Incidents of concern

Incidents of concern –

Hawkins & Duffy [2016] FCCA 1157 (1 June 2016)

FOR FULL CASE: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1157.html

Agreed or Uncontroversial Facts

3. Despite the intensity of their disputation, a not inconsiderable number of matters arising in these proceedings are not controversial.
4. The father was born on (omitted) 1960 and is a (occupation omitted) by trade. He lives in his own in his home in (omitted) which from the photographs, appears relatively sparsely furnished but has an apparently reasonably sizeable backyard.
5. The mother was born on (omitted) 1975 and is a full-time stay-at-home mother living in a rented property also in (omitted) and approximately one mile from where the father resides.
6. The parents underwent a brief relationship in 2008. It lasted for just a few weeks (father’s version) or about two months (mother’s version). On any view it was a very brief encounter. When I suggested during the currency of the hearing that the parties were never really together at all in any meaningful sense, I noted that both parents nodded their heads in agreement.
7. The mother found out she was pregnant after the relationship ended and informed the father. Following X’s birth as earlier indicated on (omitted) 2008, the parties were not over time able to reach agreement as to how much time the father should spend with X.
8. The mother re-partnered with Mr C in (omitted) 2009, with whom she has been living since then in a de facto relationship. They have one child together namely, Y, born (omitted) 2011. The father has an adult child by a previous relationship who does not live with him but with whom he appears to have an unexceptional relationship.
9. The father filed an initiating application seeking time supervised by his adult daughter on 18 September 2009 and the mother’s response filed 13 October 2009, proposed very little time with the father but to be increased to overnight (in accordance with the child’s age).
10. The first affidavit filed by the mother raised issues about the father’s cleanliness when he was spending time with X and also complained of child support issues a dispute which is not yet finally resolved.
11. Ultimately, time was arranged supervised by Ms M whose report filed on affidavit on 13 April 2010, noted a satisfactory development of the relationship between the father and X. She noted that the father’s house was not wholly clean (there was a superabundance of flies, a matter subsequently addressed by the father installing flyscreens) and noted, inter alia, that the mother was always positive about the father’s relationship with the child. The father unsurprisingly perhaps, was not that well attuned to X’s food and drink needs.
12. The 2009 proceeding came to an end when consent orders were made before the court on 23 April 2010. Both parties were represented at the time. Inter alia, this provided for gradual increases of time including the commencement of overnight time from Thursday to Friday to commence on 21 April 2011. Subject to several matters to which I will come shortly, it seems to be common cause that this time progressed generally fairly well until X went to prep at the start of 2014.
13. On 25 February 2012, when X was three years old, the so-called “drill incident” occurred. The father permitted X to have an electric drill – I presume cordless – in his hand and it went off removing a chunk of X’s hair. The mother photographed the after-effects of this incident. Indeed, it is clear that she has been taking photographs of X whenever he suffers injury at the very least since that time.
14. The second incident took place on 11 January 2013 and is referred to as the “hair-pulling incident”. It should be noted that both of these incidents were the subject of express findings by Judge Baker in her decision given on 28 May 2015 in contravention proceedings between the parties. For reasons I gave in my preliminary ruling I have adopted those findings as conclusive.
15. Notwithstanding these incidents, X continued to spend time with his father pursuant to the 2010 orders until the start of the 2014 school year. At that point, the mother ceased the overnight time on Thursdays informing the father that she did not trust him to have the capacity to get X to school on time.
16. The father did not immediately do anything about this development. He initiated mediation which took place until approximately the middle of the year. The mother’s position is that the end result of the mediation was that the father accepted the new regime she had effectively unilaterally imposed but the institution of the latest tranche of these proceedings shows that that was certainly not the father’s view.
17. In June 2014, the so-called “carpet burn incident” took place. Although the parties have differing views as to what occurred, there is no dispute that X was pulled while undressed by the father for a distance on the carpet in his lounge and suffered a carpet burn as a result. The photographs annexed to the mother’s affidavit material do not suggest a particularly severe injury. Indeed, it is hard to see any injury at all in them. But it is common cause or at least not disputed that the injury formed a scab and as I pointed out during the occurrence of the hearing it must have hurt.
18. On 25 November 2014, the father’s lawyers wrote to the mother demanding an immediate resumption of the previous orders and advising that the father would be attending X’s school each Thursday to collect him and would return him the following morning from 4 December 2014. On Tuesday, 2 December 2014, the father went to X’s school and introduced himself to the deputy principal. It is clear that he had had no meaningful involvement with X’s school up until that time.
19. On 4 December 2014, the father went to the school to collect X but the mother had already collected him at 2 pm. The same thing happened again the week afterwards.
20. Thereafter, the next relevant development was that on 3 January 2015 the mother alleged that X told her his father had punched him in the stomach five times. This assertion was also it should be noted the subject of an express finding by Judge Baker which I have adopted. I accept that the father did not punch X as the mother alleged that he did.
21. Thereafter and throughout 2015, the parties were in and out of court arising from various suspensions of X’s time with his father by the mother. The court was not however the parties’ only port of call. X has been taken on a number of occasions to various doctors, hospitals and police stations and has been the subject of a number of Video and Audio Recording of Evidence interviews. Most particularly these arose out of recitations by X that his father was in the habit of bear-hugging him and causing him pain. He also sustained a cut and swelling to his lower lip on 2 October 2015 (the falling out of bed incident) and a further incident allegedly reported by X to the mother on 31 October 2015 when X again had a cut inside his mouth on his gum (the dumbbell incident).
22. Additionally, the mother has alleged that the father assaulted X while playing Frisbee with him in 2015. Further, in November 2015 X allegedly told the mother that his father had assaulted him on a number of occasions, made a threat that he would kill X and the mother and that Ms T (a paternal aunt who was supervising at the time) had also assaulted X.
23. The father has at all times denied actually assaulting X or making any threats against him or the mother. The father faces criminal charges arising out of the dumbbell incident as I understand it due to be heard later in 2016.
24. As I have indicated, the trial of the proceedings revolved essentially around the two competing versions as to what has actually happened while X has been in his father’s care. Against the background of vivid disagreement between the two primary players and their supporting witnesses it is appropriate to commence with the reports of Mr V filed with his affidavit on 10 March 2016.

The Reports of Mr V

25. Mr V is, of course, independent of the parties and is a well-known and extremely experienced clinical psychologist with, as his curriculum vitae shows very extensive experience in this field. His first report dated 20 October 2015 introduces the parties. I have of course regard to the entirety of the report but I note the following matters as being relevant by way of background. At paragraph 7, Mr V wrote:
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    “…Mr Hawkins denies categorically the allegations of neglect and abuse. He acknowledges that some of what is reported is accurate in content, but is out of context. He told me that he felt very guilty about X’s hair having been caught in the cordless drill. He denied categorically that he physically hits, hurts or punches X, albeit that I was left with the clear impression that from his perspective, he engages in rough and tumble play with X.

26. At paragraph 9, Mr V categorised the case in my view entirely accurately when he said:
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    “Mr Hawkins is concerned that Ms Duffy is trying to alienate X; Ms Duffy believes that X is at risk in the care of his father and that extending the time to include overnights increases the risks exponentially.”

27. At paragraph 14, Mr V observed:
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    “The suspicion of Mr Hawkins is that Ms Duffy wants X all to herself. He explained that from the very outset, she has been reluctant to share her time with X, that she has dictated to him if, and when he could see his son, and that consequently, his time with X has been severely curtailed.”

28. I note that at paragraphs 17 to 18, Mr V recorded a playful and enjoyable interaction between X and his father.
29. At paragraph 30, Mr V reported:
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    “What became immediately apparent was that X shares with his mother a very different version of events than that described by Mr Hawkins. This discrepancy is at the very core of the dispute. Needless to say, Ms Duffy firmly believes that what X tells her is true…”

30. I further note that at paragraph 32, Mr V said:
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    “Now, her level of anxiety has also become high, and after years of having to deal with X’s anxiety and physical presentation, that things have only continued or worsened. Ms Duffy told me that she is now particularly concerned by the unusual nature of the interaction between X and his father at points of transition, that they don’t even look at each other and are awkward in each other’s presence, further fueling her concerns. It seemed very clear that Ms Duffy’s own level of anxiety regarding X has become high, amidst her concerns regarding Mr Hawkins and his behaviour. She showed me a photo of X’s legs that showed blotches, that according to X was a result of his father having made him complete pushups(sic) as punishment for a minor transgression.”

31. I interpolate and repeat what I said about this last assertion during the hearing. I do not see how doing push-ups would be likely to cause blotches to a child’s legs and it is symptomatic of the mother’s heightened anxiety that she should make this conclusion.
32. At paragraph 33, Mr V said:
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    “As was the case with Mr Hawkins, Ms Duffy described a brief but eventful relationship. In the two months that they dated, she claims that he hit her a couple of times to the arm and the leg, and once physically threatened her.”

33. At paragraph 40 and following, Mr V made observations about X. X was very aware of the tension between his parents and that they did not like each other (paragraph 40). X spoke about what he understood to be the battle between his parents and that their conflict was very much about him (paragraph 42). It is clear from what X has said recorded at paragraph 42, X perceives himself to be involved in a battle which if he loses may mean that he does not see his mother again.
34. At paragraph 44, Mr V noted that the picture presented by X was a confused and conflicted one. It was very difficult to know whether he really meant what he was saying.
35. At paragraphs 48 to 49, Mr V recorded his interview with Ms R, X’s class teacher. Mr V noted:
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    “She confirmed that previously X was anxious about going to his father to overnight sleeps, referring to his level of anxiety and anticipation of seeing his suitcase, but that he has told her that he no longer felt like this. The feedback from X to her, is that he is more used to it, that he is more comfortable when things are going well.

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Ms R also noted that Ms Duffy is very concerned about X, that she shares her concerns in detail with Ms R, that Ms R was aware of the AVO and many of the details of what has occurred; she also noted that at these times, X tends to be very quiet, but brightens up when on his own. According to Ms R, X seems happy to go off with his father. She described Ms Duffy in unequivocally positive terms.”

36. The report goes on to note the understandable difficulty that Mr V had in working out whether what X was saying was correct or not. I note that at paragraph 54, Mr V stressed the need for the evidence given by the parties to be tested. I note further that at paragraph 57, Mr V said:
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    “Based on the information available, it is difficult to find evidence to support that X has been unequivocally physically maltreated by his father. X’s reference to his father playing and joking and trying to be fun suggests that X possibly does get hurt in this playful banter. The carpet burn to his shoulder is significant, and even if it was playful, suggests that it got out of control and caused X harm; a review of Mr Hawkins’ behaviour and a more moderate approach would seem sensible at least.”

37. Mr V went on to recommend time on alternate weekends, a night in the alternate week and a half of the holidays (paragraph 59).
38. Mr V’s follow-up report is dated 14 December 2015, following inter alia assertions that X had been assaulted by the supervising aunt. Mr V noted again that X’s interaction with his father was unremarkable and inconsistent with the fear otherwise asserted. Mr V concluded on the second last page of his report.
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    “The testing of evidence will be of enormous importance in this matter. My direct observations of X are that he does not appear to interact with his father in a manner that suggests that he is frightened. Given his account that the supervisor has colluded with the maltreatment and has actually also physically maltreated him, it is significant that my observation of his interaction with Ms T was completely unremarkable.”

39. Mr V continued:
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    “From my perspective, the “disclosures” lack consistency, clarity and certainty. The co-construction of these allegations is one of the possibilities that need to be considered, amongst a shared misbelief with regards to Mr Hawkins’ capacity to do harm to X.”

40. On the last page of his report, Mr V continued:
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    “…the other hypothesis is of equal significance, that is, that X is recounting events that did not occur, reporting these to his mother, who acts upon them with vigour, and the more X reports these events, the more they become consolidated as fact, even though they may not have occurred. The implications for X and his mental health should not be overlooked.

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The longstanding nature of these allegations is serious and the implications for X are substantial. I also draw attention to the act [sic] that there is little about X’s behaviour that suggests that he is a child who is anxious or traumatised and certainly my observations of him in the company of his family have been unremarkable.”

The Affidavits of the Parties

41. By the time a proceeding has to be housed in a box file, it is immediately apparent that the parties have filed voluminous affidavits, both by themselves and by various family and friends. I have read the affidavits carefully and have due regard to their contents. It is not, however, appropriate or necessary to paraphrase them even in outline. There are, however, a number of matters that should be mentioned.
42. First, it is important to note that the mother did not in the 2009 to 2010 proceedings raise the issues of alleged assault by the father on X at the age of approximately 18 months that she now asserts.
43. Moreover, the mother did not raise in the 2009 to 2010 proceedings any assertions that she had been assaulted by the father during the relationship. She did not assert this either in her affidavit material or in her interview with Mr U who produced the family report.
44. I have not dealt with Mr U’s report as it has well and truly been overtaken by events but I note that at paragraph 35 Mr U reported:
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    “Whilst Mr Hawkins did not articulate it in so many words, he drew attention to Ms Duffy’s social milieu being quite different from his own. He suggested that their different backgrounds coloured Ms Duffy’s perception of his living conditions. “Her father was a well known (occupation omitted). Her parents live in (omitted). I live in (omitted). I’m not big on birthdays or Christmas. She is. We’re like the characters in The Odd Couple.””

45. It should be noted that it was not until her affidavit filed on 7 May 2015 when the mother asserted that the relationship with the father ended when the father threatened her (paragraph 6). There was at this time no mention of physical assault. It was only in her trial affidavit filed 17 February 2016 at paragraph 35 that the mother first mentioned the father slapping X in October 2009 with Ms H (the paternal grandmother) being present.
46. I have concentrated on this aspect of the affidavit evidence because it is of some significance in that given the parties’ positions it is as Mr V asserted, very important that express findings of fact should be made if that is possible.
47. The affidavits of the parties and their supporting witnesses are replete with the accounts of X’s injuries while he is in his father’s care and the father’s denials or qualifications of those matters. The father is not shy of insulting the mother. It is conceded that she was a heroin addict at the time of X’s conception but managed to transition to methadone once she knew she was pregnant. This change is one for which the mother deserves a considerable degree of credit in my view albeit that the father would not appear to endorse it.
48. The father has also taken it upon himself to accuse the mother of being a prostitute, something which she both denies and is significantly (unsurprisingly) affronted by. He has told his sisters and at least one of his neighbours that the mother is a prostitute and continued with this assertion in the witness box.
49. The mother is likewise in no way shy of criticism of the father. In addition to the appalling assaults she alleges, she has maintained from time to time that he is incompetent to get X to school, complains of the food he has provided X when he has sent him to school, says he drinks too much and is otherwise generally feckless.

The Evidence Given at Court – The Father

50. In evidence-in-chief, the father dealt with the swimming carnival incident that took place in December 2015. He said he had observed no marks on X’s arm or neck and had no idea whatever about the injuries to X’s arm. He said a seatbelt might have given rise to the mark on X’s neck. He said he had been unaware of this incident until the previous Friday.
51. The father was cross-examined over a very extensive period of time. He denied ever physically disciplining X. He explained the January 2013 incident (the hair pulling incident.) He maintained that X had a grin on his face all the way through. He had pulled X’s hair because X was pulling on his beard (Mr Hawkins has a very luxuriant beard – if X was pulling on it, it might well have hurt Mr Hawkins).
52. The father was cross-examined about Department of Health and Human Services (DHHS) records dated 4 August 2015. (Extensive DHHS records were tendered and I have had regard to them. I have, however, generally concentrated on the evidence given at Court). He said he had bear-hugged X as a measure of restraint. He said he had never used excessive force with X but conceded that it was possible that X thought that this might be the case. He conceded that X might tell his mother the truth as he sees it. He further conceded that he made a mistake about the drill incident and agreed that the mother would have been concerned about this. He said he should never have let X touch the drill.
53. The father complained of the mother’s unilateral decision to enter X in the (omitted) School but conceded that they went together for X’s first day at school. It is fair to say that the father’s evidence did not weaken or change under the extensive cross-examination that took place.
54. I do record that the father has no insight about the mother’s concerns. He said in response to questions from counsel for the mother that he did not need to change. He said he had taken the line of least resistance that was he was conducting himself in the right manner. He said he did not think he needed a counsellor to be a better father but that the mother needs to improve in how she deals with him. He said that X was coached to say a lot of things.
55. The father complained that there was a lot of hostility from the mother towards him and that he walked away most of the time and was never aggressive to her.
56. The father was extensively cross-examined about the degree of financial support he had given to the mother. He said he would pay bills for X’s school and related matters if he was presented with bills for them and made much of the fact that he had always offered to make such payments. I would interpolate and say that I found this aspect of his evidence unconvincing. He has been unwilling to pay because of the ongoing disputation with the mother.
57. The father also gave evidence as to why he thought the mother was working as a prostitute during his relationship with him (something that gave rise at a very late and unfortunate stage to an application for parentage testing which was not fortunately ultimately pursued). It is sufficient to say that this evidence was extremely flimsy and in my view unbelievable.
58. The father denied the carpet burn incident. He maintained that the child was dragged six inches or less on the floor and was not injured. The father confirmed that he has moderated his approach and there are no wrestling games with X anymore. The father was also cross-examined about the so-called Frisbee incident. He denied throwing the Frisbee at the child but conceded that he and X had a play wrestle on the grass. The father did not accept the mother’s version as true. He accused her of making things up.
59. The father denied all accusations of physical assault upon X. I note, however, that he did volunteer that he pinches X quite a lot, something it was not necessary for him to have conceded and which does him credit.
60. The father denied drinking to excess, in terms that I find credible.
61. The father’s evidence was at all times tinged with criticism of the mother and it is plain that he sees her in the worst possible light.
62. The father conceded that X is progressing satisfactorily at school. He also conceded that he should be more proactive in involving himself with paying for X’s school and related matters.

The Evidence of the Mother

68. Like the father, the mother was very extensively cross-examined. The mother gave evidence of the various injuries X had reported to her and it is quite clear that she wholly believes him. The mother has been in the practice of taking photographs whenever X suffers an injury, not just with his father for a very extensive period of time, at least back to 2013 (the drill incident).
69. Despite the intensity of cross-examination, it is in my view sufficient to note that the mother’s answers revealed beyond any possible doubt that X does indeed make the disclosures to her that she asserts and that she believes him. The mother did assert that she saw the father slap X in 2009/2010 but conceded that this was not in her earlier affidavit material.
70. The mother said that she believed X when he told her things. She said X was not known to lie. She was cross-examined about Sexual Offences and Child Abuse Investigation Team (SOCIT) records suggesting that X was being coached and responded that she did not remember those comments at all. That is an answer I am not able to accept.
71. Put shortly, the mother stuck to her versions of the events. She denied coaching X at all to say anything to anybody.
72. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother repeated that she had seen the father slap X when he was 12 months old in front of the paternal grandmother. She conceded that it was possible that X exaggerated or makes things up but said it was also possible that the father was lying. She conceded that the climate between her and the father has changed and agreed that family therapy would be a great idea. She conceded that no injuries have happened to X this year while he has been in his father’s care.
73. It was noteworthy that towards the end of her cross-examination, the mother complained that she felt as though she was being grilled in cross-examination. She asked why no one was concerned about the bruises on X and the choke marks upon him. She suggested that the fact that the question was put to her suggested that she was to blame. This defensive quality was apparent in the course of her evidence generally.

Findings about the Credit of the Witnesses

82. The father was in the main an excellent witness. While it is clear that on occasions he has given accounts to various authorities including DHHS that are not consistent with what he says now these do not in my opinion, detract from his overall credibility. They reflect, I suspect panic responses and/or ill-considered responses at the time. While there was some aspects of his evidence by which I was not convinced (for example, whether he had makeup time after the mother took X to (omitted) for a holiday), I have to say, that this was a witness of truth.
83. Both parties have plainly been waiting for their day in court avidly. It is time for somebody to make findings about the matters with which they dispute. The father was palpably honest in giving his answers. This does not mean that I necessarily accept everything he said but in respect of the critical central issue, namely whether he wilfully assaults X, it is clear that he is truthful.
84. The mother was not as good a witness as the father. She prevaricated answered questions with questions of her own and a number of her answers were non-responsive to questions put. Nonetheless, it is absolutely clear once again that she is telling the truth when she says that X has made the various disclosures to her that she has asserted and it is quite clear that she believes them. Contrary to the father’s suspicions she is not making any of it up.
85. I have already dealt with the evidence of the father’s family and I repeat that it is quite clear that Ms T, Ms D and Ms H were truthful witnesses. Although little turns upon their evidence so was Ms K and Mr R.
86. Mr C was clearly a truthful witness albeit necessarily wholly aligned with his partner’s case. Mr E’s evidence was likewise clearly given honestly but nothing turns on it in my opinion.

Conclusion

134. This has been a terribly sad case in which, as I have already indicated, everything has just gone terribly wrong. The initial relationship between the parents was brief and must have ended in acrimony, given its brevity. The mother has always been concerned about aspects of the father’s lifestyle and attendant possible risks for X. She has clearly been hyper-vigilant. Contrary to her supposition, the court takes the issues of X’s injuries very seriously. Unfortunately for her, however, I have come to a very clear view that she is substantially wrong although things have happened which would very naturally be of concern to her.
135. The regime I have set in place does the best I am able to apply the statutory pathway bearing conscientiously in mind that it is X’s best interests with which we are ultimately concerned.
136. Nonetheless, I think it is important that the parties be reminded at the conclusion of this relatively lengthy judgment that I have found both parents to be wrong in their essential demonisation of the other. The father is not an ogre who beats X up. He loves him. The mother is not an evil person seeking to exclude the father from time with X for selfish reasons. She has at all times genuinely believed what X says to her even though what X says to her has not always been truthful. These two persons both struck me as being essentially thoroughly decent and loving parents. It is to be hoped that with the assistance of s.65L counselling together with family therapy, that they can start to address the assuaging of the bitterness that has so consumed them for so long. That is the path to the future and the one that will give X the chance to enjoy the rest of his childhood, being loved by two parents both of whom are devoted to him.