HAWLEY & WIGGINS

[2019] FamCA 477

FAMILY COURT OF AUSTRALIA

HAWLEY & WIGGINS [2019] FamCA 477

FAMILY LAW – PRACTICE AND PROCEDURE – Directions in relation to indirect cross examination by a litigant in person of an alleged victim of family violence – father’s contravention application (one count) dismissed – father’s application to remove the Independent Children’s Lawyer adjourned to allow the Independent Children’s Lawyer to be accorded procedural fairness – adjournment of various orders sought by the father to be made on an interim basis.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Hawley

RESPONDENT: Mr Wiggins

INDEPENDENT CHILDREN’S LAWYER: Sue Mcgregor

FILE NUMBER: MLC 2565 of 2017

DATE DELIVERED: 14 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

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 Raditch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;

And further noting that the parties have each been advised by the court:

(a) that pursuant to those requirements, neither party may cross-examine the other party personally;

(b) that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d) that a copy of these orders will be provided by the court to Victoria Legal Aid, which administers the said scheme.

IT IS ORDERED THAT:

1. The requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

2. The father’s Contravention Application filed 9 May 2019 be and is hereby dismissed.

3. The Court compile a bundle of the following documents, number the pages in the bundle consecutively and then provide two copies of each bundle to each party to the proceedings (“the bundle of documents”):-

   (a)      s 62G(2) family report of Ms D dated 16 October 2018;

   (b) s 11F Child Responsive Program Memorandum prepared by Ms D dated 18 November 2018;

   (c)Family Report of Dr F dated 29 August 2017 and letter from Dr F dated 25 September 2017;

   (d)      Report of Dr B filed 18 November 2018 and dated 5 November 2018;

   (e)Department of Health and Human Services letter to the Federal Circuit Court of Australia dated 13 June 2019;

   (f) Reasons for Decision of the Honourable Justice Bennett dated 8 August 2018;

   (g)       Reasons for Decision of dated 17 September 2017;

   (h)       Orders of Senior Registrar FitzGibbon dated 24 May 2017;

   (i)        Orders of Senior Registrar FitzGibbon dated 24 April 2018.

4. The parties, and each of them be and are hereby permitted to make use of the bundle of documents referred to in the preceding order in other courts exercising jurisdiction relating to the children or to the parties or any of them. The father’s application for permission to publish evidence in these proceedings or documents filed in these proceedings on social media and to other third persons be and is hereby dismissed.

IT IS DIRECTED THAT:

1. The transcript of telephone calls between the father and the children X born … 2007, Y born … 2009 and Z born … 2015 prepared by the practitioners for the mother and relating to phone calls occurring between 7 June 2018 and 3 April 2019 be marked Exhibit “…” and remain on the Court file.

2. The audio recording provided by the mother to the Court on a USB stick which the mother maintains contains all calls between the 7 June 2018 and 3 April 2019 be retrieved and be marked Exhibit “…” and remain on the Court file NOTING THAT today the father has been given a copy of that USB stick today in Court.

IT IS FURTHER ORDERED THAT:

1. In addition to the copy of the bundle to be produced by the Court pursuant to paragraph 3 of this Order, the Court prepare two further copies of the bundle and a Registrar of this Registry of the Court send one copy to each of the following:-

   (a) the Registrar of the County Court of Victoria under cover of a letter which states that these are documents from proceedings in the Family Court of Australia where the parties or some of them are involved in County Court criminal proceedings brought by Police Officer H as informant in proceedings No. …;

   (b) the Registrar of the ‘City E Magistrates' Court of Victoria under cover of a letter which states that these are documents from proceedings in the Family Court of Australia where the parties or some of them are involved in County Court criminal proceedings brought by Constable G and J as informants in proceedings No. … and ….

2. The further hearing of the father’s Application in a Case filed 24 April 2019 be adjourned to Friday 19 July 2019 at 9.00 am and the first matter for determination be the father’s application for the removal of the independent children’s lawyer.

3. In the event that the independent children’s lawyer withdraws from these proceedings and declines to further act as independent children’s lawyer in this case, she notify all other parties to the proceedings forthwith.

4. If the independent children’s lawyer informs the Court that she declines to act further in the proceedings there is no need for her to appear on 19 July 2019.

5. The independent children’s lawyer file and serve any evidence upon which she proposes to rely in relation to the application for her removal by not later than 12.00 noon on Friday 28 June 2019 and any party wishing to file evidence in response do so by not later than 12.00 noon on Tuesday 9 July 2019.

6. The father not file any further affidavit material in relation to his Application in a Case filed 24 April 2019.

7. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED:

A.That, for the avoidance of doubt, the evidence of Dr F, contained in his report dated 29 August 2017 and his letter dated 25 September 2017 has not been tested in cross-examination.

B. The evidence of Dr B, as contained in his report of 5 November 2018, has not been tested in cross-examination.

C. The father maintains that relevant material was withheld from Dr B and that Dr B placed reliance on earlier material which the father does not accept as accurate.

D.The father alleges that Dr F reports were prepared without Dr F having recourse to all relevant material.

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

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter is listed today and one of the applications before the Court is the father’s contravention application filed on 9 May 2019.  It’s a single-count application. 

2. It is alleged that in contravention of paragraph 8 of the Order made by me on 8 August 2018, the mother, since the start of April 2019, has contravened that order by failing, without reasonable excuse, to permit or allow the children to communicate with the father by telephone on Thursdays and Sundays between 7.00 pm and 7.30 pm for 20 minutes.

3. Paragraph 8 of the Order made on 8 August 2018 read as follows:

   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.

4. I have gone directly to the father to ask him to specify how the acts alleged against the mother can constitute a contravention of the Order made on 8 August 2018 when the operation of that order related to the period from 8 August 2018 until 31 October 2018.

5. Paragraph 5 of the Order made on 8 August 2018 provides that the First Day of Hearing is 31 October 2018.  It read as follows:

   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. Accordingly, paragraph 8 of the primary Order provides for telephone communication for the period between 8 August 2018 and 31 October 2018.

7. The father’s explanation is that on 31 October 2018, when the matter was mentioned by telephone link, it was agreed between the parties that he would henceforth have three periods of telephone communication each week with the children.  It’s otherwise said that it is in the best interests of the children that they maintain communication with the father and otherwise the father has submitted the various arguments in support of the proposition that it is in the children’s best interests to maintain contact or communication with him.

8. I have explained to the father that contravention applications are more technical than parenting applications may be.  A contravention application can, if proved, involve the imposition of serious penalties against the person who is found to have contravened an order.

9. In this case, the contravention alleged cannot be a contravention of paragraph 8 of the Order made on 8 August 2018 because that provision cease to operate on 31 October 2018.  It would be different if the Order of 8 August had provision for specific telephone communication but then included the words “or as may otherwise be agreed”.  That is not uncommon in cases in this Court but it did not occur here.  Accordingly, the contravention application will be dismissed.

10. By application filed on 24 April 2019, the father seeks, inter alia, an order that the Independent Children’s Lawyer be dismissed from further acting in these proceedings.  The Independent Children’s Lawyer is not before the Court today.  Mr Raditch, of Counsel, appears on behalf of the Independent Children’s Lawyer.

11. One basis of the father’s application is that the Independent Children’s Lawyer stated in a legal education presentation that it is permissible to lie to the Court by omission. 

12. The father relies on video/visual recording posted on the social media site YouTube which he says depicts a conversation between the Independent Children’s Lawyer and another legal practitioner.  The father has described the video as being one by the Independent Children’s Lawyer put online to train other lawyers.

13. I have looked at the video on YouTube.  The video has been played as an audio recording in Court, although it was not possible to get the picture to be played in Court.  The audio recording goes for some 49 seconds and a transcript of it is as follows:

    Ms Mcgregor: Well it’s not easy because and the difficulty is, and I think I told you this earlier, that sometimes the easiest choice is do you dob, do you dob on your other practitioner, um you know I had a terribly difficult case where a ah Judge asked me whether this was typical behaviour from the other practitioner… and it was.  But, do I tell the Judge yes and dob or do I lie to the judge?  So, I stared about a metre above the judge’s head and didn’t say a word…

    Other Practitioner: mmm

    Ms Mcgregor: Um because I couldn’t bring myself to either lie to the Judge or or dob on my fellow practitioner.

    Other Practitioner: mmm

    Ms Mcgregor: Um but it’s not easy…

    Other Practitioner: mm mm

    Ms Mcgregor: because one doesn’t want to be a difficult person known for…

    Other Practitioner: mm mm… yeah look I don’t think there is one way to deal with it, as you said before you’ve got to deal with it on a case by case basis but…

    End of video.

    RECORDED:   NOT TRANSCRIBED

1. The gravamen of the father’s application is that the Independent Children’s Lawyer is a person who is prepared to mislead the Court by omission if it relates to the behaviour of a fellow practitioner.  Inferentially, such an omission could be at the expense of the best interests of a child with which the proceedings are concerned.  It is a serious matter indeed.  I do not find today that the video records the Independent Children’s Lawyer saying that it is permissible to lie to the Court by omission.

2. I have adjourned these proceedings to 19 July 2019 which happens to be the next time I can sit to hear this matter for an hour. 

3. There are a few matters which I should make clear and which could impact on the proceedings on the adjourned date.   

4. First, the Independent Children’s Lawyer must be accorded procedural fairness in respect of the father’s application for the Independent Children’s Lawyer’s removal, so I am not determining anything on that application today. 

5. Second, if what is described in the video in fact occurred, the appropriate response to the Judge would have been that it was not a fair question and to ask and for the Independent Children’s Lawyer to say that she declined to answer.

6. Third, my preliminary view, but a matter on which I would seek submissions, is that the father’s application is about an apprehension held by him that the Independent Children’s Lawyer would fall short of upholding their duty as an officer of the Court.  It does not matter whether or not what is described on the video as having occurred actually occurred.

7. Fourth, my preliminary view, and one on which I seek submissions, is that the apprehension of the father need not necessarily be reasonably held.  Given the duty of an Independent Children’s Lawyer to act as an honest broker, to deal impartially with the parties, and also to act in the best interests of the child, it may be enough if the father’s apprehension is genuine (without necessarily being reasonable).

8. Fifth, it follows from the third and fourth points that I may request that Victoria Legal Aid assign another practitioner to this case to act in the place of the current Independent Children’s Lawyer without making any finding of wrongdoing or professional misconduct on behalf of the incumbent Independent Children’s Lawyer.

9. I also mention the following in no particular order of importance because all of them are significant features of the case.

10. First, the overarching consideration in these proceedings is the best interests of the children. 

11. Second, the current Independent Children’s Lawyer was assigned to this matter when the file was removed from an earlier Independent Children’s Lawyer because that practitioner elected to retire from the proceedings.  If I grant the relief sought by the father, the children will have their third Independent Children’s Lawyer.

RECORDED:   NOT TRANSCRIBED

1. Third, a significant issue in the substantive proceedings is the father’s behaviour and the extent to which that behaviour may be referrable to mental health issues which could or may not be amenable to treatment.  In very short compass, it is alleged that the father is paranoid.  That is not the only mental illness which he is alleged to have.  This is a diagnosis that the father does not agree with.  If the father is paranoid, that does not mean that the Court can disregard what he says and the allegations he makes.  Rather, it indicates that the Court must be ever more careful to scrutinise the evidence in the case in order to make a decision which is ultimately in the children’s best interests.

2. There are other aspects of the father’s application which I decline to determine.

3. There are nine paragraphs to the father’s application filed on 24 April.  Paragraphs 1 and 3 seek that the father be able to spend time with or have “custody” of the children.  These are applications which I would not deal with on an interim basis because there is a trial set down for hearing in October at which relevant evidence will be adduced and tested.  The father repeatedly submitted that the children are suffering by being deprived of the opportunity to see him.  My understanding is that the children want to see the father.

4. The final hearing is directed to the issue of what time (if any) the children should spend with the father.  The father is seeking to have determined on an interim basis, one of the central issues to which the final hearing is directed and necessarily without all relevant evidence being tested. I am not inclined to entertain the issue on an interim basis again.  It is in the best interests of the children that the determination be based on all relevant evidence which can be tested.  The Father stated repeatedly that the children’s welfare is being compromised by delays in the legal system.  However, the father apparently forgets that there was an extant order which entitled the children to see the father under the supervision of his parents of which the father refused to avail himself.  It is because the father has refused supervised time with the children that the children are deprived of seeing him.

5. Paragraph 2 of the orders sought is an order requiring the mother to inform the father within 24 hours in writing by email of incidents where the children suffer injury or are involved in violence at school.

RECORDED:   NOT TRANSCRIBED

1. It appears to be common ground that the parents share parental responsibility equally.  In the circumstances, if the children do suffer injury, I would expect that the mother would notify the father accordingly. 

2. Another order sought by the father is to restrain the mother’s lawyers from “misrepresenting communications from the father to the mother as threats”.  The relationship between a lawyer and a client is a confidential one.  I will not be making any orders which say what the solicitors for the mother can or cannot tell the mother.

3. The father also seeks an order that he be able to publish material on the internet about the children including by email and social media, providing that it isn’t threatening or intimidating or demeaning.  He has now clarified that application from the bar table saying, that what he really wanted to be able to do is to publish documents from these proceedings to other Courts where there are proceedings involving family matters.  Now clarified, that is a reasonable application.

4. I have made an order which provides for a bundle of documents to be produced by the Court and multiple copies to be given to each party to the proceedings and sent to two named Courts in Victoria which are dealing with applications concerning the family, although under other jurisdictions.  The father is less than happy that some documents have been included.  In these proceedings, his case will be that the opinions expressed by some of the expert witnesses, in particular Dr F and Dr B, are flawed by virtue of them having failed or neglected or having been prevented from taking relevant and pertinent information into account when forming their expressed views.  Neither of those practitioners has had their evidence tested by cross-examination and that should be noted clearly on the documents when they are put into the bundle. 

1. I have also directed that a copy of these reasons for decision be sent to the relevant Courts separately to the bundle, having regard to the delay within which these reasons might be published.

2. I will deal with the balance of the father’s application on the adjourned date, but make the following comments:-

   a)The father seeks an order – an injunction against the mother from recruiting third parties to stalk, harass, demean or conduct themselves in any form of surveillance on the father.  That is unlikely to be a matter which I will entertain on an interim basis given the conflict in the affidavit evidence as filed, and the fact that I have only one hour to deal with all of the matters on the adjourned date.  That is likely to have to await a final hearing, in which case the father should reproduce that as an order he seeks at the final hearing if, indeed, he continues to seek it.

   b)The father also seeks an order which requires the mother to undergo mediation with any expenses to be paid in full by her.  I fail to see how mediation of one party is going to assist the matter.  Arguably, the Court has power to order a party to attend mediation.  However, I can indicate that I would require very particular evidence to persuade me that I should make an order that somebody attend a mediation.  This is because if I have to make an order to get them to the mediation, they are unlikely to have the mindset and inclination to participate properly or effectively in the mediation.

   c)The father seeks an order “that requires a review and adjustment of property settlement taking into account matters that were neglected at the first settlement and responsibilities concerning spousal maintenance”.  I will, in due course, ask the father what jurisdiction I would have to make such an order.  I understand the basis of his application is that since the orders were made which finally altered the property interests between the parties, the father has ceased to be able to work as a physiotherapist.  He says this is because the mother has put in train a series of events which have had him classified or characterised in unfavourable ways professionally so that he is now unemployable.  On the other hand, the mother is in secure and ongoing employment and has, as he said he predicted, and has continued to receive increments in her income.  It seems to be a maintenance case brought after a final property hearing.  Alternatively, he is seeking that the orders finally altering the property interests between the parties be revisited, set aside and the Court’s discretion re-exercised.  It may be both. 

3. Finally, there has been a discussion today about the provisions of the legislation in relation to cross-examination by litigants in person.  It’s common ground that these proceedings would be caught by the new legislation. I commend the Independent Children’s Lawyer for having had the case re-listed before me to address this issue.  I commend the Independent Children's Lawyer for having had the case re-listed before me to address this issue.

4. The father has indicated that he has some understanding of the legislation.  Most importantly, he has confirmed that he understands he has to make an application to Victoria Legal Aid to be accepted into the scheme whereby he will be allocated a lawyer for the final hearing and that he has to do so promptly.  I will make the usual order in relation to that process. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 June 2019.

Associate:

Date:  19 July 2019