WICKHAM & WICKHAM
[2013] FCCA 2424
•28 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WICKHAM & WICKHAM | [2013] FCCA 2424 |
| Catchwords: FAMILY LAW – Practice and Procedure – notice of court event – notice of orders sought – failure to appear – undefended parenting orders. |
| Legislation: Federal Circuit Court Rules 2001, r.16.05 |
| Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Harrison & Woollard (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 Stevenson & Hughes (1993) FLC 92-363 |
| Applicant: | MS WICKHAM |
| Respondent: | MR WICKHAM |
| File Number: | AYC 192 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 28 October 2013 |
| Date of Last Submission: | 28 October 2013 |
| Delivered at: | Albury |
| Delivered on: | 28 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Belbridge Hague |
| Solicitors for the Respondent: | Self-represented and no appearance |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Wagga Wagga Family Law |
ORDERS
All prior parenting orders with respect to child, X born (omitted) 2008, shall be and are hereby discharged.
The mother, Ms Wickham, shall have sole parental responsibility for X.
X shall live with his mother.
The father, Mr Wickham, shall spend time with and communicate with X at such times and upon such terms and conditions as are agreed between the parents from time to time, and not otherwise.
Pursuant to s.68B of the Family Law Act 1975, the father shall be and is hereby restrained from:
(a)Taking X into his care;
(b)Taking or causing X to be removed from his mother’s care;
(c)Taking or causing X to be removed from any other person, agency or institution into whose care the mother has enrolled and or delivered X;
save in pursuant to order 4 above (being for the purpose of spending time and communicating with the X as agreed between his parents).
All outstanding parenting Applications and Responses are withdrawn and dismissed and all parenting issues are removed from the list of matters awaiting hearing (noting that property adjustment issues remain on foot).
The property proceedings in relation to Ms Wickham’s property adjustment application are adjourned to 10.00am on 4 December 2013.
The appointment of the Independent Children’s Lawyer is discharged with the Court’s thanks.
IT IS NOTED that publication of this judgment under the pseudonym Wickham & Wickham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 192 of 2013
| MS WICKHAM |
Applicant
And
| MR WICKHAM |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to both property adjustment and parenting arrangements for a young child X born (omitted) 2008. X is, accordingly, five years of age.
The parties
The parties to the proceedings are X's parents, Ms Wickham who is his mother and the Applicant, and Mr Wickham who is his father and the Respondent.
The proceedings are dealt with by the Court today on an undefended basis.
Mr Wickham attended upon the Registry earlier in the day for the purpose of delivering a letter and Notice of address for Service but having, thereafter, and notwithstanding advice provided to him by Registry staff as to the inadvisability of that course of action, departed the Court.
History of proceedings
The proceedings have been on foot for only a short time, having been commenced by an Initiating Application filed on 4 June 2013, some four months ago.
Notwithstanding the brief time that the matter has been before the Court the proceedings have involved significant usage of both the parties' and the Court's resources.
The proceedings first came before the Court on an urgent basis 12 June 2013. On that date the matter was dealt with by Dunkley J by telephone.
A number of Orders were made on that date, including Orders for the child to live with the mother, and to spend time with the father for overnight periods each week from Thursday to Friday and from Saturday to Monday. In order to facilitate that time the mother was to deliver the child to the home of the paternal grandparents, (omitted), being the Notice of Address for Service now provided by Mr Wickham.
It is clear from Affidavits filed and communications by Mr Wickham and his parents that Mr Wickham does not reside at that address. The home of Mr Wickham’s parents is provided as his address for service notwithstanding the prior complaint of his parents that process not be provided to Mr Wickham care of them by email or otherwise.
Following the first return date of the proceedings and on 26 August 2013, further Orders and directions were made. On that date the proceedings came before the Court in Albury as part of the business of that circuit. The listing that day arose as both the adjourned return date of the proceedings (as allocated by Dunkley J) and being the return date of an Application for Contravention filed by Mr Wickham.
On 26 August 2013 the matter consumed a significant portion of the Court's time and at the conclusion of the matter that day a number of Orders of significance to today's determination were made including:
a)Firstly, the father's Application for Contravention was withdrawn without order for costs.
b)Secondly, the parties were directed to attend a conciliation conference.
Arrangements were made, notwithstanding the usual practice on this circuit, for that conference to be conducted by a Registrar of the Parramatta Registry of the Court and so as to expedite the address of those matters. Arrangements were made for the conference to occur by video link between the Albury and Parramatta Registries and on the basis of my courtroom in Parramatta with video facilities being vacated by me for the day to facilitate attendance.
The conference did not proceed as Mr Wickham did not attend, having forwarded an email to the wife's attorneys very shortly prior thereto indicating he could not attend but not specifying any reason why.
An Independent Children's Lawyer was appointed. Notwithstanding that appointment the proceedings returned to the Court on at least one occasion as a consequence of further Applications in a Case filed before the appointment of the Independent Children's Lawyer could be facilitated.
A number of property orders were made on an interim basis to facilitate preservation of assets. Those orders were made in response to an Application in a Case which had then been filed by Ms Wickham, and on the basis of some urgency being apprehended as Mr Wickham had resumed occupation of the home, the title of which is recorded in the sole name of the wife, and had not attended to payment of expenses relating thereto including mortgage, Council and Water Rates, insurances and utilities.
The above orders were made with the knowledge and consent of Mr Wickham and required that during his occupation of the property that he meet all payments as and when they fall due with respect to the mortgage, council and water rates, insurance, and utilities and outgoings.
There would appear to be a clear breach of those orders by Mr Wickham who has, in any event, now vacated the property.
A number of parenting Orders were also made. The Orders that had been made by Dunkley J were suspended. That is not to suggest any criticism of the Orders, however, a number of facts and circumstances had arisen since their making which rendered them impracticable and unworkable. They are matters which remain relevant today.
Orders were then put into place which provided pursuant to section 61C of the Family Law Act 1975 for the parents to each have parental responsibility for X whilst he was in their care. The parents agreed that the exercise of equal shared parental responsibility, as previously Ordered, had broken down and was no longer practicable nor in the child's best interests.
Pursuant to the Orders made 26 August 2013, X was to live with his mother and was to spend time with his father for similar periods to those previously ordered, but upon a number of terms and conditions, including the presence of one or other of the paternal grandparents together with prohibitions with respect to denigration, discussion of proceedings with or in the hearing or presence of the child and requiring that X sleep at the home of the paternal grandparents and an undertaking by the grandparents (who were present in Court) to notify the mother if any of the prohibited behaviours occurred.
There is clear suggestion on the evidence that the above behaviours have occurred. However, there has been no notice to the mother. Indeed, the only involvement of the paternal grandparents since those Orders arises in the context of a withholding of the child which does neither they nor Mr Wickham any credit.
An injunction was also made pursuant to section 68B of the Family Law Act restraining the father, Mr Wickham, from contacting the mother, save and except as provided by the Orders. The net effect of that Order was to preclude the father contacting the mother other than for the purpose of telephone communication with X on days when he was not spending or due to spend time with him. That Order has clearly been breached, as it would seem, as an intervention order subsequently made by a State Magistrate.
The proceedings next came before the Court on 16 September 2013, the third occasion in three weeks. Again, at that time, an Application in a Case had been filed by the mother seeking to address a number of matters, both with respect to property and parenting.
It would be trite to observe that there has been a cascading deterioration of arrangements, both financially and otherwise, since the separation of these parties and certainly since the commencement of proceedings. Any order made by the Court, including those made by consent, has failed to remain appropriate or efficacious for any significant period. It begs the question “why?”
On 16 September 2013 a number of Orders were made. At that point in time the appointment of the Independent Children's Lawyer had not yet been facilitated. There had been no time for it to occur.
To address the issues and concerns which arose at that time variations were affected to existing Orders, including the facilitation of changeover by persons other than the mother, the child having been retained by the father and his parents as the maternal grandmother rather than the mother had attended to collect the child only to find a note pinned, Martin Luther-like, to the front door of the paternal grandparents' home turning her away.
An Order was made restraining Mr Wickham from filing further material, save as required by the Court's rules or as ordered by the Court. That arose in circumstances whereby Mr Wickham has sought to provide to the Court, as a stream of consciousness as it were, with a running commentary of every event suggested to relate to or to be connected with the parties.
By that point Mr Wickham had filed no less than six Affidavits in the space of less than three weeks and notwithstanding that the only application that had been filed by him was an Application for Contravention which had been withdrawn. Each of those Affidavits was increasingly lengthy and increasingly difficult to comprehend as to either the basis for it having been filed or its contents.
The matter next came before the Court on 16 October 2013. On that date, not dissimilar to the Conciliation Conference, Mr Wickham did not appear.
A number of Orders were then made with respect to the property adjustment issue of the proceedings and requiring Mr Wickham to:
a)Vacate the home (it would appear, however, that he already had done so);
b)Deliver up to the wife the keys for the property, (so as to allow and enable the wife to proceed with its sales);
c)Remove a caveat (which has not occurred); and,
d)Otherwise prepare the property for sale and sell it.
Order 11 of the Orders made on that date provided that in the event Mr Wickham should fail to file a Notice of Address for Service prior to or appear in person on the adjourned return date, whether legally represented or not, that the matter would in all probability, and subject to further submissions, proceed on an undefended basis as against Mr Wickham.
All extant Applications were adjourned to 28 October 2013, (today), and being the date to which the proceedings had been adjourned from an earlier occasion when Mr Wickham had been present (namely, 16 September 2013).
Due Process
Mr Wickham does not appear today. He has, as indicated, delivered to the Court this morning a letter. I am advised by Registry staff, who, through past dealings, are very familiar with Mr Wickham, that he delivered it in person.
The letter is of four pages in length. It is trite to observe that the Court does not conduct its business on the basis of correspondence. The Court conducts its business by personal attendance and through a determination of proceedings commenced by application and by reference to evidence on oath filed in support.
The letter does not comprise evidence and will not be considered for any evidentiary purpose other than satisfaction as to matters relating to due process or corroboration of the mother's allegations to the extent that there are admissions against interests contained therein. The letter commences:
I am writing this letter to you hoping that common sense will prevail here. I will not be able to attend today and hope you understand the following:
It then sets out under headings “Parenting”, “Property”, “Business” and “Closing”, what might be considered submissions. Certainly the contents of the letter are not considered on any basis other than as above.
Clearly, Mr Wickham is aware that the matter is listed today. That is clear from the Affidavit material filed in Ms Wickham's case alluding to same and deposing to compliance with Orders as to service previously made. Those Orders required that material be forwarded to Mr Wickham, who at that point in time had no Address for Service and his whereabouts being unknown, care of his parents and via their email address. I shall return to that issue shortly.
The correspondence also makes clear that Mr Wickham is aware that the matter is listed today.
With respect to parenting there are four numbered paragraphs. Mr Wickham clearly, by any cursory examination of the contents of the letter, is aware of the Orders that are sought by Ms Wickham in each of her three Applications before the Court with respect to parenting, comprising:
a)An Amended Initiating Application filed 10 July 2013;
b)An Application in a Case filed 19 August 2013; and
c)A further Application in a Case filed 5 September 2013.
Each of Ms Wickham's Applications propose that time between Mr Wickham and X be supervised.
The letter commences:
There is absolutely no reason for there to be “supervised” visitation to my son.
Thus I am satisfied of Mr Wickham’s knowledge of that sought by Ms Wickham (and his opposition).
The letter goes on to make a number of assertions of an absence of criminality, conviction or offence by Mr Wickham and asserting that “I am a great father”.
The letter alleges that Mr Wickham was “the primary carer of the child for the first five years of his life”. X is now five and, accordingly, one can infer that it is asserted by Mr Wickham that he has always been the primary carer for the child whatever is intended to be conveyed by use of that phrase.
As is a consistent theme, almost to the point of a “rant” throughout material provided by Mr Wickham to the Court, Mr Wickham makes clear that he wants an order for X to spend equal time with each parent "as he and I both deserve". Mr Wickham’s letter asserts "There is no reason for this not to occur".
There is, by any cursory reference to the evidence, abundant reason for that not to occur.
The letter suggests under the heading “Property”:
Just after the last time I saw you in the Albury Court I made the decision to move out of the family home.
That would appear to be a reference to the last time that Mr Wickham appeared before the Court, an appearance on 26 August 2013, being the very day on which Orders had been made for Mr Wickham to meet financial responsibilities with respect to the home as he was in occupation of it. Mr Wickham had consented to that ordered arrangement to forestall his departure from or sale of the property as Ms Wickham had before the Court an Application in a Case which sought orders for sole and exclusive occupation.
Vacation of the home immediately after the orders permitting, on terms and conditions, his remaining within the home would not appear to be an action on Mr Wickham's part that he has not shared with any person until today. Mr Wickham suggests that Ms Wickham is fully aware of that position, however, she clearly was not.
Mr Wickham is clearly aware of the Orders made by me on 16 October 2013 as he refers, in paragraph 2 of his letter, to those Orders. Those Orders had included a requirement for Mr Wickham do all things necessary to withdraw and discontinue the caveat he had recorded against title to the home. Title of the home is held in Ms Wickham's sole name. Mr Wickham refers to that Order specifically (in the numbered paragraph 2):
I do not believe it is right to ask someone to drop their interest (cavent) [sic] in a marital property.
In the event that Mr Wickham feels that it is "not right" for that Order to have been made he has appeal rights, which he would not appear to have exercised. In any event, the Order stands.
An Order pursuant to section 106A of the Family Law Act 1975 has been made and no doubt forthwith after these proceedings are concluded today Ms Wickham will make application, as she will now be required to do, to have a Withdrawal of Caveat signed by a Registrar of the Court.
The correspondence also suggests that Mr Wickham does not trust Ms Wickham. He feels that he must maintain his privacy and suggests that this be done by changeovers occurring through school or day care so that, as he describes, “each parent can keep their address secret from the other.”
Intervention orders are a matter of some moment with respect to these proceedings including as to orders which are extant, proceedings which are extant and applications that have been made in the past, particularly by Mr Wickham, for such orders.
Affidavit material has been filed by the attorneys for Ms Wickham deposing to compliance with Orders for substituted service, being the Orders which required that notice be forwarded to Mr Wickham. I am satisfied on the basis of and by reference to that material, that there has been full compliance with the Order, and that Mr Wickham is fully aware that the matter is listed before the Court today. Indeed, his attendance at the Registry this morning and his acknowledgement of that fact and his confirmation of his prior knowledge of that fact is sufficient for that purpose.
It is instructive, however, to consider the correspondence that has been forwarded to Mr Wickham particularly as Mr Wickham has responded. Mr Wickham had indicated on 22 September 2013, in relation to the Conciliation Conference scheduled to occur the following day:
I am not going to be able to attend this Mondays [sic] court for property, happy to change the date to another if that is okay with you or we can just sort it out now.
It then sets out a list of matters which Mr Wickham requires the address of so that he will provide his consent. To that extent Mr Wickham would appear to be under the delusion or misapprehension that his consent to orders is required before the matter can conclude.
Correspondence was forwarded to Mr and Mrs Wickham Senior, Mr Wickham's parents, on 16 October 2013, being the date when the matter was last before the Court, and advising in detail of the Orders made, as well as further correspondence on 24 October 2013 being Thursday last, enclosing a copy of the Orders as issued by the Court.
A response thereto was provided by Mr Wickham's parents addressed to the mother's attorneys - who are described by Mr Wickham as being “fancy” - and in the following terms:
Dear Madam, please do not use my email address to send any more Court documents in regards to your client Ms Wickham.
this [sic] was only temporary if the content was regarding our grandson X.
Mr Wickham does not live with us at our home address and never has, he only stayed over on the nights he had X.
All your emails sent to me I cannot forward on to Mr Wickham and they have now been deleted.
Why they cannot be forwarded is not made apparent. Indeed, one would assume the only impediment thereto is a lack of willingness or desire, Mr and Ms Wickham having demonstrated clearly their capacity and willingness to act in aid of their son, and his somewhat misguided approach towards these proceedings and X’s welfare in their culpability in refusing to return X when his grandmother attended in his mother’s stead.
In light of the above matters I am entirely satisfied, and have no doubt whatsoever, that Mr Wickham is aware:
a)That the proceedings are listed today;
b)Of the relief that is sought by Ms Wickham; and,
c)The consequences of his non‑attendance. Those consequences were made clear in the orders of 16 October 2013, being the conclusion of the matter on a final and undefended basis and with orders made as sought by Ms Wickham
The property aspect of the proceedings cannot conclude today as a superannuation splitting order is sought. There has been no procedural fairness afforded to the trustee of the fund. However, that is through no fault of the mother or her attorneys who have done all that is reasonably practicable in the circumstances. It is to be noted that Mr Wickham has not, at any time, complied with his obligations of disclosure under the Act or the Rules. That is particularly so with respect to financial disclosure. Mr Wickham has provided nothing.
Mr Wickham has filed a statement of financial circumstances. However, with respect to superannuation he has simply indicated "Name of superannuation plan 1 [blank] $28,000". Thus, the teaser is presented that clearly there is superannuation, however, no detail is provided. In an attempt at due diligence the attorneys for Ms Wickham have caused a subpoena to issue to the suspected superannuation fund.
The subpoenaed fund has contacted the attorneys to advise that the funds have been rolled over. However, a response to that subpoena might at least disclose the fund to which Mr Wickham's benefits have been transferred. However, there has not yet been a response to the subpoena and none is required until 4 November 2013 being next week.
That aspect of the proceedings will require adjournment, but for as brief a period as is possible and on a part-heard basis. That aspect of the proceedings will be adjourned for approximately six weeks to 4 December 2013 to enable those inquiries to be made, an order to be formulated, procedural fairness afforded to any trustee affected thereby and notice given to Mr Wickham. Notice will be forwarded to Mr Wickham by ordinary prepaid post to his address for service, ironically his parents' home, they having previously indicated they are incapable or unable to provide anything to Mr Wickham. That is, of course, a matter for Mr Wickham. It is the address he has nominated.
As regards the parenting aspect of the proceedings, however, they can and will be concluded today.
I am satisfied Mr Wickham has had abundant due process.
I am satisfied that there would be a denial of due process to Ms Wickham if the application was not concluded today. She has expended substantial funds, been led a merry dance by Mr Wickham both in this Court and, it would seem, the State Magistrates Court.
More importantly, however, both Ms Wickham and X are entitled to some certainty and clarity as to arrangements in their lives. The Independent Children’s Lawyer, representing X’s interests, supports that position.
Accordingly, I propose now to deal with and conclude the parenting aspect of the proceedings.
The material considered
In Ms Wickham's case I have read each of the documents identified by her and relied upon. There are, as indicated, a number of Applications before the Court.
Ms Wickham's Amended Initiating Application sets out the relief sought by her on a final basis. That includes orders that X live with her, that she have sole parental responsibility for him and the father spend supervised time with the child. That has been a consistent plea on Ms Wickham's part.
The Application that Ms Wickham had initially filed, now replaced by the Amended Initiating Application, had sought relief on the same basis. Thus since the commencement of proceedings on 4 June 2013 Mr Wickham has been fully aware that this is the position agitated by Ms Wickham.
Ms Wickham has also filed three Applications in a Case filed on each of 19 August, 5 September and 9 October 2013.
The Application in a Case filed 9 October 2013 deals with property relief on an interim and final basis, and thus is not relevant to this determination. Those of the 19 August and 5 September propose identical relief to that sought in the Initiating Application and as amended. To that end again I have no doubt or concern at all that Mr Wickham is fully aware both of the relief sought and moved upon by Ms Wickham today and of the likelihood that in the absence of his appearance – there being no explanation as to why he is not here particularly when he attended the Registry early this morning to deliver correspondence – that such Orders would be made in his absence and on a final basis.
It is possible that the proceedings could be dealt with through further interim orders today or all issues adjourned. However, I am not satisfied that course is appropriate. That is particularly so as:
a)Ms Wickham would be denied due process as I have already indicated; and
b)I am not satisfied that there is any real prospect that Mr Wickham's attitude towards the proceedings, or for that matter Ms Wickham, would change, and thus there is no real likelihood that he would appear or do anything that would advance the matter other than to seek further time and to place before the Court yet again a stream of consciousness concluding with a jeremiad against Ms Wickham.
I note that if Orders are made today on a final and undefended basis regulation 16.05 of the Federal Circuit Court Rules 2001 would allow it to be set aside. In any event, Mr Wickham would have a right of appeal should he wish to exercise it, and that is a matter entirely for him and with respect to which I have no power to interfere, nor would I seek to. To do so would be entirely inappropriate and absent jurisdiction.
In considering Ms Wickham's case I have read and considered the following Affidavit material in addition to the Applications already identified:
a)Ms Wickham's Affidavit affirmed 3 June 2013,
b)Ms Wickham's Affidavit affirmed 6 June 2013,
c)Ms Wickham's Affidavit affirmed 9 July 2013,
d)Ms Wickham's Affidavit affirmed 19 August 2013,
e)The Affidavit of the maternal grandmother Ms T affirmed 5 September 2013,
f)Ms Wickham's Affidavit affirmed 5 September 2013,
g)Ms Wickham's Affidavit affirmed 8 October 2013
h)I have also read and considered a Child Inclusive Dispute Conference memorandum.
I have extracted from the file and identified each of the documents filed by Mr Wickham, although I have not read or considered their contents as there is no agitation by Mr Wickham that it be so. Mr Wickham, it is to be noted, has filed a Response and an Amended Response, the latter having been filed 16 July 2013.
Notwithstanding Mr Wickham's constant assertion to the Court that an order for equal time is appropriate, and indeed is the only appropriate order that could possibly be made, and that anything else represents “a psychological injury to X”, the orders that are sought by him in his Amended Response are that X live with his father and spend time with his mother each Monday, Tuesday and weekend from Friday to Sunday.
Thus Mr Wickham's assertions and that which is sought by him by way of relief are at odds. That is a consistent theme throughout Mr Wickham's presentation to the Court.
Mr Wickham had attorneys at the commencement of the proceedings and whilst instructing those attorneys two Affidavits were filed on his behalf, being sworn on 11 June and 15 July 2013 respectively. Since that time Mr Wickham has been without legal representation and has filed Affidavits on each of 5 August, 13 August, 16 August, 22 August, 9 September and 11 September, 2013. Thus, Mr Wickham has sought to place before the Court that which has occurred in arrangements between he and Ms Wickham almost as a diary or journal. That has included, at points, Mr Wickham attaching to his material copies of Ms Wickham's materials, with notes and delineations thereupon, and his raising a significant number of allegations, none of which are specifically considered today, but which might best be summarised as being largely irrelevant and/or otherwise offensive to the relevant portions of the Act prohibiting material that is scandalous or calculated to embarrass.
Child Inclusive Dispute Conference
A Child Inclusive Dispute Conference was undertaken on 19 August, as described in the memorandum produced thereafter. The Memorandum suggests some real difficulties with the continuation of an order for equal shared parental responsibility or any arrangement that requires any degree of consultation, communication or cooperation between these parents, noting, as it does, the absence of any parental alliance whatsoever.
The Memorandum notes under the heading “Issues In Dispute” as follows:
whether X's time with his father needs to be supervised. Ms Wickham alleges that X is at risk of psychological and emotional harm in his father's care, which Mr Wickham disputes.
It is to be noted that Ms Wickham's evidence, particularly the earlier portions thereof, speaks loudly to those issues. Mr Wickham, having participated in those interviews, raised concerns with respect to Ms Wickham, particularly suggesting that she was using drugs.
Ms Wickham has, of her own volition, undertaken urine screening and produced a testing report. No order has ever been made requiring this as no evidence has ever been forthcoming from Mr Wickham to support the allegation. That allegation is described on the third page of the Memorandum:
…father alleges that post separation the mother may have commenced using illicit drugs which is based on his perception of her behaviour and presentation, on occasions. [emphasis added]
The father said he “believes” that the mother's current partner, having a partner is an allegation the mother denies, also “may” use drugs.
Under the heading “Coparenting Relationship” the following is opined:
The mother presently seeks sole parental responsibility because she alleges that post separation she has been the victim of family violence which has included that she has received numerous derogatory and abusive text and email communications from the father. The mother contends that the father has enrolled the child into a primary school without adequate consultation and negotiation with her, which the father disputes.
It is to be noted that the mother's allegations of family violence are not entirely post-separation. They also predate separation. They are significant allegations which whilst dismissed out of hand by Mr Wickham have:
a)Been the subject of extensive evidence by Ms Wickham;
b)Touch upon most of the aspects of the non‑exhaustive definition of family violence contained in section 4AB of the Act; and
c)Been before State Magistrates Courts both as to the making of interim and final intervention orders and now, it would seem, outstanding charges with respect to breach. I do not refer to those issues for the purpose of taking them into account for any purpose other than to acknowledge their existence.
It is suggested that both parents reported the absence of physical family violence during their relationship but the mother is reported as alleging the father was sometimes “controlling” but this was not at concerning levels from her perspective. Certainly post-separation it has been most concerning both to Ms Wickham and the Court.
Under the heading “Future Directions” the Family Consultant has indicated:
Whilst this child inclusive conference can only offer preliminary assessment, it appears evident that arrangements [need] be made as soon as possible for X to spend regular time with his father, however, it would be important that arrangements ensure that X is protected from emotional harm…
It was otherwise suggested by the Family consultant that the Court may be assisted by obtaining further evidence from Police records and the father's psychologist. Mr Wickham indicated that his psychologist has prepared a report for the Court. No such report can be located and it has not been filed.
In relation to Ms Wickham's allegations with respect to family violence, particularly allegations that would fall within the broad umbrella of coercive controlling family violence, it is indicated:
Mr Wickham has been charged with numerous breaches of the intervention order and at the child inclusive conference he showed limited insight into the possible detrimental impact on the mother of his alleged behaviours. Mr Wickham stressed that he has recovered from his past emotional upset associated with the parents separation and he would like to develop a business-like relationship with the mother, but only time will tell whether this is the case.
In the event that the above comments by Mr Wickham are accurately reported, and if so genuine at the time that they were made, Mr Wickham has clearly changed his attitude as he has been most childish and churlish in his approach towards Ms Wickham and these proceedings thereafter.
It was suggested that the father may benefit from continuing to attend psychological counselling, having attended only one appointment at the date of the conference. It was suggested further that this may help the father to manage his “post-separation situation”. The father's management of the “post-separation situation” would appear to be typified by avoidance and denial, rather than any active engagement or involvement or any active step taken by him to address matters or make them better.
Factual background
In turning to Ms Wickham's evidence it is clear and apparent that the parties' relationship was relatively brief.
The parties met and began to see each other during (omitted) 2004. The mother indicates that at the time she met the father that he was going through a divorce with his previous wife Ms K. The former Ms Wickham has communicated at some length with Ms Wickham and an email from her addressed to Ms Wickham is annexed to her material. It raises serious issues and concerns also, however, in light of its form I have not sought to place any significant weight upon it.
What it does corroborate, however, is the allegation made by Ms Wickham that Mr Wickham has two children from that marriage with whom he has no time or relationship, the second child having been born after the separation of those parents, and nothing having been pursued. It would appear that Mr Wickham thus has engaged in similar behaviours and a similar inability to manage a relationship with a child as a separated parent on both occasions.
Ms Wickham deposes that the parties ultimately then were married in (omitted) 2006 and that they had a troubled relationship, such that the parties were referred by the mother's general practitioner to see a marriage counsellor, Ms N and that whilst they attended upon Ms N arrangements clearly did not improve.
Separation and family violence
The parties ultimately separated in the earlier part of 2013 it being suggested by Ms Wickham, and I accept, to have occurred on 28 April 2013. The mother left the home on that time having seized an opportunity to do so without difficulty. The child X remained with the father when the mother left.
The father did not allow the mother any real opportunity to spend time with or pursue her relationship with X post-separation and thus, within a very short space of time, these proceedings were commenced. The mother deposes to having received between separation on 28 April, and the affirming of her Affidavit 3 June 2013, not less than 1,200 text messages and phone calls. Indeed, annexed to the mother's first Affidavit are 113 pages of text messages from the father.
I need not include within these Reasons the contents of each text message. However, many are lengthy. All are inappropriate. All demonstrate a most manipulative, coercive and controlling pattern of behaviour by Mr Wickham, sending on most occasions photographs of the parties' child X, whom Ms Wickham was at that point in time denied any relationship, with comments as to matters that Mr Wickham had raised with the child, particularly relating to:
a)The suggestion that Ms Wickham wanted the child's father to be arrested and sent to gaol;
b)That Ms Wickham no longer loved the father and was more interested in pursuing relationships with other persons; and
c)That Ms Wickham had perpetrated a variety of perceived wrongs against this young child's father.
All of the above matters as raised by Mr Wickham with X are suggested by Mr Wickham, in his own text messages, to have been upsetting to the child.
I should make clear that the 113 pages of text messages annexed to the mother's initial Affidavit cover a period of four days. Thus, I have no difficulty whatsoever in accepting the mother's allegation that she had received a substantial volume of inappropriate, coercive, and controlling communications from the father. One must temper those behaviours against the fact that Mr Wickham clearly was experiencing grief at the loss of the relationship. That may well make his actions explicable but it can never begin to make them appropriate. They were anything but.
As a consequence of those behaviours, as well as other behaviours of Mr Wickham, an intervention order was sought on the mother's behalf by Police. An interim intervention order was made. There is some doubt as to when it was served but clearly following its service Mr Wickham's inappropriate behaviours, rather than ceasing or even abating, increased.
On Sunday, 2 June 2013, the parties had arranged a birthday party for their child. The party was ultimately cancelled by Mr Wickham who, in many of his text messages, referred to his spending the day with the child. Indeed, he refers in one of them to the fact that the child will never forget that particular birthday on the basis of Ms Wickham having “abandoned the family”.
Mr Wickham would appear to entirely confuse, and, in fact, would appear, from his own material filed in the proceedings to date, let alone his text messages, be unable to differentiate between his needs and the child’s.
On one day alone and after the making of the interim violence order more than 300 text messages were sent by the father to the mother which messages were increasingly pleading, manipulative and coercive. A number of examples of the messages are cited by Ms Wickham in her material. They include comments such as:
a)"Our little boy is scared that mummy called the police to take his daddy away to gaol."
b)"I have just explained to X that you are never coming home. You just broke our son's heart."
c)"X is worried that his daddy is going to gaol."
d)"You have crossed a massive line here, Ms Wickham, getting the police involved. That's something I never thought you would do. A very low blow. I hope X forgives you for what you have done. Please call it off."
e)"X and I are on the way to the police station. Thank you for destroying everything."
In one message sent by Mr Wickham to another person he refers to a desire on his part to set fire to the house in which Ms Wickham is living.
As indicated I do not propose to recite all of the 113 pages of text messages over that four day period, however, they are increasingly disturbing and, indeed, Ms Wickham was increasingly disturbed.
Consistent with that pattern of coercive controlling behaviour Mr Wickham has also behaved financially in a fashion designed, I am satisfied, to cause maximum inconvenience, hurt, loss and distress to Ms Wickham.
He resumed occupation of the matrimonial home thus forcing Ms Wickham and X from it. He has during that period of time failed to make any reasonable attempt to make any payment. He has taken control of the assets and income and records of a business previously operated by the parties in partnership and would appear to have unilaterally closed that business and taken control of all affairs and property. He has otherwise failed in any obligation to provide financially for this child through payment of child support or otherwise. He has damaged property and removed property from Ms Wickham's possession.
They are matters which, whilst not directly related to the determination to be made with respect to this little boy's future arrangements, have relevance as they fall squarely within the definition of family violence. Since the 2006 amendments to the legislation, and particularly since the 2007 and 2012 amendments, the legislation passed by Parliament has acknowledged and reflected a more complete and nuanced understanding of violence than that previously shown.
The nature of family violence as set out in the examples of behaviour that may constitute family violence in section 4AB(2) of the Act are, but for physical assault, present in this case. Thus, the matters referred to above are of some significance as demonstrative of denying financial autonomy and unreasonably withholding financial support or, in this case, creating further financial ruination for both parties.
It is to be remembered that on the basis of the evidence of both parties that at the commencement of the relationship Mr Wickham's financial position was so poor that he was unable to obtain credit and it is for that reason that the home came to be purchased in Ms Wickham's sole name with a mortgage in her sole name.
That is corroborated by Mr Wickham who complains at length that Ms Wickham thus inappropriately obtained a first home buyers grant even though she was, on its face, entitled to that assistance.
Most concerningly Mr Wickham's behaviours, as set out in Ms Wickham's evidence and to some extent corroborated by Mr Wickham's own statements, include stalking, repeated derogatory taunts, intentionally damaging or destroying property and intentionally seeking out Ms Wickham and bombarding her with a most vile and unnecessary array of messages, complaints and criticisms.
Mr Wickham also, in one of his Affidavits points, Ms Wickham to that which he believes is appropriate and relevant to these proceedings, being a suggestion that there is a right for a parent to have equal time with a child as well as suggesting that Ms Wickham should appraise herself of the contents of an unspecified federal website which would make clear to her the error of her ways. It is suggested in an email sent by Mr Wickham, it would seem on or about 11 August, and directed to Ms Wickham via her mother's email address:
Parents must not stop or interfere with the other parent's rights or responsibilities under the parenting order. This is a quote from Law And Legal Service Australia. It's one of the bases for how judges make their decisions. What you are doing is not legal.
Notwithstanding that assertion, Mr Wickham has on two occasions, withheld the child from Ms Wickham on no apparent basis other than either whim or more probably, particularly in the first instance, a desire to use the child as some means of causing or coercing Ms Wickham to return.
When the parties first separated and until orders were made by this Court, Ms Wickham was spectacularly unsuccessful in negotiating any arrangement with Mr Wickham to spend time with or communicate with the child appropriately.
That also included a period when Ms Wickham went to the child's day care centre to collect the child and within moments of arriving, and whilst she was still there, Mr Wickham arrived. Mr Wickham is suggested to have repeatedly asked Ms Wickham what she was doing there. Ms Wickham acted insightfully and in a child focused fashion by not making a scene, leaving, and with the consequence that X then in tears – although when his mother first arrived he was reported as happy and excited – with Mr Wickham.
Similarly, one has the incident already referred to which occurred following the making of orders in August whereby Mr Wickham and his parents retained the child in their care as Ms Wickham did not attend in person to collect him whilst her mother attended in her place. On that occasion, as indicated, Luther-like, a note was attached to the door addressed to Ms Wickham's mother – clearly Mr Wickham and his parents were aware that it would be she attending – reading:
Please ask Ms Wickham to contact her solicitor regarding picking up X. As per orders we cannot hand X over to any other person other than "the mother". Sorry for your inconvenience.
No apology is offered for the distress and trauma that X no doubt experienced with the expectation that he was being collected and returning to his mother but instead kept from her. That is so notwithstanding Mr Wickham's continuous protestations that the child is being “psychologically harmed by not being given equal time with both parents”.
The emails and text messages annexed to Ms Wickham's material are lengthy. On past occasions it has not been possible for that material to be considered. Today the Court has had the opportunity of reading those emails in some detail. They paint a disturbing picture.
Mr Wickham's state of mind – that not being intended as a suggestion of any diagnosis of mental illness or mental disorder, but purely a reflection of that expressed by him in his messages as to how he is feeling and the matters that he is considering relevant and important – must be a concern as regards this child's treatment by the father, his exposure to inappropriate and age inappropriate conversations and discussions.
The emails vacillate, from messages to message and sometimes within the same message, between protestations of love, begging Ms Wickham to return to the relationship and then pointing out to her the harm she is doing both to the family unit and X in particular, and repeatedly telling her to "Just fuck the hell off and have your childish fun". It is to be remembered, particularly with respect to the 113 pages of text messages between 30 May and 3 June 2013, that X was in Mr Wickham's care for all of that period. Mr Wickham's supervision of the child and time spent by X with him, must have been significantly impacted by his devotion to sending 113 pages of messages.
On one occasion on 28 July whilst Ms Wickham was with a male person at a Kentucky Fried Chicken restaurant and X was with Mr Wickham spending time with him, Mr Wickham arrived at said establishment, made a number of threats to the mother and the male person with her and then left X with her notwithstanding that it was a period of time when X was to be, pursuant to Orders of the Court, in the father's care. The mother suggests that Mr Wickham was observed by her to circle the restaurant three times before driving into the car park, parking his car and coming inside with X.
It is suggested that he then became extremely upset and began to yell at the mother, "You can have him. I'm over this. I'm walking away." Mr Wickham then walked away leaving X with the mother. X was by then distressed.
Mr Wickham then returning and began yelling at the mother, "He's yours now. It's too hard. You have him. I'll tell your solicitor tomorrow. I'm just walking away. You win. I'm over this."
X then remained in the mother's care thereafter. When the matter was next before the Court Mr Wickham complained that the child had been kept from him by the mother.
On another occasion the father is suggested to have threatened both the mother and the same male person, with whom the father believes the mother has a relationship, and which he has described in the most lurid of detail in his material. On that occasion also he suggests and complains that it was necessary for an apprehended domestic violence order to be obtained against said gentleman and on behalf of X. An application was made by Mr Wickham to a Magistrates Court seeking such an order. The complaint made is annexed to Ms Wickham's material.
It is again difficult to comprehend that which is, in fact, alleged by Mr Wickham in that document but, in any event, incoherent as the allegations appear, clearly they were equally incomprehensible to the learned State Magistrate who dismissed the application.
Ms Wickham has obtained an intervention order against Mr Wickham. Notwithstanding same she continues to be harried and harassed by Mr Wickham, particularly by text message and email. He has, in a number of those messages, referred to the fact that things are simply too hard for him and that he, and at times suggested he with X, would move away to Queensland or possibly (country omitted).
The father has also applied for an intervention order against the mother. As best as the evidence establishes that application resulted in an ex parte interim order. The interim order was subsequently contested and dismissed and those proceedings were listed for hearing. Whether they have yet been completed or not is unclear. In any event, a copy of the complaint is attached which in reality does not set out anything which would or could reasonably be said to establish fear or apprehension of behaviour causing same.
Present arrangements
The arrangements that are presently in place require that time between X and his father occur in the presence of one or other of Mr Wickham’s parents. Those arrangements have broken down repeatedly and it would appear largely to have broken down - accepting Ms Wickham's evidence as I do, it being unchallenged and the proceedings undefended - as a consequence of Mr Wickham's behaviours, including what might fairly be described as his obsessional attitude towards equal time, and Ms Wickham as a person of evil.
Legislative pathway
In turning to the legislative pathway I am required to commence with the consideration of the objects and principles in section 60B of the Act. I incorporate same herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989
The objects and principles provide that the Court must ensure that certain aspects of the child's best interests are met, subject always to the caveat that the achievement of those objects and principles are consistent with the child's best interests.
The objects and principles provide that the Court should endeavour to make orders that will allow children to have the benefit of both of their parents having a meaningful involvement in their lives. That is, of course, subject to a finding that it is beneficial.
The Court must also, as set out in section 60B(1)(b), and as reaffirmed with greater force in section 60CC(2) and (2A), be conscious of ensuring that children are protected from physical or psychological harm through exposure to abuse, neglect or family violence.
Based upon acceptance of Ms Wickham's evidence this young boy has been exposed to family violence and has through that exposure been abused. The definitions of family violence and abuse in sections 4AB and 4 respectively provide:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
The definition of abuse above importantly includes at subsection (c) “…causing the child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence”.
The behaviours which are, in effect admitted, if not confessed, by Mr Wickham, as occurring during but not limited to the early stages of separation of these parents, was most assuredly abuse.
The evidence makes clear that Mr Wickham discussed with this child whilst the child was in his care:
a)The mother's suggested sexual activities and proclivities;
b)The various complained of behaviours of the mother; and
c)Ms Wickham’s “abandonment of the family” as expressed by Mr Wickham.
Clearly upon acceptance of Ms Wickham's evidence as to how Mr Wickham has behaved towards her it was entirely appropriate, and indeed protective, both of her own safety and emotional health as well as the child's, for that separation, (rather than abandonment), to be instigated by her.
For Mr Wickham to discuss such matters with the child let alone devote the significant time that must have been involved in composing and sending the abusive texts and emails is nothing short of abuse.
The difficulty with the objects and principles in a case such as this is the difficulty in being satisfied that the child can have the involvement of both parents and spend time on a regular basis with both parents without being exposed to unacceptable risk.
Mr Wickham is not here to answer the allegations. That he has, through the material to which I have briefly referred, largely if not completely disavowed any wrongdoing or any inappropriateness in the behaviours he has engaged in, causes me some real concern as to his ability to differentiate between his needs and the child's, or indeed, to be able to recognise and give effect to the needs of this child and his various rights as established by the principles and objects.
As indicated, section 60CA of the Act reminds the Court that in all that is done the child's best interests are the primary and paramount considerations.
I must then turn to section 61DA and determine whether the presumption of equal shared parental responsibility applies. The presumption does not apply, as made clear by subsection (2), if the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. Clearly, based on the evidence discussed above, I am satisfied of both. Thus, the presumption does not apply.
The application or non-application of the presumption does not, however, determine what order for parental responsibility should be made. That must still be determined by reference to the child's best interests and incorporating therein that which is reasonably practicable pursuant to section 65DAA(5) of the Act.
As the presumption does not apply I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. I propose to consider all arrangements at large as the Full Court has approved in Goode & Goode (2006) FLC 93-286 and Marvel & Marvel [2010] FamCAFC 101.
The child’s best interests
In turning then to section 60CC I commence with the primary considerations being:
a)The benefit to the child of having a meaningful relationship with both the child's parents; and
b)The need to protect the child from physical or psychological harm.
I am satisfied that Ms Wickham has a meaningful relationship with this little boy. She has cared for him and I accept has provided the predominance of care for him in the past. She has behaved insightfully and appropriately since separation.
Ms Wickham has allowed and permitted a relationship between X and his father and has intervened protectively when she has felt that the benefit of that relationship is outweighed by its detriment, particularly as a consequence of Mr Wickham's behaviours and apparent state of mind.
I cannot be satisfied that the child presently has a meaningful relationship with the father. It is continuously asserted by Mr Wickham. However, he asserts it at times and in contexts that involve him behaving in the most inappropriate fashion including whilst the child is in his care, including the Kentucky Fried Chicken incident referred to above and the catalogue of text and email messages sent by him to the mother whilst the child is with him. Indeed, on many of the occasions Mr Wickham has acted inappropriately, X is suggested to be cuddling against him, sitting on his lap and watching him type the message or listening to him make the call. It is simply abuse.
I am not satisfied that the relationship between X and Mr Wickham, based on the evidence that I presently have available, is meaningful. Lest I am wrong in that regard I am satisfied that I must consider, as subsection (2)(a) requires, the need to protect the child from such abusive behaviour and exposure to such behaviours and this would outweigh the benefit of any meaningful relationship.
The Orders that are proposed by the mother thus fulfil the primary considerations and each of them, particularly the latter prioritised over the former by subsection (2A). It will allow this child to have a meaningful relationship with his mother, which he already enjoys. It will allow that meaningful relationship to continue without the stresses and interferences created by Mr Wickham. It will also allow the child to have a relationship with the father, subject to agreement between the parents as to how that relationship will occur, and such terms and conditions as might apply, and in a fashion that will protect the child from physical and psychological harm.
In turning to the additional considerations.
Views
Mr Wickham has continuously asserted, in self-serving fashion, that the child desires nothing more than his parents to be back together or, if that cannot be achieved, equal time. It is put in the starkest terms by Mr Wickham that the child is psychologically harmed and damaged by the failure of the Court to impose or permit that arrangement.
I do not accept that that expression of X’s views advanced by Mr Wickham alone can or should have any weight attached to it by reference to authorities such as Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43.
To the extent that there is any objective evidence as to the child's views, noting that this is the language of the legislation rather than “wishes”, it supports a finding that the child has a view - that he wishes the conflict to stop.
X does not receive or perceive any benefit or advantage to him of the father's behaviours towards his mother and his awareness, inappropriately so, of the adult issues raised by Mr Wickham in these proceedings and raised with the child, and it would appear by Mr Wickham's parents, is something that should stop. That is the only views that I am satisfied I can accept or place weight upon.
Nature of the child's relationship with each parent and other persons
It is difficult to ascertain the present relationship between X and the father and through him the paternal grandparents. That is as a consequence of the absence of evidence by Mr Wickham or evidence that is capable of being understood when it has been filed by him.
Mr Wickham has engaged in such a pattern of behaviour since separation that I could not accept that he has the ability to differentiate his needs from the child's, the ability to focus upon, recognise and fulfil the child's needs or, that in the absence of those insights, that his relationship with the child is healthy, let alone positive.
I have no such concerns as regards Ms Wickham who has in the most trying of circumstances since separation, emotionally, financially and practically trying, has done a good job of looking after this little boy, shielding him from conflict and ensuring that his needs are met. She is an entirely appropriate and caring parent.
The extent to which each parent has taken or failed to take the opportunity to participate in decision‑making, spending time with or communicating with the child
I am normally loathe to criticise a parent by reference to this factor when they fail to attend court and the matter proceeds on an undefended basis in their absence. However, in this case there is no other course.
Mr Wickham is fully aware, I accept, of what will happen when he does not appear today, i.e., final parenting orders will be made in his absence that will deny him the benefit of any order.
I am simply not prepared to leave the interim Orders in force. I could not be satisfied, based on the overwhelming preponderance of evidence now before me, that those Orders would meet this child's needs. Indeed, I am satisfied that unsupervised time at this point, and in light of Mr Wickham's behaviours, and that which must underlie them, (being at the very least a substantial lack of insight, responsibility and appreciation and understanding of the child's needs), as well as the impact of those behaviours on the child and the possibility those behaviours may be symptomatic of the father's present state of emotional health, could not benefit this child.
Orders left in force which provide a positive benefit or a positive direction as to time and communication between the child and the father, other than on the basis of agreement between the parents, would bring into play a right and entitlement to exercise that which the order provided by reference to section 64B(6) of the Act. I am not satisfied that Ms Wickham should be put in that position nor X.
I am satisfied that Mr Wickham has failed to take the opportunity to participate in decision‑making. He has failed to attend the last three Court events, including today, and has done so in the full knowledge and appreciation of what would likely flow.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Ms Wickham is solely responsible for this child's care including financially.
Mr Wickham has done all within his power to disadvantage Ms Wickham financially, both in the short term and long term.
Likely effect of change, including separation from either parent or other child
I do not propose to make an order which positively precludes any relationship between Mr Wickham and X, however, time and communication will occur in accordance with agreement between his parents and on such terms and conditions as are agreed.
It is open to Mr Wickham to make an application should he wish in the future. However, I am not prepared to defer conclusion of this aspect of the proceedings when Mr Wickham has, in what might well be accepted as contumelious disregard, failed to attend to any obligation with respect to these proceedings and has, in the most childish and churlish of fashions, attended the Registry this morning to deliver his correspondence to the Court.
That action will not be treated, however, as evidence or a writ or prerogative upon which any decision is based. It simply demonstrates Mr Wickham's complete ignorance of any realistic appreciation of what is involved in this determination or his child's interests.
Thus, I am not satisfied that there will be a preclusion of a relationship or an enduring separation. To the extent that this consequence might be perceived to flow and arise from the Orders made today that is brought about through Mr Wickham's actions and determined by reference to the child's best interests.
I am not satisfied that there is no possible benefit for this child in having a relationship with the father. However, unless and until Mr Wickham places material before the Court that allows a positive assessment of that question and a finding in accordance therewith, I am not satisfied that any order should be made. Further, there is no application pressed before the Court for such an order and I am not satisfied in those circumstances, absent agitation for such relief, that an order should be made.
I am satisfied that there would be an entirely detrimental impact upon this child of separation from Ms Wickham. She is a competent, capable mother, who in atrocious circumstances since separation, albeit only a few months, has done a remarkable job in shielding this child from conflict and in meeting his needs.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5) of the Act.
Capacity of each of the parents and other persons, including grandparents, to provide for the child's needs, including emotional and intellectual needs
As would be apparent from the above discussion of evidence I have real concerns about Mr Wickham's capacity to recognise, let alone act upon and advance and protect, this child's needs including his emotional needs.
I am also concerned with respect to his parents. The pinning of the note to the door was irresponsible, immature and unnecessary. The Orders that had been made at a time when not only Mr Wickham but his parents were in Court could not possibly have created for them the expectation that they were required to, let alone should, adopt some fixed and rigid interpretation of the Orders made such as would preclude Ms Wickham's mother attending to collect this child. All those actions demonstrated were an inability by all involved from Mr Wickham's family to appreciate the impact on this child of those behaviours.
How the child would have felt knowing that he was to return to his mother, knowing in all probability that his grandmother was there to collect him and take him to his mother, and being precluded from that occurring for completely childish reasons, speaks nothing but ill of the ability of all three Wickham adults to recognise and meet this child's needs.
Maturity, sex, lifestyle and background of the child
This is a little boy of five years. He requires, as Mr Wickham has set out in his own letter to the Court delivered this morning, stability and a lack of conflict in his life.
It is suggested by Mr Wickham, in his correspondence, that these proceedings should be brought to a conclusion so as to ensure that this little boy as he enters his schooling years next year is able to get on with the important business of being a child and to do so in a safe, supportive and nurturing environment.
I am not satisfied that such an environment is or can be provided by Mr Wickham at present. I am entirely satisfied it is provided by Ms Wickham. Any interference with that arrangement, including through the continued exposure of Ms Wickham to the slings and arrows of Mr Wickham's discontent, will not be countenanced.
Aboriginality
Neither of the parents, nor this child, identify as Aboriginal or Torres Strait Islander.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
I am satisfied that is addressed above and finds positive favour as regards Ms Wickham and negativity and criticism as regards Mr Wickham and his extended family.
Any family violence involving the child or member of the child's family
Mr Wickham asserts, indeed concludes his plea in his correspondence delivered this morning, that "there is no family violence here". Mr Wickham is very wrong in that regard.
Mr Wickham’s actions and behaviours, no doubt predating separation, but most assuredly post-separation, amount to significant coercive and controlling family violence. It is dangerous family violence, particularly as rather than abate it has escalated. In those circumstances I am satisfied the extent of family violence obviates against any relief other than that sought by Ms Wickham.
Family violence orders
There is a family violence order in force. It is of a restrictive nature and for the benefit and protection of Ms Wickham. I do not propose to make any order which would be contrary to or inconsistent therewith.
Whether it is preferable to make the order that will least likely lead to the institution of further proceedings
I am satisfied that the best I can do to achieve this end is to conclude these proceedings today at least as regards parenting. That will allow Ms Wickham the opportunity to get on with the job that Mr Wickham identifies as important, being the protection of this child from conflict and to allow his enjoyment of his childhood.
It will allow her to get on with her life. It will also spare the Court’s waste of further resources. This matter has been the subject of far more substantial filing than was necessary or appropriate. It has been the subject of more Court events than necessary arising almost singularly from Mr Wickham's actions, behaviours and non‑compliance with Orders, including with the spirit of Orders as well as their expressed terms (see Stevenson & Hughes (1993) FLC 92-363) and has led to the appointment of an Independent Children's Lawyer.
That is not to criticise or to suggest any lack of appreciation for that provided by the Independent Children's Lawyer, but it is an expense to the community when Mr Wickham has spent not a cent in prosecuting his jeremiad against Ms Wickham, perpetrating indefensible positions and engaging in the fashion that he has, which has caused financial disadvantage to Ms Wickham as well as emotional distress to her and X. In those circumstances I am satisfied that the Orders sought can and should be made so as to conclude the proceedings.
Reasonable practicality
I must also note 65DAA(5) of the Act. That portion of the legislation codifies that which one might expect to see in operation between the parents if shared care arrangements are to have any benefit for the child or be realistic and practical.
The parents live close together, or at least as best as I can infer they do. I have no evidence as to Mr Wickham's present place of residence, (and he makes clear in his correspondence that he wishes to keep it secret), but that is not the test alone. That is purely a logistical and practical issue.
I must consider the parents' current and future capacity to implement an arrangement of time. I am not satisfied that there is any arrangement that could realistically be implemented at this time. I am also satisfied that it would be impracticable and inappropriate for an order for equal shared parental responsibility to be made. If such an order were made section 65DAC of the Act would impose upon Ms Wickham an obligation to consult with Mr Wickham with respect to all major issues decisions as defined in section 4 and to attempt through such consultation to arrive at joint decisions and to demonstrate genuine effort in doing so.
That would be an onerous burden and I am satisfied an impossible burden to impose upon Ms Wickham. Mr Wickham has demonstrated that he is completely unable to negotiate or to be addressed by Ms Wickham in any fashion. Indeed, he has indicated very clearly through his material filed to date, his presentation to the Court on past occasions, and his correspondence delivered to the Court this morning, that unless things are exactly as he determines they should be that they will not be cooperated with and will not occur.
Curiously, Mr Wickham also indicates in this regard that the only means of indirect communication through his parents is no longer an option which Ms Wickham should consider open. That has been communicated through the emails attached to the material filed by Ms Wickham's attorneys, and also in his letter suggesting quite clearly that his parents wish to have no engagement or involvement with Ms Wickham, nor with these proceedings.
Thus it is curious, if not ironic, that he has provided their address as his Address for Service. Ms Wickham's attorneys are entitled to forward material to that address. If it is not passed on by Mr Wickham's parents that is a matter for them and their conscience.
I am not satisfied that there is any capacity for a time arrangement to be effectively operated between these parents at this time and until such time as Mr Wickham addresses his own demons.
As regards the parents' current and future capacity to communicate with each other and resolve difficulties this is manifestly demonstrated, by everything that has occurred during the currency of these proceedings and since the separation of these parties, to be non-existent.
The impact of the arrangement on the child, I am satisfied, is addressed as above. Mr Wickham's present behaviours, which do not appear to be abating but continuing and potentially increasing, are such that they expose Ms Wickham and this child to abuse and an unacceptable risk thereof.
For those reasons I am satisfied that the relief sought by Ms Wickham with respect to parenting is appropriate and that it can and should be granted today on a final and undefended basis.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 29 July 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Injunction
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Remedies
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Standing
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