommendations identified that the father requires ongoing psychotherapy and additional psychological support to address PTSD and comorbid anxiety and depression and referred to both individual trauma therapy and needing social support.
It is apparent from the terms of the report itself and its date that the father did not continue with his therapy from the psychologist after 20 February 2025. The Court rejects the father's evidence that he was unable to afford to do so. The Court accepts the evidence given in cross-examination that he had preserved financial funds so that he could obtain accommodation and accepts the submission of the ICL and the mother that in these circumstances the father's explanation for the cessation of the therapy with the psychologist being due to a lack of funds must be rejected. The failure to continue with that therapy with the psychologist is consistent with the history of the father in dealing with mental health practitioners and further supports the finding by the Court that his mental state is not likely to improve in the long term.
The Court prefers the opinion and evidence of the psychiatrist Dr W, to that of the psychologist, Mr KK. Given the identified limitations expressed by Mr KK, that he is the father's treating psychologist and has a bias in his report and that his conclusions are based on that relationship and the request made by the father, the Court places no weight on the opinions expressed favourable to the father in that report, suggesting that the father is capable of extended visits with the children and that it will motivate the engagement of the father with his therapy. The Court rejects the opinion by Mr KK that there is no clinical evidence to suggest the father's mental health poses a direct risk to his children. The Court rejects the opinion by Mr KK that the contact will be beneficial for the children. The foundation for the opinions expressed by Mr KK were wanting and amount to generalised conclusions on which no weight can be placed.
The Court finds that there is no ongoing targeted mental health intervention that the father is undertaking that supports the conclusion of Mr KK as to the father's capacity as a parent. The Court rejects the opinion by Mr KK that the father has shown any understanding or insight in relation to parenting from his online courses. In that regard, the father, in the affidavit that annexed that report, included in paragraph 13 a voluminous number of courses in respect of which he said relevantly:
These courses also inform me that there is no space for domestic violence in community and the importance of ensuring the safety of everyone in the family and in the community and also help me overcome the abuse I have been inflicted to in my life. Further, the courses also helped me to overcome the grief, loss and trauma of myself not being able to see and spend time with my children. ( emphasis by italics inserted)
The evidence identified reflects the father, in his most recent affidavit, continuing to see himself as the victim and reveals, in the context of the courses he has undertaken, no insight or accountability in respect of his past family violence and no insight and accountability in respect of his continuing denigration of the mother. Further, that context, in terms of victim and lack of insight and accountability, is itself repeated in the report by the psychologist Mr KK, which reinforces his own accepted bias, where he refers to:
There is a history of tension between [Mr Cagley] and his ex-partner (the children's mother). I am concerned that the way [Mr Cagley] has been represented to the Court by his ex-partner is inaccurate and has caused undue harm to their children and also further psychological harm to [Mr Cagley]. ( emphasis by italics added)
The conclusion expressed by the psychologist reflects an actual bias that undermines any weight being given to the opinions that he has expressed and for this independent reason, the Court place no weight on the opinions supportive of the father expressed in that report.
Further, that conclusion just identified reflects the ongoing victim role of the father and a complete lack of insight as to the current position in respect of the limited visitation to the children, being one in respect of which it is the father’s fault and he has taken no responsibility or accountability for that state of affairs.
This reinforces the Court's concern that it is not safe to do so in respect of promoting more meaningful time than identity contact between the father and the children.
The Court finds that the opinion expressed by Mr KK as to the father's ability to meet the children's needs can be given no weight, and the opinion as to the father showing a relatively high degree of insight and awareness with psychological triggers and ways to manage these and that this insight is a protective factor can also be given no weight. There is no proper foundation for these opinions and they amount to no more than generalised conclusions.
The opinion expressed that the father has displayed commitment and engaged to follow up in regards to developing parenting skills prior to commencing therapy have no proper foundation, and the Court gives that opinion no weight.
The Court also finds that the opinion that the father is committed to ongoing therapy to address PTSD and comorbid anxiety and depression can be given no weight and that there is no foundation to support that generalised opinion.
It is not necessary for the Court to repeat the derogatory terms used by the father to describe the mother, and the Court finds, on the father's evidence, that he remains of the belief that his issue of time with the children is the fault of the mother, and due to the mother's manipulation. The father suggested in evidence that he would not make disparaging remarks in front of the children. The Court does not accept that the father has the capacity to restrain from making such derogatory remarks. The father was clearly unable to do so throughout his evidence to this Court and displayed a similar state of mind in the interview with the court child expert.
Further, the Court finds as explained above that this is not a case where the Court can find that the father will comply with Court orders. The history of the matter, in relation to the provision of details in respect of medical practitioners, as well as the failure to comply with the order in respect of the filing of the father’s most recent affidavit, is a sufficient evidentiary basis of itself to support the Court's conclusion that the father would not be capable of complying with Court orders in relation to trying to frame constraints that might protect the children from the father denigrating the primary carer, and undermining/ destroying the relationship of the children with the primary carer. In the course of his evidence, the father made reference to criticising the mother for complying with the strict letter of the orders made by the Court. Implicit in that characterisation is the recognition of the father's willingness to disregard Court orders.
Further, the Court finds that the father has regularly, when engaging with the children, engaged in manipulative conduct by seeking to identify, with the children present, when he will next see them. The Court does not accept that this was other than intentional coercive behaviour, by the father, to control the mother. As identified above the Court accepts the mother's evidence that the father threatened to withhold the daughter unless the mother had sex with the father. That type of controlling behaviour is family violence and reflects a want of parenting capacity and a complete absence of empathy for the child in relation to seeing the child's primary carer while withholding the child until a recovery order was made.
As earlier explained the Court finds that the father's lack of empathy in relation to his children is a further basis upon which spending meaningful time with the father other than identity contact is not safe to do so. For the reasons the Court has already given, the Court is not satisfied that there are orders of restraint in relation to time with the father that could adequately protect the children from psychological and emotional harm by the father by denigrating the mother and undermining or destroying the primary care relationship between the children and the mother. The Court finds that the risk of significant harm to the psychological and emotional development of the children through the father's denigration and manipulation is highly likely.
The Court finds the incident of X asserting that she had been hit by the mother was both untrue, was induced by the father and was an attempt by the daughter to try and ingratiate herself in the eyes of the father. That type of manipulation is likely to cause greater significant unacceptable risk of harm to the psychological and emotional development of the children by undermining or destroying the relationship with the primary carer, than the harm the children will suffer from the loss of more meaningful contact than that of the identity contact orders. The Court finds the unacceptable risk of harm to the children if there was other than identity contact orders with the father is highly likely. The Court finds that this unacceptable risk of harm is a greater harm than the children will suffer from the loss of a more meaningful relationship with the father. The identity contact orders are not no time orders and this also reduces the harm the children will suffer from the identify contact orders in the loss of their more meaningly relationship with the father.
Further, the Court finds that unsupervised time by the children with the father creates a real risk of psychological and emotional harm by the father, denigrating and undermining the primary relationship of the mother. The Court finds that the degree of that risk is extremely high given the father's daily smoking use of marijuana. The Court also finds that this self-administered medication for the father's mental health is not one that has achieved a stability or removed the current diagnosis of which the father continues to suffer as identified by the psychiatrist, Dr W.
In these circumstances, the father consuming unidentifiable quantities and dosage of marijuana, creates a real risk of the father being unable to restrain himself from physically disciplining the children. The Court finds that that risk is real given the prior physical corporal punishment that the father identified he had given his two older children and to which he was subjected. The Court places no weight on the assertion of the father that he would not do so.
The Court also finds that that consumption of marijuana if there were overnight time gives rise to the real risk of neglect of the children, amounting to family violence. The Court finds the degree of that risk is high given the unknown quantities of marijuana being consumed by the father every night. The Court finds that the proposals advanced on behalf of the father are ones that are not safe to do so for the children. Further, the Court finds that the proposals advanced by the father give rise to a real risk of significant psychological and emotional harm by the father, undermining and destroying the primary relationship of the mother with the children by denigrating the mother and by manipulation. The Court finds that the likelihood of that risk is extremely high.
The Court finds given the history of the failure to comply with the Court's orders that the father would be unable to comply with Court orders to protect the children in a way that would not undermine and manipulate the children so as to impair, if not destroy, the primary carer's relationship with the children.
In relation to s 60CC(2)(f) the Court has taken into account that these children are at a young age and unlikely to be able to emotionally and psychologically cope with the denigration of the mother, likely to occur by the father, and will be unable to appreciate when being manipulated by the father to impair or destroy the primary relationship with the mother. In relation to s 60CC(2)(a), the Court finds the history of family violence is one perpetrated by the father upon the mother. In relation to the AVOs that were obtained by the mother, the Court finds that the mother's evidence is to be accepted and that this breaches by the father heighten the unacceptable risk to the children and the mother.
As explained above the Court does not accept that the mother assaulted the father and that the AVO against the mother in favour of the father, was actually family violence by the father and the circumstances explained by the mother, accepted by the Court, do not support any want parenting capacity by the mother. The AVO for alleged protection of the father should not have been granted. The father was at no time in need of protection from the mother and the Court rejects his evidence that he was scared of the mother. That evidence by the father was untruthful. As explained above the Court has taken into account that there is a risk that is imposed by the child H, which is addressed by constraints imposed upon the mother. Given the credibility of the mother, the Court is satisfied the mother will comply with those constraints.
The Court finds that the family violence perpetrated by the father as identified in the mother's evidence and as reflected in the continuing denigration of the mother in the evidence given by the father reinforces the finding that this is not a case where the Court can make a more favourable order for more meaningful time by the father with the children. The Court has taken into account that the identity contact order does give rise to a risk of psychological emotional harm to the children, but accepts the court child expert’s evidence that such potential harm is outweighed by the harm that would be done to the children, in terms of their psychological and emotional development, by the father undermining and destroying the primary relationship with the mother. The Court finds the degree of risk of the father engaging in that conduct is, as earlier identified, extremely high.
The Court also finds that the mother is a person who is vulnerable, having been able to be manipulated by the father, a proposition supported by the court child expert, and that her capacity to cope with her primary role in meeting the children's needs is likely to be materially impaired, if not destroyed, if the father were to spend more than the identity contact time with the children. The Court finds that the identity time reflects a lesser level of risk of emotional and psychological harm to the children than if the Court made a no-time order. The Court is satisfied that the mother will be able to cope with meeting the children's parenting needs if the identity contact orders are made by the Court.
The Court finds that the restraints proposed by the ICL are all ones appropriate and necessary, in the best interests of the children. The Court finds that the proposed parenting orders are in the best interests of the children. It is for these reasons the Court has made the proposed parenting orders.
The Court finds that this is a case where no costs order should be made in favour of the ICL, under s 114UC. In this regard, the Court considers that each party would suffer financial hardship if either party had to bear a proportion of the costs of the independent children's lawyer.
The Court notes that it raised with the ICL whether this was an appropriate matter in which the Court should pronounce its final orders, and reserve its written reasons. The Court identified that this would bring to an end the interim parenting arrangements, and that continuing the same would have an impact on the children.
The ICL supported the making of such orders, and reserving written reasons if the Court was in a position to do so. The Court was satisfied, having heard the evidence, that it was in a position to make final orders and that it would publish its written reasons as soon as practicable and would preserve time to appeal until the publication of the written reasons. The Court took into account the best interests of the children and s 102NE, the objects in s 60B and the principles in s 43 in deciding to pronounce orders and reserve the written reasons.
I certify that the preceding five hundred and thirty (530) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 31 July 2025
0
2
1