Hawley and Wiggins (No 2)

[2019] FamCA 777

FAMILY COURT OF AUSTRALIA

HAWLEY & WIGGINS (NO. 2) [2019] FamCA 777

FAMILY LAW – PARENTING – interim orders – impact on the children of the incarceration of the father.

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross‑examination of Parties) Act 2018 (Cth)

APPLICANT: Ms Hawley

RESPONDENT: Mr Wiggins

INDEPENDENT CHILDREN’S LAWYER: Mr Lynch

FILE NUMBER: MLC 2565 of 2017

DATE DELIVERED: 14 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lynch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

Orders

1. The children X born … 2007, Y born … 2009 and Z born … 2015 (“the children”) live with the mother.

2. This matter be listed for mention before me on 12 December 2019 at 9.00 am.

3. The children spend time with the father between now and the final hearing of this matter from 5.00 pm Friday to 5.00 pm Sunday on the weekends commencing;

   a)Friday 18 October 2019;

   b)Friday 1, 8, 15 and 22 November 2019;

   c)Friday 6 and 20 December 2019;

   d)Friday 3, 10 and 17 January 2020;

   e)Friday 14 and 28 February 2020;

   f)Friday 19 and 27 March 2020;

   g)Friday 3 and 17 April 2020.

4. The father spend time with the children on Thursday 6 February 2020 from 4.00 pm until 7.30 pm.

5. The point of collection and return of the children for the purpose of all time specified in the preceding two paragraphs be at the turnstiles and ticketing area of Suburb K Railway Station.

6. The mother refrain from making plans to travel during the school holidays which fall in June/July 2020.

7. For the overnight time to be spent by the children with the father in the weekend commencing 19 October 2019, pursuant to sub-paragraph 3(a) of this Order, the father do all acts and things necessary to ensure that the children sleep in the residence of the paternal grandfather at L Street, Suburb M in the State of Victoria.

8. For all overnight time to be spent between the children and the father, after the weekend commencing 18 October 2019, the father do all acts and things necessary to ensure that the children sleep at either his residence or the residence of the paternal grandfather with the father to notify the independent children’s lawyer on the Thursday before any spend time weekend of which residence at which the children will sleep. In the event that there is a change of plans during the weekend to provide the independent children’s lawyer with prior notice of the change of plan.

9. The father facilitate an inspection by the wife of his premises at N Street, Town O in the State of Victoria on any date nominated by the mother between and including 15 to 17 October 2019. For such purpose, the father nominate a person to be present on his behalf and the mother is at liberty to be accompanied by a person of her choosing.

10. The mother notify the father and the independent children’s lawyer by not later than 12.00 noon on 15 October 2019 of her arrangements to inspect the said property. The mother is not at liberty to remove anything from the property during the inspection but is at liberty to video record or photograph the property or parts thereof.

11. By not later than 12.00 noon on 15 October 2019 the father do all acts and things necessary to take a comprehensive range of photographs of the dwelling on his property and the surrounding acreage as well as a video of the dwelling, associated buildings and surrounding acreage and send same to the independent children’s lawyer.

12. Pursuant to s 68P of the Family Law Act 1975 I specify that paragraph 5 of this Order, which provides for handovers to occur at Suburb K Railway Station, it is conceivable that the parties may be within 5 metres of each other which is contrary to the intervention order obtained 25 May 2018 which provides that the father not be within 5 metres of the mother.

13. Pursuant to s 68P(3) of the Family Law Act 1975 a Registrar of this Court provide a sealed copy of this Order to:-

    a)the Registrar, Principal Officer or other appropriate officer of the Magistrates’ Court of Victoria, being the Court which last made or varied the Family Violence Order under file reference …;

    b)the Victoria Police Centre, Records Services Division and

    c)the Child Welfare Officer of the Department of Health and Human Services (“the department”) marked to the attention of Ms P, Team Manager, Child Protection and Intake and attaching with that correspondence a copy of the correspondence from the department dated 13 June 2019; and

    d)The Registrar, Principal Officer or other appropriate officer of the Magistrates’ Court of Victoria at City E.

14. 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.

15. My reasons for decision be transcribed and, when transcribed, be placed on the Court file and a copy sent to the parties and to the persons described in paragraph 13 of this Order.

IT IS DIRECTED:

1. That the minute of orders of the independent children’s lawyer be marked Exhibit “ICL1” and remain on the Court file.

2. That the marked up calendar of time to be spent be marked Exhibit “C1” and remain on the Court file.

AND IT IS NOTED:

A.That, for the purpose of paragraph 68P(2)(d) of the Act, the injunction is to facilitate a handover in the public area between the mother and the father for the purpose of the children spending time with the father.

B.That the Court’s reasons for making an order which is inconsistent with the family violence order made on 25 May 2018 is that there needs to be a facilitation of handover for the purpose of spending time, the handover is to be done in a public place and neither party contends that they will necessarily have to come within direct contact of each other.

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

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This parenting matter concerns the children, X (12 years), Y (10 years) and Z (four years).  I have determined that it is not appropriate to proceed with the final disposition of the matter.  The course most consistent with the children’s best interests is to adjourn the proceedings and to trial a new parenting arrangement.

2. The most significant factor influencing my decision not to proceed to a final determination is that on 3 December 2019 the father faces more than 80 counts of breaches of family violence orders in the Magistrates Court at City E.  The family violence orders were made for the personal protection of the mother. 

3. The issue which now falls for determination by me is what parenting arrangements should apply between now and the final hearing which I have set down for 20 April 2020.

4. Mr Robinson of counsel appears on behalf of the applicant mother. 

5. The father appears in person.

6. This is a matter to which the mandatory ban on cross‑examination applies, by virtue of section 102NA of the Family Law Amendment (Family Violence and Cross‑examination of Parties) Act 2018 (Cth). The father was assigned a lawyer by Victoria Legal Aid (“VLA”) under the Commonwealth Family Violence and Cross-examination of Parties Scheme (“the Scheme”). However, the solicitors withdrew. Today the father says that he objected to VLA wanting to “take complete control of the case”, and that VLA was not prepared to confine the role of the appointed practitioner only to cross-examination of the mother. The father says that the VLA appointed lawyer would not permit him to negotiate on his own behalf. The father is aware that, had the matter proceeded to a final hearing, he would not be permitted to cross-examine the mother.

7. Mr Peter Lynch, solicitor, is the Independent Children’s Lawyer and appears on his own behalf.  He is the third Independent Children’s Lawyer in these parenting proceedings.  Previous Independent Children’s Lawyers voluntarily withdrew from the proceedings.

8. It is agreed that the determination of interim parenting arrangements is to proceed on submissions only.  There will be no evidence or cross-examination.  The Independent Children’s Lawyer has been in contact with the Family Consultant, who asks certain specific questions.  She was available by telephone but is currently overseas. 

9. I have permitted the parties to address me on certain current matters, such as future events concerning the children, which I take into account in my determination.  These include such things as X’s valedictory celebration at Q Primary School on 17 December 2019, a camp that she will attend on the weekend of 25 October 2019, and arrangements that the mother has for the long summer school vacation.  Otherwise, the parties are confined to the evidence that is in their affidavit material.

   RECORDED :  NOT TRANSCRIBED

10. The ambit of this dispute is narrow.

11. There are no orders yet made for allocation of parental responsibility. Each parent retains parental responsibility independently of the other pursuant to s 61C of the Family Law Act 1975 (Cth) (“the Act”).

12. The presumption provided for in s 61DA of the Act does not apply. That presumption is that, when making a parenting order in relation to children, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children. Section 61DA(2) provides that the presumption does not apply in certain circumstances, and in this case s 61DA(3) provides that the presumption does not apply when making an interim order if I do not consider it to be appropriate. I do not consider it appropriate that I determine parental responsibility in this tranche of the proceedings without having heard all of the evidence. This is a case of considerable complexity.

Background

1. The father is 52 years old.  The mother is 40 years old.  They commenced cohabitation in 2002 and married in 2004.  They separated on 26 December 2016.  They were divorced in 2018.  Post-separation, the mother moved to reside with her mother in the Suburb K area.  X is currently in grade 6 at Q Primary School.  Y is in grade 4 at the same school, and Z attends childcare.  

2. The father was formerly employed as a member of the public service, but resigned from that employment during the marriage.  He then retrained as a physiotherapist but he says, by virtue of various family violence orders the mother has obtained and difficulties that he says the mother has made for him, he is precluded from pursuing that employment.  He is unemployed, with sparse financial resources.  The mother is a public servant.  She is in full time employment.  She and the children reside with the maternal grandmother.

3. Time between the father and the children has been fraught since separation.

4. There have been extensive proceedings under state law for domestic violence or intervention orders. I detail these below in relation to ss 60CC(3)(j) and (k) of the Act.

5. My earlier reasons for decision in this matter appear under case neutral citations at [2018] FamCA 652 and [2019] FamCA 477.

6. All of the evidence in the case is untested, but it is common ground that the children, particularly the older children, are desperate to see the father and are in a sever state of anxiety as a result of not seeing him.  The difficulty is how to accommodate the father’s behaviour that has, to date, been self-defeating.

7. The children are in an invidious situation.  The older children have an awareness of their mother being complicit in keeping them from their father.  If the father goes to gaol, the children are likely to blame the mother even more so and become more estranged from her, at least emotionally.  As the parent they long to see will be in gaol and not accessible to them, they will be left without a parent upon whom they can rely and who can make them feel safe, in an emotional sense.  This is a situation which is as serious as it is frightening.

8. In the last two years, there has been numerous efforts to facilitate time between the children and the father.  During this time, the mother has prosecuted her case on the basis of the children requiring some protection from the father for risks that might eventuate in the future.  The father, to an extent, has stood on principle.  He wants to call to account those who accuse him of misbehaviour.  The consequence of the stand-off for the children has been that there are large gaps in their ability to spend time with the father.  Notably, for 18 months, commencing in April 2018, the children have not seen their father.  They are desperate to see him.  They grieve for the loss of him and worry about him.

Recent family report

1. To lend further context to this dispute, I quote the following from the most recent report of the family consultant, all of which appears under the heading, “Evaluation” (emphasis added):

   92. This report reflected that whilst the issue presented to the Court has been one of allegations of risk to the children, the actual risk issues are those between the parents which escalated rapidly at the point of separation and were inherent in their responses to the trauma of their separation. 

   93. Ms Hawley acknowledged that she has a dilemma as having repeatedly acknowledged that Mr Wiggins “…is not a risk to the children” and advising he “…is not angry with the children” she nevertheless continues to assert that risk to the children might be a future “…possibility,” and hence she requires control of the children’s matters and actively restricts their capacity to spend time and communicate with their father. The initial IVO was testament to such concerns and including that in her application Ms Hawley asserted Mr Wiggins had removed Z from Child Care which she now acknowledged as being an inaccurate account of events, but this assertion continues to be repeated and is clearly inflammatory. At its foundation there appears to be issues of parental control, not risk.  Whilst it is important to understand and identify relevant issues of risk, it is also important to separate those that are germane to adults from genuine issues of risk in relation to the children.

   94. In this regard Ms Hawley has acknowledged there was no family violence during the relationship and Mr Wiggins’s poor and at times abusive behaviour, largely through emails and texts, emerged post separation, and resulted in his time with the children being severely truncated.  Mr Wiggins asserted his poor behaviour arose in the context of Ms Hawley’s resistance to him spending time with the children and it is not behaviour to which the children have been directly exposed.  Ms Hawley’s assertions about Mr Wiggins are noted as a contrast to his recorded comments to the children in real time about their needing to behave and to co-operate with their mother and to provide support to Ms Hawley. 

   95. Problematically Ms Hawley’s focus on adult concerns has deflected from the children’s emotional needs and contaminated the children’s ability to have an on-going relationship with both parents. Ms Hawley acknowledged this difficulty in interview admitting that issues of concern were in relation to herself and any other adults who impacted on Mr Wiggins’s capacity to spend time with the children.  Ms Hawley again affirmed that the children were never recipients of his poor behaviour. Ms Hawley also explained she was aware how poorly Mr Wiggins would respond to the stress created by the separation not only from herself but particularly on being separated from the children.  Given the children’s deep connectedness with their father, Ms Hawley’s actions in separating the children from their father and ceasing communication appear to have served to inflame Mr Wiggins, rather than protect the children.  Significantly, for the children, this forced separation has served to create genuine risk about the emotional and psychological well-being of the children, arising from Ms Hawley’s action and a concern from which Ms Hawley remains disconnected. 

   96. Ms Hawley’s current advice is that as a consequence of breaches to the IVO Mr Wiggins will be incarcerated, and, from which it follows that the children will again feel penalised and be separated from their father.  Given Ms Hawley’s current inability to emotionally connect with the children’s distress, there are concerns about how Ms Hawley will manage this information for the children, and concerns arise that the children will again be left to conjecture about their father’s desire to see and spend time with them.  Over time, it is apparent that litigation on several platforms has increased the complexities that have inhibited the resolution of this matter and rendered Ms Hawley’s repeated claims of “…supporting” the father “…to spend time with the children” as disingenuous.

   …

   98.There have been claims about the status of Mr Wiggins’s mental health and his substance abuse but it needs to be reiterated that both parents were long-term substance abusers, only separation changed that scenario and mutual behaviours that were ‘ordinary’ during the relationship were identified as risk post separation.   Currently each parent claims to no longer use illicit substances, and although no supporting material has been provided it is apparent from his presentation that Mr Wiggins has become more settled, he demonstrates insight and he is less reactive to stressors.  If Mr Wiggins’s assertion about desisting from illicit substance use is accurate a ‘possible’ risk would have been ameliorated.   Contrasting with Mr Wiggins’s improved demeanour, overtime Ms Hawley appears to have become more distressed and vulnerable and she acknowledged being confused about how to respond to parenting issues. 

   99.The determination of the extent to which Mr Wiggins has underlying mental health issues that were impacted by an increased ingestion of toxic substances around the time of separation and post separation is beyond the purview of this report but does remain a significant consideration and clearly needs to be factored into assessments of his behaviour.  In addition, the sudden loss of a much loved partner, rapidly followed by the loss of contact with the children including an incapacity to communicate with the children, likely created a certain climate of despair for Mr Wiggins, which Ms Hawley identified as being Mr Wiggins’s probable response. Mr Wiggins has reportedly followed directions from his general practitioner (no report sighted) and sought counselling attempting to understand and address his issues, but there is a continuing need identified here for therapy focused around dealing with issues of grief and loss that will assist Mr Wiggins to be more cognisant of the intensity of his sense of loss and the corresponding impact of his conduct on other adults.  Ms Hawley has taken this journey also but has yet to address, through counselling, as recommended, her inability to separate adult issues from the children’s needs, or her difficulty being emotionally responsive to the needs of the children.

   100.It is important to note that inappropriate behaviour cannot be excused but may be understood in context and in this matter there appears to have been a dynamic dance for control orchestrated by Ms Hawley.  Descriptions of Ms Hawley’s management style indicate her unwillingness to address any difficulties directly, leaving this to others to manage and such behaviour was evident in her unwillingness to engage in or resolve any issues with the builders, to address any claimed genuine issues of risk in relation to the children or to manage as a parent the children’s emotional distress and queries about the absence of their father from their lives.  When Mr Wiggins tried to alleviate the children’s distress and explain, briefly then reorient the children to their normal lives, this was deemed as inappropriate behaviour.  It appears Ms Hawley has sheltered behind Mr Wiggins, exacerbated the professional concerns of others and the Court but at no stage has Ms Hawley told the children that she is a party to their difficulties.

   101.Observations of Mr Wiggins with the children have the appearance of him as an exemplary parent as he presents as inclusive, supportive and educative, actively cultivating the individual potential of each child. Together each family member is mutually engaged and issues explored are positive and focused and it seems unlikely that having achieved the goal of spending time together that father and children will dissect issues arising from the parental separation.  Mr Wiggins is not a ‘fun’ parent, but a parent focused on contributing the best to the children, understanding their needs and developing the children’s interests and their creative mind. The intensity of the children’s reciprocal relationship with their father correlates with the apparent high level of mutual regard and support modelled by Mr Wiggins and shared between father and children.  Although Ms Hawley may be a loved mother she is repeatedly described as disengaged and it is evident from the depth and strength of the children’s relationship with their father that Ms Hawley does not spend the time with the children that historically has been Mr Wiggins’s role.  These parental differences would have been harmonised in the parental relationship for the children but given the parental separation, the children report an immense yearning to experience the connectedness and joy that envelops them when they spend time with their father, and the curiosity here is, in fact, around whether this intensity of relationship is actually what Ms Hawley has sought to sever. 

   102.There is a profound need for X, Y and Z’s well-being and psychological health and social emotional development that parenting arrangements be normalised, consistent and predictable.  This would include the children spending regular time with their father, as directed by the Court and include the resumption of telephone calls that should also occur as normal and neither should they be recorded or subject to comment, unless the children raise concerns.

1. The family report has not been tested in cross examination.  However, without the writer being available for cross examination or the parties choosing to cross examine her, the report appears to be in an internally consistent analysis of the family.  Much of it rings true.  I give it weight in my determination today.  However, not as much weight as I would give it had the report writer given evidence orally and been cross examined.

Proposals

1. At the commencement of this hearing, the mother relied on her case outline.  It recited final orders sought with time predicated on the children’s time with the father being supervised by the paternal grandfather Mr S Wiggins.  This is not withstanding that, historically, the experience has been that involving the paternal grandfather has led to difficulties in the paternal grandparents’ relationship with the father.  As indicated, the father has, at times, refused to take the time with the children because of the requirement for supervision. 

2. The father, in his case outline,[1] sought a suite of orders, some of which cannot be made.  Essentially, he sought unsupervised time with the children. 

   [1] Exhibit “F1”.

3. The Independent Children’s Lawyer proposed a parenting arrangement operating on a four week basis including unsupervised time during the day from 10 am to 4 pm on Saturdays in week one, and from 10 am on Saturday to 4 pm Sunday on week three. [2]  However, in the running of the interim proceeding the Independent Children’s Lawyer moved his position to be more consistent with the recommendations of Ms D in her report, which was to commence unsupervised overnight time between the children and the father immediately.  During discussions with Ms D it was suggested by Ms D that there could be a postponement of the immediate commencement, but during the running of the case I was not informed of the basis upon which a postponement would materially assist anyone;  most particularly the children. 

   [2] Case Summary filed by the Independent Children’s Lawyer on 10 October 2019

4. On an interim basis, the mother’s case is that the introduction of immediate overnight unsupervised time between the children and the father is too much too soon.  Mr Robinson said, “It would disruptive of the children’s lives in the mother’s household, that the children are young, that the mother is the primary carer, that each occasion spent at the father’s home at Town O represents a three to four hour trip for the children one way.”  It was submitted by Mr Robinson that the children had regular sporting activities that would be impinged upon by a regime of frequent weekend time with their father, but that was ultimately not the case.  Mr Robinson stressed that granting relief as sought, being the granting of immediate overnight time between the children and the father on an unsupervised basis, represented the final orders sought by the father.  However, there is no underlying principle as to why that is not in the best interests of the children if, all other things being equal, I find that it is the case.

The best interests of the children as the paramount consideration

1. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.

RECORDED : NOT TRANSCRIBED

Determining the child’s best interests

1. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

2. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

   with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[3]

   [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. Whilst a great deal of this case is being given over to commentary about domestic violence and the intersection of orders of this court and intervention orders made under state law, neither the mother nor the Independent Children’s Lawyer have contended that the father represents any physical risk or danger to the children.  The mother’s primary concern is that the father will use time with the children to undermine her relationship with the children.  In particular, by telling the children his version of events involving the mother which will not sit well with the version of events she has presented to the children being, essentially, that she has been required to abide orders of the Court that they spend no time with the father or whatever time they do spend needs to be supervised by the paternal grandfather.

4. I am satisfied that meaningful relationship with both parents will be benefit beneficial to the children going forward.

The children’s maturity, sex, background and other characteristics[4]

[4] Family Law Act 1975(Cth) s 60CC(3)(g).

1. X is aged 12, Y is aged 10 and Z is aged four. 

2. X is currently in Grade 6 and will attend T School in 2020.  X cried on multiple occasions during the interview with the Family Consultant and was distressed at the thought of not seeing her father.  She expressed frustration at the limited information being given to her about the progression of the matter and aimed this frustration at the mother’s lack of communication with her.  Y also mirrored this frustration. 

3. Y is currently in Grade 4 at Q School and told the Family Consultant that he had friends at school.  He did however, detail three different events of aggression that he had displayed at school.  Y expressed concern about his anger with the Family Consultant reporting:

   Y acknowledged a growing issue with anger, which he was now trying to manage (by watching You-tube) and that “…I was angry with mum, for a while…it’s just that I am sad I am not seeing dad…it’s pretty important for me to see him, he is a big part of my life, he is really nice to me and I love him.” Y reported a strong sense his anger issue was related to his inability spend time with his father advising “…I think if this goes on (litigation) I will get angry and I am a bit frightened about his.”

4. Y was considered to be “very composed compared with the passion that X exudes but he was often moved to tears”. 

5. Z was observed as being “reasonably silent” and “shy” but was supported by his siblings in the play room.  The Family Consultant was unable to assess his speech development accurately but commented that it “did not appear to be age appropriate.”  Z is reported to be managing well at Child Care.

The children’s views[5]

[5] Family Law Act 1975 (Cth) s 60CC(3)(a).

1. There is one particular paragraph in the most recent family report by Family Consultant Ms D which touches on matters which particularly concern me in relation to the children’s view of the world. Paragraph 97 of the report reads as follows:-

   The children repeatedly provided clear descriptions of the continuous angst that is present for them as a consequence of their inability to see, and speak to their father.  X and Y have detailed their sense of impotence in relation to either their mother’s responses to their questions or most of the professionals with whom they have dealt, resulting in the children feeling emotionally isolated and unsupported.  Post separation the children report learning to compartmentalise their lives and that their feelings are not relevant to some of the people close to them and that, other than their father, no one is listening to their concerns.  The children reported a need to develop (unusual) self-control in response to their sense that the world around them is untrustworthy and that they cannot effect change and their anger is building.  This experience, is felt as persistent and apparently unredeemable, and their lack of needed support has provided the foundation for emerging mental health issues for the children. For X and Y, this is revealed by their sense of needing to be “…two people”, and to manage as emotional silos without support from the adults around them, and to control their intense feelings of sadness, fear and distress associated with not understanding what has happened to their life. The children note their difficulties are not valued or addressed with the same sense of urgency by their mother as themselves, and there is now considerable uncertainty expressed by the children about Ms Hawley’s actual role in events and her use of ‘the Court’ as a shield.   Y and X are clearly becoming aware of the ambiguity in Ms Hawley’s responses to their questions and are beginning to reflect that their mother’s failure to rectify the situation is a message that she does not support them having a relationship with their father.  This has become evident in the children’s questions about Ms Hawley’s veracity and suggestions that this questioning arises because of any comment or action by Mr Wiggins is to further demean the emotional welfare and intellectual endeavours of these children.  Unless this situation is better managed by Ms Hawley it will likely lead to unacceptable consequences both for the children, their future relationships and their on-going relationship with their mother. (empahasis added).

2. It is common ground that the children want desperately to see their father.  The Family Report demonstrates this, with X expressing that [71]:

   …she now “…understands that mum and dad don’t want to be with each other” but she cannot understand why this situation has translated into “…some reason (meaning) that we cannot spend time, or a lot of time with dad.  I like dad a lot I don’t think there should be a reason and it is relieving when we get to see him and we enjoy spending time with him.” X could not identify any fear, anxiety or concerns about spending time with either parent, she was at pains to say that she loves both parents but, crying now, acknowledged having “…a special relationship with dad, we bond well and always do fun stuff...I was used to an open relationship with dad (with Mr Hawley) he is so special.  My relationship with mum is very different, but I like mum a lot…it is so sad.”

   … her persistent feeling is distress “…because I feel sad” to an extent that she believes her mother does not comprehend “…how intense my feeling are” and that X “…is terrified” she won’t see her father which is compounded by “…just worry, about what it is I don’t know.”

3. In relation to Y [78]:

   Y commenced the interview by reporting his greatest fear was that “…I won’t be able to see dad again” and he indicated his current lack of trust in the capacity of the adults around him to support his wish advising “…I worry that something will change and time with dad will stop, again.”  Y wondered why he was unable to see his father and why issues changed such as the suspension of telephone calls to the children.

   …“…I was angry with mum, for a while…it’s just that I am sad I am not seeing dad…it’s pretty important for me to see him, he is a big part of my life, he is really nice to me and I love him.”

4. I conclude that the unambiguous view of the children is to spend time with the father in a normal, unsupervised environment including overnight.  These children, more than most, appreciate that there are multiple factors affecting their ability to spend extensive time with the father including these proceedings, the father’s adverse reaction to his time with the children being curtailed to a point at which he thinks it is too compromised and becomes negative, the mother hiding behind the father’s predictable poor behaviour and looming criminal proceedings which could result in the father’s incarceration. There are many reasons why the children could have turned away from the father but they have not.  The older children are resolute.  Their views are strong.  The implication of not hearing what the children are saying, as interpreted by Ms D, would be very serious indeed.  Whatever the result, the children should be accorded the respect of knowing that their view has been taken into account.

The nature of the children’s relationships[6]

[6] Family Law Act 1975 (Cth) s 60CC(3)(b).

1. The mother is the children’s primary caregiver and they look upon her as such for day to day life.  I accept, however, that the children share a profound sense of connectedness with the father. The children’s relationship with the father is clearly a loving relationship without fear or sense of danger with both X and Y stating to this effect, as set out above.  In their interactions with the father in the playroom [86], “The children engaged intensely with their father, they become focused on shared activities and their discussion is about immediate pleasurable issues and their joy at this interaction is apparent to passing observers.”

2. The children’s appreciation (view) of the mother’s role in them not being able to spend time with the father is starting to disrupt the relationship between the mother and the two older children.  The disruption of that relationship with their primary carer is serious because there is not a secondary attachment figure who is accessible to the children.  The children are emotionally connected to their father, they yearn to see him and yet cannot.  The consequence of further separation of the children from the father (if he is incarcerated) is that it will put their relationship with the mother at risk.  Effectively they will be left alone.  That sense of isolation would be an exceptionally poor outcome for the children and one that will have consequences on their short-term welfare in terms of them being sad, depressed, angry and bewildered.  Their medium and long term emotional wellbeing will be jeopardised vis a vis their ability to maintain personal relationships and their relationship with authority figures. 

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[7] and the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[8]

[7] Family Law Act 1975 (Cth) s 60CC(3)(c).

[8] Family Law Act 1975 (Cth) s 60CC(ca).

1. The mother has parented the children pretty much to the exclusion of the father.  The parents are unable to converse; they are unable to discuss matters. 

2. This consideration sounds more in the context of parental responsibility and at the time final orders are under consideration, than it does now.

The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[9]

[9] Family Law Act 1975 (Cth) s 60CC(ca).

1. The mother resides with the maternal grandmother in Suburb T.  The mother is in full-time employment.  The father is not in employment, a predicament for which he blames the mother and in particular her having obtained family violence orders against him and rendering him unable to seek employment working with children or without disclosing the pending criminal charges for breaches of domestic violence orders.  He is a man of limited financial resources.  I cannot imagine that he would stint on his children but he would be reluctant to pay money direct to the mother.

The likely effect of any changes in the children’s circumstances[10]

[10] Family Law Act 1975 (Cth) s 60CC(3)(d).

1. The mother’s principal concern about extensive time between the father and the children is that the father will use that time to undermine her relationship with the children particularly by telling the children all the manner of ways in which the mother has either directly or indirectly persecuted him since separation.  The father says he will not do that.  It would certainly be unwise if he did.  It would also be a tragic waste of his time with the children, which is otherwise precious and should be enjoyed without contamination of parent conflict to the greatest extent possible.

2. Another concern contended on behalf the mother was that extensive time with the father would, install, or dislocate the children from their life in suburban Melbourne.  Originally this was put in terms of sporting commitments but ultimately returned after the children are not engaged in such, at least this year.  We have made allowance for a few events such as the valedictory celebration and a camp.

3. My concern is the impact on the children of the father being incarcerated in December 2019 or thereafter if the multiple braches of intervention order are found proved.  This will multiply the children’s sense of sadness, isolation and bewilderment not to mention their fears for their father’s wellbeing.  Not much has been said of the children wanting to protect the father from harm but my strong impression is that that motivation is very much in play.  My impression is that the two older children have been compliant as they have been with the mother because they fear that protesting about not seeing the father might lessen any prospect of the mother relaxing her attitude and allowing them to see him.

Practical difficulty and expense associated with face to face time and/or communication with the other parent[11]

[11] Family Law Act 1975 (Cth) s 60CC(3)(e).

1. The father lives approximately 250 kilometres from the mother’s residence.  He does not drive.  The children can be transported by train, which is a journey of some hours each way.  That said, the train is probably a more comfortable mode of transport than a motor vehicle or a bus.  The father proposes that the children will at all times be accompanied by him and will not be travelling as unaccompanied minors.

2. The mother raises an issue about the appropriateness of the father’s accommodation.  In my view that is best addressed by the father providing photographs within a short time frame and facilitating a physical inspection by the mother is requested.  It was suggested by the mother that the mother could deliver the children to the father’s home in Town O on the first period of the children’s overnight time there and take that opportunity to inspect the facilities.  I will not accede to that proposal.  Whereas it is of benefit to the children to know that the mother approves of where they are staying, it would not be to their benefit to understand that the mother was “inspecting” the father’s home and having a right to veto their occupation of it.  Furthermore, if the mother found the father’s residence to be unsuitable on the first occasion of overnight time, there is the issue of having no fallback position about what should happen.  If the mother wants to inspect the property, it will be incumbent upon her to arrange to do so in the balance of this week.  This matter was listed for 4 to 5 days but will conclude much earlier.  I am alive to the difficulties which personal inspection presents.  The mother and the father should definitely not be on property of the same time.  Neither should the father be required to leave his property unattended nor the mother leave herself open to an accusation of having moved or removed something at the property.  This is a practical matter for which I do not have adequate evidence and something which will fall to the parties to resolve, if a personal inspection is indeed necessary.

Capacity of the parents to meet the children’s needs[12] and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[13]

[12] Family Law Act 1975 (Cth) s 60CC(3)(i).

[13] Family Law Act 1975 (Cth) s 60CC(3)(f).

1. The mother has been criticised in the family report for not being able to recognise or address the children’s need to spend time with their father.

1. I accept that the father’s behaviour in the course of these proceedings demonstrates that he has no insight into the impact of his behaviour on others including not only the wife, but also court personnel.  The in excess of 80 counts of breaches of intervention orders with which the father has been charged do not involve any acts of physical violence.  They are confined, I am told, to posting material online, telephone calls to the mother and text messages to the mother.  I do not minimise these, but I do make the point that there are no allegations of physical violence.  He refers to the mother as a member of “fembots gestapo,” and has addressed correspondence to the mother’s solicitors as “Dear gaslighting mother phucker [sic]”.  It is easy to see that the father does little to help himself. 

2. A matter in issue in the proceedings is the husband’s mental health.  There was a diagnosis of the husband in 2006 of bipolar disorder.  The husband did not accept that diagnosis.  The diagnosis does appear to be attended by some doubt.  There was a subsequent diagnosis of post-traumatic stress disorder.  More recently, the husband was assessed by Dr B, psychiatrist, as suffering from paranoid personality disorder.  At page 36 of Dr B’s report dated 5 November 2018[14] Dr B opines: 

   In many ways, Mr Wiggins continues to present a diagnostic dilemma.  The situation is complicated by Mr Wiggins’s high intelligence and his familiarity with psychiatric terminology.  He also uses very inflammatory language towards those he sees as standing between him and his time with his children, without apparent regard for the consequences of his behaviour.

   On the one hand, he could be seen as a man who is justifiable angry at the exclusion of the children from his life, even if his responses are threatening and excessive.  This is almost certainly how Mr Wiggins interprets his current situation.

   Mr Wiggins has almost certainly suffered from two drug induced psychotic episodes in the past.  His lengthy email to her Honour’s associate is at times confused and suggestive of paranoia and thought disorder.  It raises the possibility of a paranoid schizophrenic illness or Delusional disorder, as suggested by Dr U.  However, I do not believe there is sufficient evidence to support either of those diagnoses.  On balance, I believe that the correct diagnosis is a Paranoid Personality Disorder described in DCM-V as, quote, “A pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning by early-adulthood and present in a variety of contexts.”

   My reason for preferring the diagnosis of Paranoid Personality Disorder is Mr Wiggins’s almost life-long, or at least since 1995, history of feeling persecuted by others – the public service, his subsequent employers, the builders who renovated their home in 2016 and, most recently, Ms Hawley, her legal representatives, the previous ICL and various “radical feminists.”  Even if there is a kernel of truth in some of Mr Wiggins’s beliefs, his responses are ill measured and disproportionate.  Mr Wiggins may also be subject to brief psychotic episodes when he is under extreme stress or under the influence of mind-altering substances.

Any family violence involving the children or any member of the children’s family and family violence orders[15]

[14] Affidavit of Dr B, affirmed 18 November 2018.

[15] Family Law Act (Cth) ss 60CC(3)(j) and (k).

1. The first application by the mother for an intervention order was made in the Magistrates’ Court and resulted in an interim order being made on 23 March 2017.

2. On 26 April 2017 a final intervention order was made naming the mother and the three children as Affected Family Members.  That Order was to last for 12 months.  The mother had instituted proceedings in this Court on 17 March 2017.

3. On 31 December 2017 the father was charged with multiple breaches of the intervention order for repeatedly sending emails to the mother telephoning the mother and publically posting on Facebook information about the children and court proceedings.

4. On 25 May 2019, an Order was made for 10 years.  The father was not present at the time that the Order was made, but had notice of the proceedings.

5. The intersection between state domestic violence laws and considerations under the Act has not been without difficulties in this matter. The parties have agreed to arrangements for handover of the children which could technically be in contravention of or inconsistent with the Intervention order currently in force. I have complied with the Act in terms of explaining the inconsistency in the reason therefore.

6. The father says that he is going to represent himself in the criminal proceedings before the Magistrates Court for the 80+ counts of breach of the intervention order.  I do not know if these are the charges laid on 31 December 2017 or further charges.

7. There are matters in these reasons which I am satisfied the presiding Magistrate ought know about from the perspective of the children.  Accordingly, I have directed that these reasons be provided to that presiding Magistrate and other persons.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[16]

[16] Family Law Act (Cth) s 60CC(3)(l).

1. Proceedings are expensive in terms of emotional and practical considerations.  Had I proceeded to make final orders at this hearing, I am confident that the parties would have required further Court time for another round of applications.  That would be in the event that the father is incarcerated or even if he is not.

2. I conclude that this is not the time to finalise proceedings.  Too much remains uncertain. 

Discussion

1. I have considered the submissions of the parties.  I have not heard the evidence tested but my strong impression is that the children have waited long enough to see the father.  The father’s behaviour is unlikely to improve.  It is not my intention to reward his behaviour.  At the end of the day, I am more concerned about the best interests of the children.

2. The children should commence on a program of quite extensive overnight time with the father, without supervision, that is to occur initially in the home of his parents.  By virtue of these being interim orders the parties can return to court easily without delay.  The parties have not previously been shy about bringing the matter on for mention before me.  I have no concern that this case will fall through the cracks or that something which is inappropriate would fail to be addressed. 

3. In detailed discussion with counsel the mother, the Independent Children’s Lawyer and the father, a calendar has been marked up with the interim spend time arrangements.  The parties can refer to that for the avoidance of doubt.  Ambiguity or a lack of certainty will cause trouble between the parents and, very quickly, burden the children.

Conclusion

1. I am satisfied that the Orders set out at the beginning of these reasons are in the children’s best interests.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 October 2019.

Associate: 

Date:  25 October 2019