Hawley and Wiggins

[2018] FamCA 652

FAMILY COURT OF AUSTRALIA

HAWLEY & WIGGINS [2018] FamCA 652

FAMILY LAW – CASE MANAGEMENT – Mention to deal with father’s request for parenting application to be listed before first day of trial – further application adjourned to first day of trial for consideration at that time.

APPLICANT: Ms Hawley

RESPONDENT: Mr Wiggins

INDEPENDENT CHILDREN’S LAWYER: Ms S Macgregor

FILE NUMBER: MLC 2565 of 2017

DATE DELIVERED: 8 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Staindl

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Mr Wiggins In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

IT IS ORDERED THAT

1.Any subpoenas to produce documents raised pursuant to paragraph 3 of the Order made on 25 May 2018 be returnable by not later than 1 October 2018 and inspection be completed by all parties who wish to inspect same by not later than 12 October 2018 and any applications for the applicant or respondent to photocopy documents so produced be made to me on 31 October 2018. The independent children’s lawyer may photocopy documents produced on subpoena unless there is a specific objection by the person producing same to those documents being photocopied.

2.For the avoidance of doubt, any documents so produced be retained by the Subpoenaed Documents Section of this Registry of the Court and not be returned to the person producing same until further order.

3.Any party who wishes to rely upon the contents of taped telephone communication between the father and the children X born … 2007, Y born … 2009 and Z born … 2015 (“the children”), or any of them, on the First Day of Hearing set down for 31 October 2018 at 9.00 am produce the extracts of the tape recordings upon which they wish to rely to the Subpoenaed Documents Clerk of this Registry of the Court by not later than 12.00 noon on 8 October 2018 and contemporaneously notify my Associate – email … – that the recordings have been lodged.

4.Any party may attend the Subpoenaed Documents Section of this Registry of the Court prior to 31 October 2018 to listen to any recordings which have been produced by other parties pursuant to paragraph 3 of this Order.

5.The father’s Application in a Case received by the Registry and dated 27 July 2018 be set down for hearing on the First Day Hearing, 31 October 2018 at 9.00 am and any party seeking to respond to the father’s application in a case do so filing and serving a response and affidavit evidence by not later than 12.00 noon on 18 October 2018.

6.The time for compliance by the father with paragraph 2 of the Order made on 25 May 2017, as to an Undertaking of Disclosure, be extended to 12.00 noon on 15 August 2018.

7.Each party and the independent children’s lawyer provide to Dr B, psychiatrist, a copy of any document to which that party wishes Dr B to have reference for the purpose of his assessment, provided that all such documents are detailed in an index which is provided to each other party to the proceedings and to Dr B and any such documents so provided be provided by not later than 1 September 2018 and IT IS NOTED that this Order does not compel Dr B to read the documents or any of them.

8.The father have telephone communication with the children between now and the First Day of Hearing on Thursday and Sunday between 7.00pm and 7.30 pm for a duration of 20 minutes in total during which time the mother make the children available on the same terms and conditions as is provided for in paragraphs 14 and 15 of the Order made on 25 May 2018.

9.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to each party to the proceedings.

10.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawley & Wiggins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2565 of 2017

Ms Hawley

Applicant

And

Mr Wiggins

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me as an urgent mention requested consequent upon the father filing an application in a case with the Court and requesting a hearing date for same prior to the September school holidays.  This matter has been allocated a first day of hearing before me on 31 October 2018 at 9 am.  Orders have already been made for a family report to be prepared which should be released by 2 October 2018 subject to a report being undertaken and released by Dr B, a psychiatrist.  An appointment for the psychiatric report has been made for 24 September 2018.

2. The orders sought by the father, who represents himself in the proceedings and also does so today, run for some 15 paragraphs in length.  They comprise complaints about the mother’s failure to observe the responsibilities of joint parental responsibility and the entitlement to issue subpoenas.  Both of those are not appropriate matters for interim hearings.  Another is an alleged contravention.

3. Significantly, in the urgent application now filed, the father seeks unsupervised time or “custody” with the children.  The children have been entitled to and are still the subject of an order for the father to have supervised time with them regularly and frequently.  That is to be conducted out of the Suburb C Contact Centre.  It is common ground that since April or May 2018 the father has not availed himself of the opportunity to see the children.  He says that supervised time is an abusive environment, it’s not healthy for him or the children and it is financially prohibitive.  He has also referred to it as being dangerous for him, and I take that to be that he feels that he is exposing himself to undue scrutiny and possible criticism by the people who run the contact centre who he perceives are hostile to him. He says that they have interests adverse to the best interests of the children.

4. Supervision of time is not something that I would likely alter on an interim basis without testing evidence or some further social science evidence. Since the current orders were made, there is nothing that I can see in the material which is filed by the father or which is on the Court file and to which I have been taken which would justify me placing this matter in a duty list or putting it before another judicial officer prior to September 2018; accordingly, it will be adjourned to 31 October.

5. This further application of the father will be set down for hearing on the same day as the first day of hearing, and I will deal with it then.

6. I have cautioned the father about making interim applications which could potentially derail the final hearing. His response was that he preferred the best result over the quickest result. I understand the father’s motivation but re-iterate my concern that further applications at this stage might be self-defeating.

7. My impression is that the children enjoyed seeing the father and are likely to be missing him. If it is apparent from the psychiatric assessments of both parties and the family report that unsupervised time is a viable alternative, I would be amenable to considering the father’s application for interim variation on 31 October subject to all parties having some opportunity to test the family consultant’s evidence in cross-examination.

8. There is no assurance that I will change the interim arrangements that are in place. However, the first day of hearing on 31 October is really the first occasion on which I could realistically consider doing so.  

9. It would be most unfortunate if anything disrupted the preparation of the psychiatric reports and/or the family report. Both may signal a way forward to other arrangements to be considered on 31 October. Without that, I cannot see any arrangements further changing on an interim basis.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 August 2018.

Associate: 

Date:  28 August 2018