The Court of Appeal left a father’s application for overnight access to his two children for a resumed hearing in the High Court, upholding an adjournment until 26 March 2015. The court did not make a new overnight access order in the judgment excerpt provided.
In a concurring judgment, Hogan J. said he agreed with Kelly J.’s judgment and proposed order. His judgment addressed only overnight access. Irvine J. also agreed with Hogan J.
The children, then aged nine and seven, lived with their mother, who was their primary guardian. Their father had sought overnight access. The High Court had ordered overnight stays at his home, with a nanny present, on 30 October, 8 November and 6 December 2014. None took place.
Hogan J. said the trial judge, White J., had accepted the nanny’s evidence that the children were settled and comfortable at their father’s home and had looked forward to the first stay. White J. found that the children “could well have stayed overnight that night” and “would have enjoyed it.” Hogan J. said the mother removed the children from the father’s home on 30 October and that the trial judge found she had unfairly berated the nanny. He described her actions as frustrating a court order.
Hogan J. also described sustained conflict between the parents and said the children had been grievously affected by it. He referred to evidence from Professor Sheehan that the children had no fears of their father, that he loved them and posed no threat. The children were anxious that their mother might be displeased if they stayed overnight, he said.
The High Court had adjourned the overnight access question on 12 December 2014 to 26 March 2015. Hogan J. said he had concerns about the resulting period without overnight access, but agreed to leave the adjournment in place in deference to White J.’s experience of the case and Professor Sheehan’s view that a brief pause was in the children’s interests.
He said White J. could allow proportionate, regulated and supervised overnight access at the resumed hearing if the evidence showed it was objectively in the children’s interests. That was a view about the future decision, not an order made in this judgment.