Duffield and Dobbs
[2017] FCCA 1527
•21 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUFFIELD & DOBBS | [2017] FCCA 1527 |
| Catchwords: FAMILY LAW – Parenting orders – whether the father poses an unacceptable risk to two young boys – whether that risk can be ameliorated in the long term by supervised time. |
| Legislation: Family Law Act 1975 (Cth), ss.64B, 60CA, 60CC, 60CC(2), 60CC(2A) 60CC(3), 61DA(1), 61DA(2), 61DA(4) |
| Cases cited: M v M (1988) 166 CLR 69 In the marriage of N and S (1995) 19 Fam LR 837 |
| Applicant: | MR DUFFIELD |
| Respondent: | MS DOBBS |
| File Number: | DGC 643 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 30 August 2016; 7 December 2016; 8 December 2016; and 9 December 2016 |
| Date of Last Submission: | 9 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Goddard of Counsel |
| Solicitors for the Applicant: | Wards Barristers & Solicitors |
| Counsel for the Respondent: | Mr Gates of Counsel |
| Solicitors for the Respondent: | Annette Wolfe Barrister & Solicitor |
| Counsel for the Independent Children's Lawyer: | Ms Stavrakakis of Counsel |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
Parenting Orders
All previous parenting Orders in relation to the children X born (omitted) 2010 and Y born (omitted) 2014 (“the children”) are hereby discharged.
The mother shall have sole parental responsibility for the children.
The mother shall inform the father in writing (which includes by text message or email) at least 21 days before making decisions about the following matters:
(a)any change in the children’s school/s;
(b)any non-emergency surgery or serious medical treatment the children or either of them is to undergo;
(c)any proposed relocation of more than 20 kilometres from her present residence;
and the father shall provide his views, if any, in relation to all such information within ten days of receipt.
(3A)To avoid any confusion, all final decisions in relation to the matters set out in paragraph 3 hereof shall rest with the mother.
The children shall live with the mother.
The father shall, as soon as is practicable, consult and engage with a clinical psychologist or psychiatrist for the purposes of engaging in psychotherapy to address his anger issues with specific reference to the Court’s findings in this matter, and for that purpose the father shall provide to such clinical psychologist or psychiatrist a copy of the Court’s Reasons for Judgment in this case, and at the end of that psychotherapy, the timing of which shall be determined by the therapist, the father shall obtain a report from the therapist (“the report”) and provide a copy of that report to the mother.
The father shall spend time and communicate with the children as follows:
(a)until the father has fully complied with paragraph 5 hereof:
(i)for 2 hours on each alternate Saturday by agreement between the parties and failing agreement from 11:00 a.m. to 1:00 p.m. for 4 visits, such time to take place in (omitted);
(ii)thereafter for 4 hours on each alternate Saturday by agreement and failing agreement from 11:00 a.m. to 3:00 p.m. for 4 visits;
(iii)thereafter for 6 hours on each alternate Saturday by agreement between the parties and failing agreement from 10:00 a.m. to 4:00 p.m.;
(b)no later than 60 days after the father has fully complied with paragraph 5 hereof, and subject to there being no proceedings on foot between the parties under Part VII of the Family Law Act 1975 (Cth), the father shall spend time and communicate with the children:
(i)on each alternate weekend from 10:00 a.m. on Saturday to 10:00 a.m. on Sunday for 4 visits;
(ii)thereafter on each alternate weekend from 10:00 a.m. on Saturday to 4:00 p.m. on Sunday for 4 visits;
(iii)thereafter during school terms on each alternate weekend from 6:00 p.m. on Friday to 4:00 p.m. on Sunday;
(c)for 4 nights by agreement in the first school holidays after paragraph 6(b)(iii) comes into force and failing agreement from 4:00 p.m. on the first Saturday to 4:00 p.m. on the first Wednesday;
(d)thereafter for a block of 8 nights in all school term holidays by agreement and failing agreement from 6:00 p.m. on the last day of the school term to 6:00 p.m. on the second Saturday in even-numbered years and from 6:00 p.m. on the second Saturday to 4:00 p.m. on the third Sunday in odd numbered years;
(e)in the first long summer school holidays after paragraph 6(d) comes into force for two periods of 10 days by agreement between the parties and failing agreement from 10:00 a.m. on 26 December to 6:00 p.m. on 4 January and from 10:00 a.m. on 15 January to 6:00 p.m. on 25 January;
(f)for half of all long summer holidays thereafter by agreement between the parties and failing agreement the first half in the second long summer school holidays after paragraph 6(d) comes into force and in each alternate year thereafter, and the second half in the third summer school holidays after paragraph 6(d) comes into force and in each alternate year thereafter;
(g)by telephone, Skype, FaceTime or other electronic means:
(i)between 5:00 p.m. and 6:00 p.m. on each Saturday that the children are not in his care;
(ii)between 8:00 a.m. and 8:30 a.m. on each of the children’s birthdays each year should they not be in his care;
(iii)between 8:00 a.m. and 8:30 a.m. on Christmas Day in years when they are not in his care;
(iv)between 8:00 a.m. and 8:30 a.m. on the father’s birthday each year should they not in his care;
with the father to make the call and for that purpose the mother shall ensure that the children have access to a charged and working telephone or computer and that they are available to take the father’s call; and
(h)at such other times as the parties might agree in writing from time to time.
For the sake of clarity, if the father does not fully comply with the provisions of paragraph 5 hereof, then his time with the children shall continue indefinitely pursuant to the provisions of paragraph 6(a)(iii) and 6(g) only, until such time as he does so comply.
Changeover shall occur:
(a)at the Anglicare Children’s Contact Centre in (omitted) for all periods of time spent pursuant to paragraph 6(a) hereof unless otherwise agreed between the parties in writing at least 24 hours prior to time commencing; and
(b)thereafter, once paragraph 6(b) comes into operation, at an agreed venue approximately mid-way between the parties’ homes and failing agreement at the (omitted) Service Station on the (omitted) at (omitted) at the commencement of time and at the (omitted) Service Station in (omitted) at the conclusion.
The children’s time with the father pursuant to paragraphs 6(a) and (b) hereof shall suspend during school holidays and recommence at the commencement of the next school term as though the holidays had not intervened.
The father’s time with the children pursuant to paragraph 6 hereof shall suspend if necessary so that the mother shall spend time and communicate with the children by telephone, Skype, FaceTime or other electronic means:
(a)between 5:00 p.m. and 6:00 p.m. on each Saturday that the children are not in her care;
(b)between 8:00 a.m. and 8:30 a.m. on each of the children’s birthdays each year should they not be in her care;
(c)between 8:00 a.m. and 8:30 a.m. on Christmas Day in years when they are not in her care;
(d)between 8:00 a.m. and 8:30 a.m. on the mother’s birthday each year should they not in her care;
(e)at such other times as the parties might agree in writing from time to time;
with the mother to make the call and for that purpose the father shall ensure that the children have access to a charged and working telephone or computer and that they are available to take the mother’s call.
Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)passing messages to the other parent through the children or either of them;
(d)allowing the children or either of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter; and
(e)using any form of corporal punishment in disciplining the children or either of them.
Each party shall be at liberty to enrol the children or either of them, at that parent’s expense, in any extracurricular activity which occurs during their time with the children, but neither shall enrol the children or either of them in any extracurricular activity occurring during the other parent’s time with the children without the written consent of the other parent first obtained.
Each party shall notify the other as soon as practicable in the event of the children or either of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or either of them to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the children or either of them, including the dosage prescribed, and shall ensure that such medication travels with the children.
The mother shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the husband at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or either of them.
The mother shall be at liberty to provide a copy of these orders (but not the Court’s Reasons for Judgment) to the children’s school.
The Order of the 18 June 2015 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Duffield & Dobbs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 643 of 2015
| MR DUFFIELD |
Applicant
And
| MS DOBBS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning the children Y born (omitted) 2014 (“Y”) and X born (omitted) 2010 (“X”) (collectively, “the children”).
The parties in these proceedings are the Applicant Father, Mr Duffield (“Mr Duffield” or “the father”) and the Respondent Mother, Ms Dobbs (“Ms Dobbs” or “the mother”) (collectively, “the parties”).
The father seeks Orders for equal shared parental responsibility, and for the children to live with the mother and spend substantial and significant time with him on an unsupervised basis.
The mother is seeking Orders for sole parental responsibility (if the father is found to pose an unacceptable risk to the children), ongoing supervised time at a Contact Centre and contact via Skype and telephone. If the father is found not to pose an unacceptable risk to the children, the Mother seeks Orders that the Father spends daytime only with the children and that time be once per fortnight.
The Independent Children’s Lawyer seeks that, in the event that the Court finds that the Father poses an unacceptable risk to the children, there be an Order for equal shared parental responsibility for the children, the children live with the mother and the children spend time with the father by both Skype and on a supervised basis either at the Children’s Contact Centre or by a party agreed to by the parents.
In the event that the Father is not found to pose an unacceptable risk, the Independent Children’s Lawyer seeks that the parties have equal shared parental responsibility, the children live with the mother and spend time with the father on a graduated basis leading to overnight time.
The issues in this case can be set out as follows:
A.Does the father pose an unacceptable risk to the children?
B.If so, should he spend any time with the children and if so, what kind of time, and if not, what kind of time should he spend with them?
C.Should the parties have equal shared parental responsibility for the children or should the mother have sole parental responsibility?
Background
Mr Duffield was born on (omitted) 1970 and is now aged 47 years. He currently works full time as a (occupation omitted).
Ms Dobbs was born on (omitted) 1971 and is now 46 years old. She is a qualified (occupation omitted), although at the time of trial she was unemployed and in receipt of a Centrelink Parenting Payment.
The parties commenced a relationship in 2005 and started living together in December of that year. They met when they were working at the same organisation in Melbourne.
X and Y are the only children of the relationship, although Mr Duffield has two adult children from a previous relationship, one of whom tragically died only weeks prior to the trial of this matter.
The parties separated on a final basis on 29 September 2014 and the mother subsequently moved some 235km away to (omitted) to have the support of her family.
The live applications in these proceedings are the Father’s Initiating Application filed in this Court on 5 March 2015 and the Mother’s Amended Response filed 6 June 2016.
The mother has maintained throughout the proceedings that the father’s actions, including corporal punishment, have caused the children to be afraid of him and that they do not want to spend overnight time with him. The mother also fears that one of the children has been sexually abused by the father by way of inappropriate touching.
Procedural History
The father initiated these proceedings by filing an Initiating Application on 10 December 2014 in the Magistrates’ Court at Bairnsdale. At that time, the application referred to both parenting and property issues[1]. Interim parenting Orders were made in that Court on 18 December 2014 by consent, including both video phone time and supervised time between the father and the children. A notation in the Order states that at the time, the father was “strongly objecting to [supervision] and denying that supervision [was] at all necessary”.
[1] Property matters were settled on the first day of trial and final property Orders were made by consent.
On 18 June 2015, the parties came before me for the first time at the Court’s circuit sittings at Morwell. I adjourned the matter to the November sittings, sent the parties to a conciliation conference at Morwell, ordered the preparation of a Family Report and psychiatric reports of both parties, appointed an Independent Children’s Lawyer, sent the parties to a post separation parenting course and made specific times for the father to spend with the children on a supervised basis. Otherwise, I ordered that the Orders made on 18 December 2014 remain in full force and effect.
The parties next appeared before me on 29 February 2016 at Morwell where I adjourned the matter for Final Hearing in the June Circuit. I gave the Independent Children’s Lawyer liberty to provide to Dr A a copy of Ms J's Family Report dated 18 February 2016.
On 20 June 2016 the parties again appeared before me at Morwell and a further conciliation conference date was given. I set the matter down for Final Hearing in Morwell for the week commencing on 29 August 2016.
On 30 August 2016, the parties appeared before me for Final Hearing. The matter was proceeding but was unable to continue when it became apparent that the father’s adult daughter had died only a short time before. This came to light while the father was in the witness box and admitted that his evidence may be confused by the fact that he was grieving the loss of his daughter. The parties unanimously agreed that the matter ought to be adjourned to provide the father with sufficient time to grieve and to be able to give proper evidence. A later date in Melbourne was given as this was the first date the Court could accommodate. It was agreed that a transcript of the matter would be provided to the parties and that the evidence that had been given, although relatively brief, would be considered at the next hearing date. The matter was otherwise considered part-heard.
The matter continued before me at Melbourne on 7 December 2016 and took a further three full days. Witnesses were the father, the mother, the maternal grandfather Mr D (“Mr D”), psychiatrist Dr A (“Dr A”), the mother’s counsellor Mr M (“Mr M”) and Family Report writer Ms J (“Ms J”).
On 9 December 2016, after submissions from counsel, I reserved my judgment.
Issues and Evidence
A. Does the father pose an unacceptable risk to the children?
The mother’s evidence
The mother’s evidence is found in her Trial Affidavit sworn 3 June and filed 6 June 2016, in the affidavit of her father, Mr D, the affidavit of her counsellor Mr M, and in her evidence and that of Mr D and Mr M at trial, all of which I have carefully considered.
The mother’s case is very succinctly put in the family report of Ms J dated 18 February 2016, where she states, at paragraph 2:
2. The mother alleges that Mr Duffield was physically, emotionally and verbally abusive to her and their son X in the presence of Y. She claims that the father has pushed (sic) smacked, hit, bit, pinched and bent X’s fingers as a way of making him behave and sometimes sheer out of anger (sic). She further alleges that over the years the father was in the habit of swearing, yelling and shouting at her and X, in the presence of their younger son Y causing much distress to all three of them.
In her Trial Affidavit, Ms Dobbs sets out numerous examples of the father’s behaviour from 2006 to 2014. Some examples, which do not exhaust that list by any means, are:
· during an argument in 2006 Mr Duffield “stood in front of our bedroom door refusing to allow me to leave while yelling and swearing at me and I was frightened Mr Duffield would hit me”
· on another occasion in 2006 Mr Duffield “became angry because I had been busy with study and work and not yet unpacked (some boxes). Mr Duffield was standing over me in a physically threatening way; leaning into my personal space and his behaviour went on long enough that I become frightened for my physical safety.”
· In 2008, when Ms Dobbs was living at (omitted) and Mr Duffield was living in Melbourne, “Mr Duffield and I would talk on the telephone most evenings and on the occasions when a disagreement arose escalating to Mr Duffield speaking to me in a loud voice, harsh tone and sharp manner often using offensive language including the words “F*#k you” we would hang up and Mr Duffield would call later the same evening acknowledging that there was no need for what happened or words to that effect.”
· In 2009, when she was pregnant with X, “Mr Duffield’s behaviour continued to be belittling and abusive with Mr Duffield yelling and screaming at me, and always raising the issue of my depression and making me feel bad about my mental health […]”.
· “In or about June 2010 was the first time I observed Mr Duffield hit X was when X was only a few months old and became unsettled and crying in his bassinette. Mr Duffield initially lent (sic) over the bassinette and calmly attempted to sooth X, gently rocking X and saying “shhss” (sic) in a soft tone. However when X did not settle within a few minutes Mr Duffield raise (sic) his voice and harshly told X to settle down and then abruptly stopped soothing X. When X did not settle Mr Duffield lent (sic) over the bassinette again and hit X with an open hand across his lower back and bottom.”
· Ms Dobbs deposes that “(a)fter several instances of Mr Duffield raising his voice and hitting X I moved X out of our bedroom and into his own room in an attempt to eliminate this behaviour, however this was not successful as Mr Duffield continued this impatient and aggressive behaviour towards X.”
· “Mr Duffield would also yell and swear at me criticising loudly, questioning my settling techniques as I would attempt to settle X in his cot or when I was outside of X’s bedroom door implementing recommended settling techniques”.
· In 2012, Ms Dobbs deposes that when she returned home from work and X had been in his father’s care X would often tell her that “Daddy smacked me”. She says that when she asked Mr Duffield if that were so, “Mr Duffield would reply “Yes” or words to that effect. This dialogue initially took place weekly increasing to almost daily.”
· Ms Dobbs’ evidence was that she changed X’s bedtime routine such that she remained with him until he had fallen asleep in order to prevent Mr Duffield from smacking X when he got up after he had been put to bed.
· “In or about April 2013 shortly after X turned 3 Mr Duffield chased X around the house with a raised hand yelling at X and I could see X was becoming distraught and panicked about getting caught. I was frightened and felt ill but was worried if I intervened it would make things worse for X. Similar instances continued to occur during 2013 and 2014.”
· When the family was travelling to Melbourne from (omitted) in December 2013, Mr Duffield, who was driving, had reached into the back seat and smacked X when X asked for the volume on his DVD to be turned up, as he believed the DVD was loud enough. When X began to cry, Mr Duffield threatened to smack him again if he did not stop. Mr Duffield “lowered X’s (sic) window resulting in cold hard air blowing onto X while travelling at a high speed. X’s level of distress was unbearable and I was yelling at Mr Duffield to put the window up and to calm down.” It is Ms Dobbs’ evidence that it was Mr Duffield’s regular practice to lower the window next to X if he was crying in the car.
· In December 2013, when Ms Dobbs was eight months pregnant with Y and the parties were staying at units owned by the maternal grandparents at (omitted), Mr Duffield threw a remote control at her during an argument. When she responded that she did not deserve that treatment, Mr Duffield had “responded loudly and harshly “I will tell you what you deserve””. Ms Dobbs deposes that at that point her father had entered the unit and confronted Mr Duffield.
· On another occasion on 3 December 2013, while the parties were staying at the home of the paternal grandparents, Ms Dobbs deposes that she “walked into the bedroom and saw X lying on top of Mr Duffield and Mr Duffield caressing X’s bare bottom in a manner similar to which Mr Duffield enjoys during our intimacy. I recall feeling angry, shocked and ill at what I saw and the look of enjoyment on Mr Duffield’s face.”
· It is Ms Dobbs’ evidence that when she returned home from hospital after giving birth to Y in early 2014, “Mr Duffield’s behaviour towards X was becoming more frequent, X was becoming more aggressive and the situation was deteriorating further”. On one occasion when X had complained that his father had bitten him, Mr Duffield had admitted to doing so, saying it was in retaliation for X sitting on his head.
· In early 2014 the parties had attended the Incredible Years Parenting Program at (omitted), (“the IYPP”) during which Mr Duffield had admitted to smacking X and the facilitator had asked all participants to undertake that they would not smack the children for the duration of the 12 week program. Mr Duffield had given that undertaking. However, during that 12 weeks, it is Ms Dobbs’ evidence that X had told her that his father had bitten and pinched him, and “pushed me in the face”, and that on each occasion, when asked, Mr Duffield had agreed that he had done so. Further, when told during the IYPP that X’s behaviour was typical of a child of his age, Mr Duffield had stated that he was tired of hearing that X’s behaviour was expected of a child of his age, and that he “expected X to do what he was told and when he was told or words to that effect”. It is Ms Dobbs’ evidence that upon completing the course, “Mr Duffield continued to be abusive towards X when “disciplining” him including recommencing hitting, forcefully moving X, yelling and swearing at and in the presence of X, slamming doors and threatening X with being smacked whereby X appeared to fear Mr Duffield in that he would cower away from Mr Duffield or remain close to me and would hesitate if he was about to spend time alone with Mr Duffield”. It is Ms Dobbs’ further evidence that Mr Duffield refused to support her in implementing the techniques learned at the (omitted).
· Later in 2014, she had observed X lying on top of Mr Duffield in the bath and moving back and forth over his genital area. Ms Dobbs says that after that, “when Mr Duffield insisted he and X have a bath together I asked X and Mr Duffield to wear their jocks in the bath to respect each other’s privacy.”
· At about the same time, X had complained that his bottom was sore and Ms Dobbs took him to her general practitioner who examined X and “informed me he could not see any evidence X had been interfered with or words to that effect and I recall feeling very relieved, however knowing what I saw on or about 3 December 2013 I continued to bathe X or to be present as much as possible when Mr Duffield bathed or showered him.”
· “Between March/September 2014 (sic) on at least three occasions when Mr Duffield was bathing or showering X I heard Mr Duffield raise his voice, the sound of hitting on wet bare flesh and X screaming. Mr Duffield confirmed he had smacked X each time and X’s (sic) buttock cheek and/or upper thigh had a visible red hand mark.”
· On one of those occasions, Ms Dobbs deposes that she had heard X screaming for her while in the bathroom with Mr Duffield, and that she had entered the room to see “X distraught standing naked and wet with Mr Duffield kneeling on the floor with his left hand raised.
I told Mr Duffield to move away from X or give me X or words to that effect. Initially Mr Duffield refused to leave yelling at me and looking at me with a threatening look. After several requests Mr Duffield threw the towel he was holding at me and stormed out of the ensuite and the house. I comforted X as he continued to cry and say “daddy smacked me”. I dried X off and checked his body for injury and noticed a red hand mark on X’s upper thigh and buttock. This mark lasted for several days and appeared bruised[…]”.
· After an incident in May 2014 where “Mr Duffield yelled and swore at me and berated me in the presence of X and Y” Ms Dobbs had taken the children “still in our pyjamas and with minimal belongings” and gone to her parents’ home in (omitted). After a week she and the children had returned to the parties’ home in (omitted), and “Mr Duffield and I attempted to discuss our issues however Mr Duffield became verbally aggressive whereby he paced back and forth and stated if I left again he would go and talk with my boss, Mr G, and told me the Court would give him the boys as I could not cope with them or words to that effect.”
· “109. In or about August 2014 when Mr Duffield was feeding Y solid foods Y turned his head away and closed his mouth refusing to eat and Mr Duffield said to Y in an unnecessarily aggressive way to “settle down”. I instantly felt panicked and sick to my stomach as I believed this was the start of the same behaviours Mr Duffield used with X as a baby.
110. I also noticed that X would use the same tone with Y, parroting his father’s words to “settle down” if Y cried.
111. Y was present during some of the instances when Mr Duffield yelled, hit, pushed and bit X.
112. When reaching to administer a slap or verbal abuse to X, Mr Duffield would reach over the top of Y to do so as he was driving.113. Y has witnessed Mr Duffield yell and swear at me.
114. In or about August/September 2014 Mr Duffield said to X “I will smack you in front of your mother”; and Mr Duffield also said to me in front X (sic) on at least four occasions that “I will wipe my hands of X if you don’t change things” or words to that effect;
116. When I asked Mr Duffield why he smacked X, Mr Duffield would say that he did so because X had done the same thing to him or X had deserved it or words to that effect;· On an occasion shortly before separation in September 2014 when Mr Duffield was bathing X, Ms Dobbs deposes to hearing “X scream and heard the sound of wet flesh being hit”. When she confronted Mr Duffield, he “said that he had smacked X because X had dipped his toothbrush in the bath water when Mr Duffield had asked him not to or words to that effect.”
Ms Dobbs deposes that the incidents that led to her taking the boys and travelling to her parents’ home in (omitted) on 29 September 2014, at which time the parties separated, involved Mr Duffield smacking X in the car, pinching X at his parents’ home in Melbourne, bending X’s fingers back in the car on the way home which caused X to cry hysterically, threatening to leave X and her by the side of the road, forcibly pushing X into his car seat, and, in the final incident, smacking X in the middle of the night when X had left his bedroom and tried to come to her.
All of these incidents are described in some detail in Ms Dobbs' Trial Affidavit.
Ms Dobbs deposes that after separation, “I was having difficulty with Mr Duffield’s continuing emotional and psychological abuse and that he was refusing to allow me to return to collect my personal papers and belongings and also X and Y’s clothing and toys.”
It was in those circumstances, she says, that she received legal advice to apply for an Intervention Order, which she did on 24 November 2014, when an Interim Intervention Order was made against Mr Duffield on an ex parte basis after Ms Dobbs had given evidence to the Magistrates’ Court at Bairnsdale.
It is Ms Dobbs’ evidence that Mr Duffield had breached that Intervention Order on several occasions, including one where he had “liked” a Facebook item posted by his cousin in which “Mr Duffield’s cousin called me a C*#T and tagged me in that post thereby causing it to appear on my Facebook page, following which Mr Duffield reposted the grossly offensive original post.”
Ms Dobbs describes Mr Duffield attempting to obstruct her from collecting her and the children’s belongings, not providing all items he claimed to be providing, and indeed providing some items which had been damaged, when she attended the parties’ home with police pursuant to a court order on 13 December 2014.
At trial, Ms Dobbs confirmed her affidavit evidence, and was cross-examined by the father’s counsel and counsel for the Independent Children’s Lawyer.
She confirmed that her proposal was for extremely limited and indefinite supervised time between Mr Duffield and the children because she simply could not be satisfied that he would not revert to using corporal punishment on them and to verbally and emotionally abusing them were he to spend time with them unsupervised.
She acknowledged that she had suffered from depression in the past and that she was currently taking antidepressant medication and receiving counselling for depression and anxiety. She said that her depression had started after she had sustained an injury to her back in 1994 which caused her severe and ongoing pain. It was her evidence that while she took medication for her depression, she was able to manage her pain without medication.
She acknowledged further that after X’s birth she had been particularly concerned that she would not be able to keep him safe not only at home, but in the outside world.
When asked whether her concerns about the father’s behaviour might have been heightened or exaggerated by those fears, she stated that she had considered that issue carefully, and that she now thought that her depression and anxiety had actually caused her to downplay the father’s behaviour. Before separation, she had believed that the problems she and the father were experiencing in their relationship were her fault, and that she had perhaps been overreacting to what she now knew to be his abuse of X and herself.
She described Mr Duffield as having two faces - one “abusive”, the other “kind”. She specifically denied exaggerating the issues between them, or creating additional drama, or viewing “normal arguments” as abuse.
She agreed with counsel that it was her case that Mr Duffield had been controlling and that he had controlled her and the children through violence.
She denied that her own behaviour, in insisting that Mr Duffield stop smoking marijuana, in the parties’ decision for Mr Duffield to move from Melbourne to (omitted), in their decision that she would go to work and he would stay home with X, and in their decision to have a second child, was controlling. She further denied that Mr Duffield’s behaviour in relation to those issues contradicted her evidence of him having been controlling.
Ms Dobbs was taken to her affidavit evidence that on 14 October 2014, after a phone call during which she had told Mr Duffield that his time with X and Y would need to be supervised, she had “later received further text messages from Mr Duffield which were aggressive and hurtful”.
When shown the annexure to her Trial Affidavit which contained texts from 17 October 2014, Ms Dobbs was forced to agree that the texts displayed were neither aggressive nor hurtful. However, she said that other texts from 14 October 2014 had contained such material. She said she had not annexed those texts to her Trial Affidavit because her phone had deleted them and they were not available at the time of swearing the affidavit. Given that fairly innocuous texts from 17 October had been available, her evidence that those said to be offensive and sent on 14 October were not available appeared to be contradictory if, as she said, text messages were routinely and automatically deleted from her phone.
Ms Dobbs was taken to the Family Report where Ms J records her as saying that she was afraid that the father might injure X “to a point of permanent disability or death”. Ms Dobbs said that that had been her fear at the time of separation, not at the time of the Family Report. She denied that that statement had been an exaggeration saying she believed that there had been a basis for that fear.
When it was put to her that the only injury to X that she described in her affidavit material was red marks on his thigh and buttocks, Ms Dobbs said that she had seen bite marks on X’s arm on an occasion when she had been in the kitchen and had heard X yell. She said that when he had come to her he had told her “Daddy bit me”.
When counsel put to her that if she had seen those marks she would have recorded them in her affidavit, Ms Dobbs said that if she had recalled them at the time she would have done so. She conceded that she had not taken photographs of X’s injury or taken X to the doctor after seeing any marks on X’s body. It was her evidence that she had not done so because she was afraid of the father.
When she was taken to four particular instances in her Trial Affidavit where she described injuries being incurred by X while in his father’s care, she confirmed that evidence and was unable to be shaken in relation to it.
It was also her evidence that she did not tell Mr Duffield that the reason she wanted him and X to wear underpants in the bath was that she feared he was sexually abusing X. She said she had been afraid to give Mr Duffield the true reason because she feared his response.
It was her adamant evidence that while Mr Duffield had worn underpants while bathing X on one occasion after her request, he had not bathed with X after that occasion, although he had supervised X’s bath/shower. Ms Dobbs said that she had tried to ensure that it was she who bathed X after that incident.
In relation to the incident at the paternal grandparents’ home in December 2013 described in paragraph 24 above, Ms Dobbs accepted that she could not “know without doubt” that Mr Duffield had sexually abused X, but that she was adamant that what she described was what she saw, and that what she saw was inappropriate touching and not normal innocuous affection between a father and son. She accepted that she could not put that belief any higher than that there was a “possibility” that X had been sexually abused.
Later, she said that she had had difficulty believing that Mr Duffield had sexually abused X because it was “not what I want to know”, but that she had never thought he would “do anything that he’s done to our children”.
Ms Dobbs accepted that the detailed and lengthy report from the Anglicare Children’s Contact Centre in (omitted) (“the Contact Centre”) about the supervised time the children had spent there with their father over an almost two year period was very positive, both about the relationship between the children and Mr Duffield, and about the parenting techniques he had used in disciplining/managing the children.
However, she was very clear that while she believed the children were safe with their father in a supervised setting, she had no confidence that Mr Duffield would behave appropriately if he were not being supervised. She said that her concerns were about physical, emotional and sexual abuse.
To her credit, she acknowledged that the children love and miss their father and enjoy the time they spend with him at the Contact Centre, and while she agreed that X had asked her if Mr Duffield could come to stay, it was her evidence that he had not asked if he could come home to live.
When asked about the Intervention Order she had obtained in November 2014, Ms Dobbs acknowledged that she had done so on legal advice and that Mr Duffield had not done anything specific at that time to cause her to seek that Order. She also acknowledged that the only physical violence she herself had been subjected to during the relationship was on two occasions when Mr Duffield threw a book and a remote control at her.
She denied that the Intervention Order itself, or a report she made to police when Mr Duffield sent her an email about property matters, was a tactic to be used in these proceedings, insisting that she had acted on legal advice in both instances.
It was her evidence that Mr Duffield had been charged with a breach of the Order and that he had pleaded guilty to that breach.
Ms Dobbs confirmed that she was implacably opposed to the use of corporal punishment in the discipline of children, and while it might have been appropriate for Mr Duffield to have physically removed X when he was hitting her, she said that he had done so aggressively and inappropriately.
She was prepared to concede that her actions in asking Mr Duffield to leave the room at that time might have compromised the father/son relationship, but said that was not her intention – she was merely trying to protect her son from his father’s aggression.
She was also prepared to accept the father’s evidence that he felt cut out and ineffectual when she did that, but said that was preferable to allowing Mr Duffield to take X and have him put in further danger.
Ms Dobbs conceded that X’s behaviour could be challenging and that he had once drawn a knife on her. It was her evidence that she had said “Don’t you dare!” and X had put the knife down.
When taken to records of her attendances upon her counsellor and her general practitioner in 2013, Ms Dobbs admitted to having told her counsellor that her parents thought she was exaggerating when she told them about the father’s behaviour. She did not believe that they were right.
She acknowledged that at times, Mr Duffield was a loving, caring and committed father to X and Y, but denied that he had been that father at all times. She denied the suggestion that while the relationship had been somewhat volatile with verbal arguments between the parties Mr Duffield had never been violent towards her, saying simply, “He was”.
Under questioning by counsel for the Independent Children’s Lawyer, Ms Dobbs acknowledged that an allegation of sexual abuse was “about the worst thing” one could allege in family law proceedings, but she did not resile from her earlier evidence.
She acknowledged that she had not reported any sexual abuse to the police, to the Department of Health and Human Services or to her parents, but she did state that she had told her sister who is a (occupation omitted) of her concerns. She accepted that her sister had not sworn an affidavit in these proceedings.
Ms Dobbs was clear that while she had not known what to think at the time - that is in late 2013 and early 2014 - she now believed Mr Duffield’s behaviour in relation to X to have been sexual abuse. She understood that Mr Duffield denied that, but she was clear that she wanted the Court to make a finding in relation to that evidence and that she believes that the father’s behaviour poses an unacceptable risk to both X and Y in that regard.
She said her fears had been reaffirmed when X told her between April and September 2014 that he had been touching other children at kindergarten in an inappropriate manner, and when told that was unacceptable behaviour, he had said that it was all right as long as nobody saw him or “if Daddy does it”. She said it was after that that the idea that X had been sexually abused by his father had remained “in the back of my mind”.
When the questioning turned to the incident where X had drawn a knife against her, Ms Dobbs stated that she had spoken forcefully to him and he had put the knife down. She had later had a conversation with him to the effect that there are other ways to express one’s feelings. She did not attribute X’s behaviour on that day to his father.
When counsel for the Independent Children’s Lawyer asked Ms Dobbs whether she would accept a finding by the Court that there had been no sexual abuse, she said that there would “always be something in (her) mind” because of what she had seen.
She said that if the Court were to make a finding that there was an unacceptable risk to the children she would not need to tell the children anything because nothing would change and they would continue to see their father at the Contact Centre.
However, if there were no such finding, and unsupervised time were to be ordered, she would tell the children that their mother and father had not been able to agree on that issue and that they had asked “someone else” to do so. She would also tell the children that their father had promised not to hurt them.
When questioned about whether that would reinforce for X the idea that his father had hurt him, Ms Dobbs said that she understood it would reinforce X’s experience of his father hurting him, and then she said that X knows that she believes him to be unsafe in his father’s care. However, she then said that she believed that X would have minimal awareness of the conflict that exists between his parents.
Under further questioning by counsel for the Independent Children’s Lawyer, Ms Dobbs acknowledged that she had not read the report of the Contact Centre in its entirety, despite her whole case being founded on the need for ongoing supervision, although she acknowledged that the report was positive about Mr Duffield’s behaviour and his relationship with the children.
In relation to her evidence about the father smacking or hitting X in the parties’ home, Ms Dobbs was forced to admit that she had never actually seen him hit X, but she stated that she had heard the sound of smacks and X’s distressed response and she had seen the marks on X’s body.
Her evidence was the same in relation to her allegation that Mr Duffield had bent X’s fingers back while the family was travelling back to (omitted) on 28 September 2014: that is, she had relied on what she heard and on what X told her had happened when Mr Duffield had reached over to the back seat. She said she knows that Mr Duffield denies having done that to X but she believes what X told her.
When asked to say what was good about Mr Duffield as a father, Ms Dobbs was able to say that he loves the children, that he has fun and jokes with them, that he engages with them, that he encourages their skills and that he teaches them how to climb and to kick balls. She said that he is very loving and encouraging “when they’re doing what they’re told” but that if they did not do what they were told, Mr Duffield would change. Ms Dobbs had experienced Mr Duffield interacting with the children on Skype over a period of years and she was clear that when the children were safe, the relationship between them and their father was a positive one.
She accepted that the messages she had given the children about their father, such as asking him to put a shirt on when he was interacting with them on Skype, might not be a good message, but said that that had not been her intention.
In re-examination, Ms Dobbs reconfirmed her evidence in relation to the incidents when she believes Mr Duffield had smacked or assaulted X, saying she had heard “flesh being hit” and the father’s voice raised in anger and that she had no doubt that he had hit and/or hurt X.
Ms Dobbs’ evidence as to why she had not reported these incidents, especially given her professional experience as a (occupation omitted), was that she could not do so because she thought the conflict between her and Mr Duffield was her fault and that was why he was abusing X. Her evidence about this was given through tears as she said that she had always been worried that if she were unable to get X to behave, it would be her fault that his father was angry with him.
While she had not seen any incident of Mr Duffield abusing Y (and it was noted that Y was only eight months old at the time of separation), she was very concerned that because Y is now older and more inclined to be non-compliant, he is now at risk of Mr Duffield behaving towards him as he had behaved towards X if Mr Duffield’s time with the children were not supervised.
It was her evidence that when Mr Duffield was angry, he would yell and swear and he would stand up to his full height with anger in his face and eyes, while his body “gets puffed” and he would be “out of control”. At such times, said Ms Dobbs, she was not thinking about the messages she might be giving to the children – she just wanted to ensure that they were safe.
Ms Dobbs’ evidence was that while she hoped Mr Duffield would not hurt the children in the future, she had no confidence that he would be able to refrain from doing so because of her previous experience of him.
The maternal grandfather’s evidence
Mr D’s evidence is found in his affidavit sworn on 2 June and filed on 6 June 2016 and in his evidence given at trial.
In his affidavit, Mr D states the following:
2. On December 2013(sic) at approximately 8.00 p.m. I was standing in my backyard at (omitted) when I heard Mr Duffield yelling at Ms Dobbs in Unit (omitted) which is next door to my unit.
3. The kitchen window was open and approximately 3 meters (sic) from where I was standing.
4. I went to the back door of Unit (omitted) and heard Mr Duffield yell “you f*#ing bitch, these losers here are shit, f*#k them I will fix them” or words to that effect.
5. I then went into Unit 1 where I observed Mr Duffield standing over Ms Dobbs in an aggressive and menacing attitude with his left hand raised, Ms Dobbs was crying and cowering on the couch. When Mr Duffield saw me, he ran to the front door and I said to him “if you ever talk to my daughter again like that I will smack you in the mouth”.6. Mr Duffield said “I apologise” a number of times, grabbed his cigarettes and went outside.
And later, he describes an incident which he says occurred between March and September 2014 as follows:
9. […] I was visiting Ms Dobbs, Mr Duffield and the children at their home at (omitted).
10. Mr Duffield, Ms Dobbs and my wife Ms Dobbs (“Ms Dobbs”) were in the bathroom showering X who was squirting water at Ms Dobbs.
11. Mr Duffield yelled at X to stop in a very aggressive tone and I walked over towards the bathroom, and sat on the arm of a couch, I was about 3 to 4 meters (sic) away from the bathroom in a dark part of the house, the bathroom was brightly lit.
12. X started crying and was upset, Ms Dobbs said “it’s Okay” Mr Duffield said aggressively “no it’s not and that’s that”
13. Mr Duffield then grabbed X’s arm, X tried to pull away. Ms Dobbs came out of the bathroom and Ms Dobbs went to get a towel. Mr Duffield looked around; (sic) to see if anyone was watching, he could not see me because I was in the dark.
14. I observed Mr Duffield backhand X across the head and as a result X fell hitting his head on the wall of the shower. Mr Duffield left the bathroom and spotted me, I walked towards him, I was angry and I wanted to assault him, but that would have upset X to see us fighting, Mr Duffield then went into the other lounge Ms Dobbs then came back to the bathroom and took X who was crying.
It is Mr D’s further evidence that over the period of the relationship between the parties he saw his daughter change from “a confident person who knew what she was doing and where she was going with her life” to one who was “confused about what she wanted and had difficult (sic) making decisions and her anxiety and depression became worse she became more unhappy”.
It was his view that “Ms Dobbs and X have both appeared to me to be a lot happier and more settled since Ms Dobbs left Mr Duffield and moved to (omitted)”.
At trial, Mr D confirmed his affidavit evidence and stated that his affidavit contained a full account of what he had seen on the two occasions mentioned. He stated further that they were the only two incidents of untoward behaviour he had seen in the nine-and-a-half years of his daughter’s relationship with Mr Duffield.
It was his evidence that until the incident he describes as having occurred in December 2013, Mr Duffield had been friendly towards him and his wife and there had been no cause for him to worry about Mr Duffield’s behaviour in relation to his daughter and grandchildren.
He conceded that he had written his affidavit some two-and-a-half years after the events of December 2013 and stated that he had not discussed those events with his daughter between that night and mid-2016 when they had talked about him swearing his affidavit. He was adamant that the fact that he had spoken to his daughter about the evidence in his affidavit did not mean that that evidence was untrue.
Mr D was unable to be shaken in his evidence about either incident he describes in his affidavit, and he was clear that he actually saw the father hit X at the parties’ home in (omitted) between March and September 2014.
It had been his view prior to December 2013 that Mr Duffield had been a good father to the children in general, and that he had been attentive to their needs, but Mr D said he had been doubtful since the incident in December 2013, and had had those doubts confirmed when he saw him hit X between March and September 2014.
On that occasion, it was Mr D’s evidence that he had been sitting four or five metres away from X when Mr Duffield hit him. He said that the sound of X’s head hitting the wall was loud and that X had been standing about two or three centimetres from the shower wall when Mr Duffield hit him and his head hit the wall.
Mr D said that Mr Duffield had then “stormed off”. He had not thought of calling the police. He acknowledged that he had been very angry with Mr Duffield at the time but that he had been trying to keep the peace for X’s sake and that he had not taken any action but to try to comfort X.
Mr D agreed with counsel for the Independent Children’s Lawyer that the incident which occurred between March and September 2014 had been a very powerful experience for him.
In re-examination, counsel for the mother asked Mr D to show the court what had happened on that day, and it must be said that his “kinetic evidence” of the incident was very disturbing indeed, particularly when one realises that X was three or four years old at the time.
The mother’s counsellor’s evidence
At the time of trial Mr M had been Ms Dobbs’ counsellor for some two years, and he swore an affidavit on her behalf on 26 August 2016, that affidavit being filed on the same day.
Mr M states that he had “been seeing Ms Dobbs in my capacity as a Counselling Psychologist since November 2014 to help her with adjustment and emotional issues arising from her separation from her husband (sic) Mr Duffield (“Mr Duffield”) , and relating to the ongoing parenting and care of her children X (“X”) and Y (“Y”).”
Mr M goes on:
4. Ms Dobbs stated very early in our sessions that her prime reason for separating was that Mr Duffield had become physically and verbally abusive towards her eldest son X. Mr Duffield would hit, pinch and even bite X because ‘he didn’t do what he was told’.
5. Ms Dobbs felt that Mr Duffield had unrealistic expectations of the four-year-old’s behaviour and would react in an infantile manner himself if his commands were not obeyed. Ms Dobbs was also being subjected to emotional abuse but her key concern was the protection and safety of her children. X was also starting to mimic the aggressive behaviour when he did not get his own way.
6. Ms Dobbs has some genuine concerns about the safety of both her children, but more specifically X if unsupervised contact with their father is permitted.It was Mr M’s evidence that despite her experiences, he did not believe that Ms Dobbs felt “in the least vindictive towards Mr Duffield” and nor did she wish to punish him by withholding the children from him.
He describes Ms Dobbs as someone whose “reality testing is sound and she is well adjusted emotionally, grounded and logical” and who “does not present as an unduly anxious individual”.
Mr M reports Ms Dobbs as telling him that “X can be aggressive and prone to temper tantrums”, and that she was concerned that such behaviour might “possibly trigger abusive treatment from his father in unsupervised circumstances”.
At trial, Mr M confirmed his affidavit evidence and was subjected to cross-examination from the father’s counsel and counsel for the Independent Children’s Lawyer.
It was his evidence that the counselling he had engaged in with Ms Dobbs had involved some cognitive behaviour therapy and “talking through” issues.
He confirmed that he had not obtained Ms Dobbs’ files from previous psychologists she had consulted, and nor had he read any court documents. Specifically, he had not read either Dr A’s psychiatric report or the Family Report.
Mr M was then taken to paragraph 10 of the “Opinion and Recommendations” section of Dr A’s report, where Dr A states that while Ms Dobbs does not present with current signs of any psychiatric disorder, “she has experienced mixed problems of depression and anxiety in the past. It is unclear but possible that her concerns regarding the children are excessive, and a reflection of an underlying anxious disposition […]”. In response to that passage Mr M said that while what Dr A states is possible, after 2 years of seeing her regularly in counselling, he believed her concerns to have “some basis”.
Mr M said that he had seen X for some counselling on about five occasions and that he thought X’s behavioural problems were probably a combination of inherent issues and his family experience. He did say, however, that while his sessions with X had not contained any in-depth counselling, they had addressed X’s relationship with his father and some problems he was having at school.
It was his evidence that X loves his father and looks forward to seeing him, but that he had expressed being “scared” of him, and Mr M clarified that Ms Dobbs had not been present when X had said that.
He said he was not surprised to learn that neither the Family Report nor the Contact Centre report stated that X had shown any fear of his father in those settings, saying that X would not be afraid of his father in a supervised setting and that the fear he expressed was in the context of the past.
He said that some of the counselling with Ms Dobbs had been directed at difficulties she experienced with X’s behaviour and with being a single parent in that situation. Mr M said that X was a very intelligent child who, when he wanted to be uncooperative, “can do it in a masterful way”.
He conceded that he had never spoken to Mr Duffield and that he had not asked Ms Dobbs to get Mr Duffield to contact him, saying that that had never occurred to him.
Under cross-examination from counsel for the Independent Children’s Lawyer, Mr M conceded that he was not experienced in court matters, and that this was the first time he had given evidence in a family law case. However, he said he had seen many children who were caught in the middle of parental relationship breakdown and that while he was unfamiliar with the provisions of s.60CC of the Act, he had written one or two reports for court proceedings, albeit not recently.
He said that his role with Ms Dobbs was “very much” one of support, and that he understood that Mr Duffield denies ever smacking or hitting X, although he concedes having “tapped” him as a form of discipline.
Mr M said he thought it was “appropriate” for Ms Dobbs to have told X that he would be spending time with his father “in a place that was safe and they could have fun” as she states in her Trial Affidavit. He said that it was “possible” that it might have been better if Ms Dobbs had not used the word “safe” in that context, but said that Ms Dobbs would have been speaking from her own viewpoint and that not too much should be inferred from that.
The father’s evidence
The father’s evidence is found predominantly in his Trial Affidavit affirmed on 7 July and filed on 8 July 2016, and in his oral evidence given at trial.
His case, too, is very succinctly set out in the Family Report of Ms J dated 18 February 2016, where she says:
3. Mr Duffield vehemently denies all the allegations made by the mother. He expresses concerns about the mental health status of the mother and claims that she suffers from anxiety and depression and is an ineffective parent who had strategically planned the events before and after separation and has no genuine interest in allowing him to have a meaningful relationship with between (sic) him and his children. He maintains that he has been a loving and responsible parent to his children and both his sons share an affectionate relationship with him.
In his trial affidavit, Mr Duffield deposes as follows:
11. That throughout our relationship I was aware that Ms Dobbs suffered from depression and was on medication to combat same as well as her chronic back pain. Following X’s birth Ms Dobbs suffered post natal depression and this combined with her existing depression. From that time there where (sic) marked changes to her emotions including increased moodiness, angry outbursts and changes in her behaviour. I was always concerned about her depression and her ability to engage with X and me as a result of a mental illness.
The father states that he was disappointed when Ms Dobbs suggested that they attend a “sleep school” soon after X’s birth to assist her to settle X at night because he felt that she was rejecting and ignoring his experience of having had two children in previous relationships. He says that that circumstance was “the start to an ongoing lack of support to my input”. He nevertheless attended the sleep school with Ms Dobbs.
It is his evidence that the mother “had shared with me on numerous occasions her concerns with her parenting style and wanted to get help to ensure that she could be the best parent she could be”. He says that in those circumstances he supported her by attending the (omitted), and that the parties were able to discuss their different parenting styles and put in place a number of strategies to assist with parenting the children.
Mr Duffield says that X displayed some behavioural issues, and that he had specifically told Ms Dobbs that he wanted to be involved in disciplining X. It is his evidence that Ms Dobbs told him not to interfere and that she had the matter in hand. He says that even after the parties had attended the (omitted), Ms Dobbs had difficulties “following through with and applying the skills we had obtained”.
He deposes that:
27. […] Slowly but surely Ms Dobbs excluded me from dealing with being involved in disciplinary matters related to X. Ms Dobbs made it most clear that there was to be only one way of disciplining X and that was her way.
28. […] Ms Dobbs’ approach to disciplining X was impacting on my ability to engage with X. Slowly Ms Dobbs’ actions made it difficult for me to engage with X. I was most concerned that he needed to be set barriers, taught and provided guidance in relation to his behaviours including “follow through” and consequences of same.
29. […] X’s behaviour deteriorated, he would bite, punch, pinch, kick and physically pushed Ms Dobbs. I would try to support Ms Dobbs by intervening; verbally backing her up. However, Ms Dobbs was not able to influence X’s behaviour. The childcare centre that X was attending never had any concerns with X’s development.
30. I would take a ‘harder’ line and on very limited occasions would “tap” X in an appropriate manner.
Mr Duffield says he had tried to discuss the situation with Ms Dobbs “on numerous occasions”, but that she “would not work with me to address X’s behavioural issues”.
It is his evidence that he “continued to put into practice the parenting skills that I had obtained through the parenting course and combined with my own experiences as father for the fourth time I believe that I was acting in a positive and child focused manner”.
His version of the event which occurred in the early hours of 28 September 2014, an event which led to the parties separation the next day, is, unsurprisingly, very different from that of Ms Dobbs.
He says that X left his bed in the room next to Mr Duffield’s, that Mr Duffield followed him to the lounge room and told him to go back to bed. It is his evidence that X refused and said he wanted to go to bed in his mother’s room. When Mr Duffield told him that was not an option, he says X began screaming which woke Ms Dobbs and brought her to the lounge room. X then told Ms Dobbs that Mr Duffield had smacked him, to which Mr Duffield responded that no such thing had happened, and that X was trying to manipulate the situation so that he would get his own way.
It is his evidence that Ms Dobbs had not believed him and that she had asked him to remove himself from the situation. He told her that he needed her support as he was telling the truth, but says that Ms Dobbs told him “not to lay a hand on him and get out of her sight”.
He says he then simply went back to bed in the spare room and that when he arrived home from work the next day Ms Dobbs, X and Y were gone together with their belongings.
Mr Duffield does not specifically respond to any other of the pre-separation allegations made by Ms Dobbs in relation to his treatment of X or of her.
He says he was “appalled” when he was served with the Interim Intervention Order made in the Bairnsdale Magistrates’ Court on 24 November 2014, and states that he “totally” denies all allegations made in those proceedings.
It is his evidence that because Ms Dobbs is trained as a (occupation omitted), she was “manipulating a system that she is very familiar (sic) for her own ends”.
He concedes that he breached the Interim Intervention Order “inadvertently” and states that he had not fully understood its terms although he regretted the breach. He gave an undertaking as a result of that charge, that undertaking expiring on 24 May 2016.
In relation to his time at the Contact Centre, he deposes that:
Whilst I total (sic) and emphatically deny that it is necessary for my contact to be supervised I have ‘religiously’ attended and spent time with my children. The children have really enjoyed the contact and I have as well.
Mr Duffield refers to the reports of the Contact Centre, Dr A, and Ms J, and states that “my priority is my relationship with my children”. He says he is concerned that Ms Dobbs’ “unsubstantiated, allegations of violence against her and the children remain an impediment to my spending time with my children”.
He asserts that there is no evidence that ongoing supervision of his time with the children is necessary “as there has not been any acts (sic) by me to justify supervision”.
He further deposes:
96. That I believe Ms Dobbs’ continued hostility towards me including further accusations are an ongoing effort to try and stop me having contact with the children and this behaviour is clearly not in the best interests of the children.
97. That I have done everything asked of me, attended upon psychiatrists, family report writers, had supervised contact with my children at a Children’s Contact Centre for over 12 months. I have complied with all the court orders to date. I believe I have demonstrated that I am absolutely no threat to the children and they should be able to spend time with me their father unsupervised.
The first part of the father’s oral evidence was given during the Morwell sittings on 30 August 2016.
On that day Mr Duffield confirmed his affidavit evidence and was answering questions under cross-examination about his criminal history, his relationship with his previous wife and his drug use history, when, under some pressure from counsel for the mother, he said he was finding it difficult to remember certain things because his 27-year-old daughter Ms K had recently passed away.
Mr Duffield was clearly struggling with his evidence and concentration and it was decided that in fairness to him, and given the seriousness of the allegations against him, the trial should be adjourned to another day. Unfortunately, the only time the matter could be accommodated was in December 2016, and I therefore adjourned the trial part heard to 7 December 2016 for a three day hearing.
Before the trial was adjourned Mr Duffield was forced to concede that he had not told Dr A the full story in relation to his criminal history, despite telling the Court that he had done so, and that he had convictions for dishonesty offences and family violence offences, as well as for a drink-driving offence and a further driving offence.
He stated that he had been “going through a lot of emotional stress in those times of my life and still going through that stress right now and some of these things are hard to recollect”. It was his evidence that he had not recalled that criminal history when he spoke to Dr A.
Nor could he recall specific instances where he had attended at various Magistrates’ Courts to answer charges in relation to those offences.
After agreeing that he had used “multiple” drugs in his youth, it was his evidence that Dr A’s statement that “He has not used other illicit drugs” was misleading in that no drugs other than marijuana had been mentioned in his conversation with Dr A.
He admitted the breach of the Intervention Order obtained by Ms Dobbs by “liking” the Facebook posting of his cousin, and agreed that he had been found guilty of that charge with no conviction being recorded.
When it was put to him that he had not specifically responded to the multiple detailed allegations in relation to his treatment of X, nor elaborated on his simple denial of all allegations, Mr Duffield’s evidence was that he had in fact done so. He said: “I remember filling out paperwork and submitting it to my lawyers”.
I note that no such evidence was placed before the court in affidavit form prior to trial.
When asked about his relationship with his former wife, Mr Duffield conceded that he had been verbally abusive to her and that he had raised his voice with her, although he denied the veracity of Ms Dobbs’ evidence that he had told her that he was aggressive with his former wife because that was how he got what he wanted from her.
He stated that if Ms Dobbs was saying that she had heard him being verbally aggressive to his former wife on the telephone, she was lying. It was his evidence that he had only ever been verbally abusive to his former wife during his relationship with her and not afterwards, therefore making it impossible for Ms Dobbs to have heard him behaving in that fashion.
Mr Duffield denied having been “deeply angry and upset” when he separated from his former wife, but was forced to concede that he had told Ms J that he had indeed been “angry and deeply upset” at that separation.
It was during a line of questioning in relation to his former wife allegedly having called the police because he had sent her a suspicious package that Mr Duffield provided the information about his daughter’s death, and the matter was then adjourned.
On 7 December 2016 the trial resumed with Mr Duffield still under cross-examination by counsel for the mother.
He denied that he had argued with his former wife about money until it was pointed out to him that he had told Dr A that he had “yelled” at her in relation to her excessive spending. He acknowledged the contradiction between those two statements, but sought to minimise it by saying that he had not recollected saying that to Dr A. He then said that he could not remember everything, especially “something so trivial as that”.
He was asked whether he had sent the mother a text message on 15 October 2016, about six weeks after the previous hearing. He responded that he did not recall.
Counsel then read the text message to him. The text, which was entered into evidence, states as follows:
The days of you being controlling and dictating is over! My boys will be with me soon as it’s their right. Instead of having them 24/7 they will be in my care without harm and you will be on your own. Welcome to my past 2 years. What goes around comes around and my boys need their father in their life as it’s their right to be with me. You know that I’m a good father and they were and will be safe and loved by me.
Mr Duffield then conceded that he had sent that text, and when asked whether he thought it was appropriate, he said that if Ms Dobbs had had any problem with that she could have let him know and she could also have called the police if she had wanted to.
He disagreed that that answer suggested that he lacked insight into the impact of his behaviour, saying that it had not been his intention to be provocative or inappropriate and that “text messages can be misinterpreted”. When asked what he meant by that, Mr Duffield said he was referring to X and Y being in his care rather than them living with him, and that he had he had said that Ms Dobbs would be alone in order to get her to empathise with what he had been going through for the past two years.
I was not impressed by that evidence.
Mr Duffield denied that he had used the phrase “f*#ked in the head” when referring to the mother, although he said he had his own beliefs about her mental state.
He admitted raising his voice to her in the presence of the children but was not prepared to say that she had been scared by his behaviour. He did concede that his behaviour “could have been” intimidating.
However, later in his evidence, he acknowledged that he had raised his voice and sworn at Ms Dobbs and that he had “used the F Word” at such times. He denied that she ever cried when they were discussing parenting issues.
In relation to a particular incident described by Ms Dobbs in her affidavit material where she says that he was angry that she had placed the toilet roll on its holder the wrong way round and she had gone to bed that night to find several rolls of toilet paper under her pillow, Mr Duffield denied having placed those rolls of toilet paper there, although he conceded that there had been some “banter” between the parties about the way the toilet roll had been installed. He denied that he raised his voice in those circumstances saying that the conversation was just “banter between loving consensual couples”.
He agreed with counsel that his own father had hit him with a strap as a form of punishment when he was young, and he said that he understood that nowadays that would be considered to be child abuse. He said he had come to that view when in his late teens.
When asked if he had argued with Ms Dobbs about the discipline of the children, Mr Duffield stated that the parties had had different parenting styles, and they had talked as adults about how to incorporate those differences in their parenting of the children. He said that those discussions were “not arguments, just discussions” in his interpretation.
He agreed that Ms Dobbs was totally opposed to any form of physical discipline being used against the children and that he was not so opposed. It was his evidence that he had used physical discipline on more than one occasion, and that Ms Dobbs had never agreed to him smacking X, and that that disagreement had led to arguments between them. He did not seem to notice the contradiction between that statement and his previous evidence.
Mr Duffield agreed with counsel that there had been times when he had smacked X at bath time while X was naked, and that he had smacked him in the bedroom as well.
He denied ever biting or punching X, but conceded that X would “occasionally” cry when he was smacked. He agreed that he had tried to stop X’s bad behaviour while driving but denied that he had tried to hit him while in the car.
Mr Duffield became a little testy as counsel persisted with questions about how he had disciplined X saying that he had only “tapped him on the bottom” and that a disagreement with Ms Dobbs about such things did not make him wrong.
He stated that this case “is all her word against mine” and said he was “flabbergasted” that Ms Dobbs did not have any photographs of injuries sustained by X given her profession as a (occupation omitted).
He denied ever hitting X while Ms Dobbs was holding him, but agreed that X had begun saying “Daddy smacked me” when he was about two years old.
He specifically denied having bent X’s fingers back or hitting him in the car, and indeed his response to every allegation in relation to such events was that the incident had never happened.
He was adamant that he had not been angry while driving that day and that the trip had been just a “normal pleasant drive”. He stated his belief that the situation described by Ms Dobbs was “totally fabricated”.
He gave a similar answer in relation to Mr D’s evidence, saying that “every single bit” of his affidavit is “completely untrue”. He was adamant that the incidents described by Mr D simply never happened.
One piece of that evidence struck me as a little strange. Mr Duffield said, in relation to the allegation that he had backhanded X while he was in the shower in September 2014, that it could not have happened because there was “no way” the maternal grandmother would have been at the house “if I was naked”. That evidence struck me as strange because there had never been any evidence or any suggestion that Mr Duffield had been naked on that occasion and it was difficult to see why he would make such a statement.
It was Mr Duffield’s vehement evidence that he had never left a mark on X’s body and that the only physical discipline he had ever used on him was a “tap on the bottom”. When asked how he knew that he had never left marks on X’s body, he said that he had not hit him hard enough to leave marks. When asked whether X would cry when he hit him Mr Duffield’s answer was, “not because I hit him”. It was his evidence that X would play him off against Ms Dobbs and would cry when he didn’t get his own way.
It was his evidence that he would not need to “tap” the children now, stating that it was no longer necessary because the boys were older.
He said that he understands that if his time with the children is unsupervised there will be times when his parenting style might be challenged, but he said that he would “use anything but physical abuse”.
He was asked whether he had decided never to smack the children again. There was a very long pause before he answered “Yes”.
In relation to allegations of possible sexual abuse of X, Mr Duffield said he had been disgusted by those allegations and that such incidents had definitely never happened. Counsel asked no further questions about that issue.
At the end of his cross-examination by counsel for the mother, Mr Duffield was asked whether he would take on board what various professionals had said during these proceedings about courses he might participate in.
Mr Duffield said that he had already undertaken an anger management course of his own volition, as his former wife thought he might have some anger issues (although I note that that was some 12 years prior to these proceedings). It was his evidence that looking back after that anger management course he understood that he had experienced anger issues in that relationship, but he denied that he has those issues now or that those issues existed in his relationship with Ms Dobbs.
Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Duffield conceded that it was “possible” that he might have bent X’s fingers back during one of their frequent play wrestling games, although he could not recall having done so.
It was his evidence that the first time he had “tapped” X on the bottom it had been in response to X having bitten Ms Dobbs when X was about two years old. Mr Duffield said that in situations where X was being aggressive towards his mother he thought that behaviour warranted physical discipline.
However, he confirmed that if the Court were to make an order for him to have unsupervised time with the children and the children were to misbehave, he would “definitely not” use any form of physical discipline with them. It was his evidence that the children had been compliant with his requests at the Contact Centre, and that he had neither need nor desire to be physically abusive towards the children. He was clear that he understood that other methods of discipline were preferable, saying that he would use methods like Timeout, removing toys from the children, or not allowing them to watch television to teach them that their behaviour had “repercussions”.
It was Mr Duffield’s further evidence that he felt no need to use physical discipline against the children because he had developed one-on-one relationships with them, and because the children had learned to respond to him appropriately.
In response to questions about the text message he had sent Ms Dobbs on 15 October 2016, Mr Duffield agreed with counsel for the Independent Children’s Lawyer that it had been “inappropriate on some levels”. He further agreed that it had been unnecessary for him to send that text and that it indicated that there was still conflict between the parties.
However, when asked what his role had been in the conflict between the parties since separation, Mr Duffield stated that in the context of all the allegations that had been made about his behaviour, and especially the sexual allegations, he had been hurt and he thought his behaviour had been quite reasonable.
When asked about the possibility of attending counselling in the future, Mr Duffield replied, “I’m above that”. He stated that he would do his best to be civil to Ms Dobbs, and that while he had been hurt by her allegations and could not forget them, he would be able to “move forward”. He agreed with counsel that the Court was not concerned with his feelings but with his ability to contain his behaviour.
He was asked what he had specifically learned from the (omitted). Mr Duffield said that he had learned about putting the children in Timeout, about speaking to children “at ground level” and in a calm and slow manner, about sleeping strategies, about rewarding children for their good behaviour, and about how Ms Dobbs and he might communicate more efficiently given their differences in parenting styles. He also said that he had learned that it is important for parents to be “on the same page”. He said that he had learned that while smacking was frowned upon, his parenting style was valid, although it could benefit from some fine tuning.
When counsel asked him what was good about Ms Dobbs as a mother he replied that she was kind, gentle, very patient and loving, and that she knows what is right and wrong in children’s behaviour.
When asked what he thought the impact on X was of the conflict between him and Ms Dobbs, Mr Duffield initially said that he didn’t believe that X was aware of any conflict between his mother and him.
However, when taken to the report from the Contact Centre which quotes X as telling him “you’re not the boss” and that they could do certain activities together “if Mum lets you”, Mr Duffield was able to acknowledge that that indicated that X was indeed aware of the conflict between his parents.
When asked what he would tell the children after the conclusion of these proceedings, Mr Duffield said that he would say that he and Ms Dobbs had had a conversation and that they had agreed to work together as a team so that life would be more fun for everyone.
In re-examination, Mr Duffield said that despite the text message he had sent Ms Dobbs on 16 October 2016, they had been able to have several telephone conversations about parenting issues, and practical issues such as what the children might like for Christmas, and whether he had kept receipts for a broken appliance. Mr Duffield described those conversations as civil and even “delightful”.
The independent experts’ evidence
Dr A
Dr A’s psychiatric assessment report in relation to both parties is annexed to his affidavit sworn 15 March and filed 21 March 2016.
Ms Dobbs reported a history of the relationship consistent with that set out in her affidavit material, and stated that she “did not think Mr Duffield should ever have unsupervised contact, despite presenting well externally. Ms Dobbs worried that X would misbehave, as he had learnt (sic) to do when he wasn’t being watched”.
In relation to her concerns about Mr Duffield having behaved inappropriately with X, Ms Dobbs is reported to have said “I don’t want to say it is sexual abuse, but I don’t know what was happening for Mr Duffield”.
Similarly, Mr Duffield’s history as reported to Dr A is consistent with his affidavit material, although he is reported to have told Dr A that the reason he had separated from his former wife was because he had been “verbally abusive”.
He described Ms Dobbs “to be particularly “calculated” in her decision making and someone who “knows what she wants and will do anything to get it”.”
Mr Duffield is reported to have told Dr A that Ms Dobbs had “built a case” by making false allegations of abuse against him.
Under the heading of “Opinion And Recommendations” Dr A states the following:
8. Mr Duffield suspects that Ms Dobbs deliberately orchestrated the unfolding of proceedings to gain an advantage in gaining custody of the children. This hypothesis is based on his belief that Ms Dobbs has always been measured person, but also given her background in family law. Ms Dobbs has alleged Mr Duffield is an abusive man. He certainly has a history of anger-based problems commensurate with personality issues. How extensive and serious his anger issues were present in the relationship is less clear. Ms Dobbs has alluded to concerns that Mr Duffield inappropriately contacted X. These concerns would appear to be based on spurious claims in the context of an innocuous ‘incident’ following X being bathed. Both parties provided different accounts of this ‘incident’, so this may require further investigation. It is perhaps noteworthy that Ms Dobbs would appear to be possibly a more anxious parent. A request for Mr Duffield and X to bathe wearing underwear would appear to be a curious response. Ms Dobbs did not seem to be overly concerned that Mr Duffield could have been sexually abusive to X.
9. Ms Dobbs lacks confidence that Mr Duffield will not be unreasonably physically punitive and emotionally reactive towards the children in the future in the event he was not supervised. Mr Duffield considers such supervision unnecessary, and such a level of caution a reflection of Ms Dobbs’ anxieties. It seems central to this case that the parties have very different perspectives and thresholds on what can be construed as reasonable parenting practices, both in terms of verbally responding to challenging children behavior (sic), but also employment of any physically punitive measures. […]
10. If there remains concerns (sic) that Mr Duffield has anger issues, as has been highlighted by Ms Dobbs, and partially verified in the Psychological Report from Ms M[2], then presumably further counseling (sic) focusing on anger management may prove fruitful. Ms Dobbs does not present with current signs of mental disorder, but she has experienced mixed problems of depression and anxiety in the past. It is unclear but possible that her concerns regarding the children are excessive, and a reflection of an underlying anxious disposition, so she might benefit from further counseling (sic) to assist in moderating these anxieties, particularly if Mr Duffield is granted unsupervised contact in the future.
[2] Ms M was Mr Duffield’s counsellor for a time and she filed an affidavit in these proceedings to which she annexed a report about that counselling. She was not called as a witness at the final hearing.
Dr A gave evidence by telephone at trial, and under questioning by counsel for the Independent Children’s Lawyer he confirmed that when he referred to Mr Duffield benefiting from counselling, as described in paragraph 10 of his report set out above, he was referring to a dozen or more sessions to be undertaken at least fortnightly during which Mr Duffield might be challenged in a therapeutic setting to address his anger problems and his behaviour. He did not simply mean supportive counselling.
Similarly, Dr A stated that Ms Dobbs might benefit from challenging and supportive therapy which would allow her to address her anxious temperament. He did not wish to put a time frame on that therapy, but said that it should be a substantial process which might be difficult for Ms Dobbs. It was his opinion that Ms Dobbs’ anxieties might remain, even in the face of lived experience where no problems occur during unsupervised time between Mr Duffield and the children.
Under cross-examination by counsel for the father, Dr A clarified that the notes on which he based the statement “He has not used other illicit drugs” simply said “nil else”. Dr A said that he inferred from those notes that he had asked Mr Duffield if he had taken any other illicit drugs and Mr Duffield had answered in the negative.
His evidence was similar in relation to the father’s criminal history. Dr A said that it was his practice to ask whether a litigant has a criminal history and then to ask if there were “anything else” in that context. He said Mr Duffield had not specifically been asked about any other criminal matters, but that he infers from his notes that he had answered in the negative to the question: “Anything else?”. Dr A had therefore not seen any reason to explore that issue further.
In relation to drug use, Dr A stated that he had the clear impression that the father had not used either marijuana or any other illicit drug in the latter stages of his relationship with Ms Dobbs.
That evidence is certainly consistent with that of both Mr Duffield and Ms Dobbs.
In relation to Ms Dobbs’ reported anxiety after X’s birth, Dr A said it was not unusual for new mothers to feel that they may not be able to provide for the children’s needs. However, Ms Dobbs’ anxiety extended to “outside” fears and that he thought that that may have been unrealistic anxiety. It was Dr A’s opinion that Ms Dobbs’ anxiety was “a character trait” rather than “a mental disorder”. He was not prepared to predict whether Ms Dobbs might fall into that category of patients whose anxiety might be assuaged by lived experience of the absence of harm.
It was his further opinion that if the Court were to order unsupervised time between the father and the children, that time should progress in a graduated fashion over a significant period so that Ms Dobbs might have the best opportunity to cope with that situation.
Under cross-examination by counsel for the mother, Dr A said that he had thought that Ms Dobbs’ presentation was authentic and that he had no reason to believe that she was not sincere in her anxiety about the children’s safety in Mr Duffield’s care.
He agreed that if her evidence is based in fact, her anxiety about unsupervised time could certainly be justified. In those circumstances, he agreed that counselling might not assist her anxiety.
When the entirety of Mr Duffield’s criminal record was read to Dr A, he agreed that what Mr Duffield had told him could be seen as misleading.
He agreed further that Mr Duffield had not told him the full extent of his drug use, although he did not think Mr Duffield’s drug use was a significant issue in these proceedings.
Ms V
Ms V is the team leader at the Contact Centre where Mr Duffield has spent supervised time with X and Y since January 2015. A report of the supervised time between 3 January 2015 and 21 May 2016 is annexed to Ms V’s affidavit sworn 7 July and filed 8 July 2016.
When she was informed that the parties had had some recent telephone communication that had not been untoward, and she was asked whether she thought the parties had a capacity to communicate Ms J said:
If the mother’s fear about the unsupervised time is taken away, then she would communicate with the father. She would be interested in children’s welfare. She would want to keep in touch. She would definitely be in communication, provided her fear about supervised – unsupervised time with the father is somehow mitigated.
Ms J agreed with counsel that the only way to mitigate that fear would be for Ms Dobbs to experience the children having unsupervised time with Mr Duffield without anything going awry.
Under cross-examination by counsel for the mother, Ms J said that Ms Dobbs had not presented as someone strategically planning events and having no genuine interest in promoting a relationship between the children and the father.
When shown the father’s text message sent to the mother on 16 October 2016, Ms J said that she thought that message was born of the father’s frustration about not seeing the children outside the Contact Centre, that she did not think he would behave like that all the time or that the parties would never be able to communicate with each other. She agreed however that the communication was inappropriate.
She also agreed that X’s presentation at interview would have to be seen in the context of his having seen his father in a supervised environment for the past 15 months or so – that is, in a safe and protected environment where any fears he might have had about his father had dissipated over time.
Counsel does not seem to have asked Ms J’s opinion as to whether that lack of fear might carry over to an unsupervised environment.
In relation to the verbal abuse to which the father had admitted, Ms J made the point that the father had not alleged that the mother had been “reactive or aggressive”, or that she had thrown things at him or been abusive to him. She noted that it was common for people involved in family law proceedings to allege that any family violence had been mutual.
Ms J conceded that while Ms Dobbs had not initially included any allegations about sexual abuse in her court material, she had told her general practitioner of her concerns during the relationship, and Ms J was aware of Ms Dobbs having insisted that Mr Duffield wear underpants when he bathed with X.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms J was asked, in the context of the mother genuinely believing that the father poses an unacceptable risk to the children, what the long and short term effects might be of the children having supervised or unsupervised time with their father.
Ms J’s response was:
If they continue to have supervised contact as they grow older, they will ask questions. They will know that they – they cannot be with their dad – their father without supervision – there must be something wrong with their father. They will – then they will ask questions as they grow older. Then they will told whatever – that there is emotional, physical, sexual abuse fears. So they will have, in their psyche, that they are children who are sexually abused or at risk of being abused by their dad. So they will have a very negative, dark picture of their dad in their head, which becomes part of their persona too […] as they develop into adults. […] And, again, if they can’t – their reality as they grow older and spending more time with the father is that it’s fun. Dad is good. Dad is nice. That’s their perception. In opposition to – in opposite version of the mother’s ideas about the father. They are not together. That’s not in harmony. It is conflicting, so that is also something they will have to deal with – what is real in their life, whether their dad is a good man or an abuser.
I then asked Ms J to expand on what might happen if the children’s lived experience of the father conflicts with the mother’s sincere view of him, and the following exchange took place:
Ms J: Yes, for ever they are in confusion about who they are, who their father is, and what has happened to them. And it would make it difficult to – who to trust, who not to trust in life.
Her Honour: Yes?
Ms J: And if two most important people in their lives are – give them that … information about their safety and wellbeing, it – they would have whole lot of difficulty in terms of trusting the world as they grow older.
Her Honour: So it’s not just a matter of it affecting their relationship with each parent?
Ms J: Yes.
Her Honour: It actually has a more profound effect than that?
Ms J: It does. Even when they choose their partners and they become parents, there will be these unresolved questions about their own identify (sic in transcript), their – what their dad and mum …
Her Honour: A sort of idea of, “Well, whose son am I?”?
Ms J: Yes. […] “And what kind of parent I had” (and) “My father was a sexual abuser”
Her Honour: Or not?
Ms J: Yes.
Her Honour: Yes?
Ms J: Whatever there will be […] a kind of dilemma about this. And it is quite a heavy kind of – I mean, it may sound one question, but it’s all about their whole, you know, whole life, kind of. So they will have to deal with that forever.
Ms J was not prepared to predict with any precision what might happen if unsupervised time were ordered, but it was her fear that there might be ongoing interruptions to unsupervised time because the mother is anxious about that time proceeding. She was clear that such disruptions to the children’s relationship with their father would have negative consequences for the children.
When asked to consider a scenario where unsupervised time was ordered and the mother did comply with the order, but still retained a genuine belief that the children were at unacceptable risk, Ms J said:
Again, there would be a lot of questions in their mind. They would come home and they see their mother all anxious or they are aware that something bad is supposed to happen to them. When is it going to happen? How is it going to happen? […] Because they also trust their mother. So it is very difficult for the (sic in transcript) to distinguish what is their mother’s real fears, what is actually – may happen, may not happen. So there will be a lot of unanswered questions in their life.
In relation to the mother’s allegations of sexual abuse, Ms J said that the information the mother had given her made no sense to her. She then said:
That’s the reason I’m not sure about whether it’s all her imagination coming out of her depression, anxiety-based. There is some reality was there but it is exaggerated as it happens in separation in this context. It’s just that she’s so enmeshed with the children that she just doesn’t want them – anything away from her, they will be at risk kind of thing.
Ms J said that the impact of that situation on X might be that ultimately he might reject his mother if he comes to his own view that his father is not a danger to him, and that “as a personality developing, X is growing up very confused, perplexed about what happens in his family, not having a free and enjoyable relationship with his mother or father because mother is all anxious and the father may be okay, but he can’t do – can’t spend time with (sic), so he loses out with both of them”.
In relation to her recommendation that the mother undergo counselling to assist her in dealing with anxiety, Ms J said it was very important for that counselling to be professional, and that the counsellor should be prepared to challenge Ms Dobbs about her beliefs. She said:
The difference between your next door neighbour and a professional is that it is not just a friend who listens to everything you say and totally agrees with you. He also – you also ask confronting questions about what – why do you do this? Where, you know – what is the reason for this behaviour? Don’t you think this is wrong or right? So somebody has to confront people who may be caught up in their own, you know, imaginary world. So professional help, supportive as well is confronting, is very necessary for people to change.
I asked Ms J what she thought should happen if I were to find that Mr Duffield had assaulted X during his relationship with Ms Dobbs. Ms J was reluctant to be drawn on that issue, saying quite rightly that it was a matter for the Court, but when pressed she said that in that situation, Mr Duffield ought undergo some “very rigorous training” in relation to physical abuse and children, and that that should go on for some time, perhaps a year. She was clear that “just eight hour course” would not be appropriate. She also said that it would be necessary for Mr Duffield to admit that he had treated X in that way, to apologise for having done so, and to undertake that he would never do so again.
Ms J said that at the end of that period of therapy or training, perhaps he and the mother could meet with a mediator so that he could reassure the mother about what he had learned. Ms J was not totally convinced that the mother was able to be so reassured, but she was clear that the above regime would need to be undertaken by the father if I were to make findings that he had assaulted X.
Findings in relation to the allegations of physical, verbal and emotional abuse
It is not unusual in these cases for an alleged perpetrator of family violence and/or child abuse to emphatically deny all allegations about that behaviour.
In this case, Mr Duffield made such a denial and told the Court that the evidence was a matter of “he said, she said”.
That is not quite true.
The evidence of Ms Dobbs was detailed and particularised in setting out her allegations about Mr Duffield physically abusing X during the relationship.
While she clearly suffers from some anxiety, I found her to be a credible and truthful witness at trial.
Her lack of preparedness to state with certainty a belief that Mr Duffield had sexually abused X only made her emphatic and clear evidence about his physical abuse more credible.
She did not impress as a woman prepared to lie on oath, nor to overly exaggerate particular events.
In addition, the evidence of her father, Mr D, was most persuasive, and all the more so because of evidence that he had, previous to witnessing the events described in his affidavit and at trial, thought his daughter was exaggerating when she told him about Mr Duffield’s behaviour.
I found him too to be a witness of credit and truth, and I accept his evidence in its entirety.
The father, on the other hand, presented as a man concerned to protect his reputation, and as one who either has no insight into the effect of his verbally and physically abusive behaviour on his former partner and/or his son, or as one who is prepared to minimise his behaviour because he well knows it to have been unacceptable.
I find myself unable to find, on the balance of probabilities, that Mr Duffield abused X in any sexual way. The evidence is equivocal and Mr Duffield’s response in terms of his being appalled and disgusted by the suggestion of such abuse had a ring of truth about it.
The onus in relation to those allegations rests with Ms Dobbs and I am not satisfied that she has discharged that onus to the level required.
The situation is very different in relation to the allegations of physical abuse of X.
For the reasons set out above, I am satisfied, on balance, that Mr Duffield did abuse X physically, by smacking him inappropriately and excessively on multiple occasions, by bending his fingers back in the car on 28 September 2014, and by striking him with the back of his hand such that he hit his head on the shower stall in that same month.
I am also satisfied, on the balance of probabilities, that Mr Duffield engaged in serious verbal abuse towards Ms Dobbs and towards X, that abuse being persistent throughout the relationship and having a deleterious effect on Ms Dobbs’ emotional stability which was already fragile.
The question now becomes whether, on the basis of those findings, Mr Duffield poses an unacceptable risk to X and Y if he were to spend extended time with them unsupervised.
The Law
The Family Law Act 1975 (Cth) (“the Act”) does not say how a court should come to a decision about whether a child is at unacceptable risk of abuse from a parent.
That the test is an “unacceptable risk”, as opposed to a “serious risk” or a “realistic risk” or an “appreciable risk” was established by the High Court of Australia in the case of M v M (1988) 166 CLR 69, where the Court said:
To achieve the proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[3]
[3] Although many of the cases in relation to "unacceptable risk" involve allegations of sexual abuse, the question of risk to a child also involves physical and emotional risk and the principles are, if not the same, then very similar, and certainly applicable to the current case.
The High Court did not give any definition of what kind of behaviour might constitute “an unacceptable risk”.
In In the marriage of N and S (1995) 19 Fam LR 837 Fogarty J, sitting on the Full Court of the Family Court, said in a dissenting judgment on the facts of that case:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
[…]
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then ask on which side the balance falls. Rather the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of “unacceptable risk” must be assessed in light of the grave consequences of (sexual) abuse to a child’s development as well as the effects of future contact with the party.
In their joint majority judgment in the same case, Kay and Hilton JJ said the following:
In many cases involving custody and access the court is obliged to experiment. It is only with the passage of time that one can measure whether or not the experiment has been successful. Certainly the child should never be put into a life threatening situation. But in many cases the court is forced to choose between two or more less than satisfactory alternatives, each fraught with risk to the child. Where the court has to weigh up competing risks, such as in this case the risk of allowing access compared with the risk of not allowing access, the court must often, by the very nature entailed in the process, experiment. Providing there is more to be gained from carrying out the experiment than not carrying it out, and providing the possible benefits to the child outweigh the possible detriments, the experiment may well be required to be undertaken to advance the welfare of the child.
In that passage their Honours have stated with precision the dilemma facing the Court in this case.
Conclusion: Issue A
The risk in this case is that in an unsupervised environment, Mr Duffield might repeat the physical discipline/abuse which he visited upon X during the relationship on both X and Y.
Pursuant to Ms J’s evidence, there are significant risks to X and Y’s emotional development if their time with their father continues to be restricted to one-and-a-half hours of supervised time at the Contact Centre.
If Mr Duffield were to use physical discipline on either of the children during an unsupervised visit (and I am conscious, in that context, that X is now seven years old and much better able to express himself than he was during the relationship), Ms Dobbs would no doubt hear about it. In those circumstances, it is likely that she would immediately seek to have orders for supervised time reinstated, there would be a further s.11F consultation and/or Family Report, and if X were to make disclosures of such abuse, Ms Dobbs might be likely to succeed in that application.
In other words, the consequences for Mr Duffield of repeating the mistreatment of X which I have found him to have committed would have very serious and potentially relationship-ending consequences for his relationships with both of his sons.
While Mr Duffield did state to the Court that he had decided he would not physically discipline the children in future, he appeared to have done so not because he actually believed that what he had done was inappropriate, but because he understands that such behaviour is unacceptable to the Court.
The evidence in this case leads the Court to the conclusion that, without a significant period of clinical psychotherapy whose focus is on interrogating the origins of Mr Duffield’s anger, and resolution of those issues, Mr Duffield does pose an unacceptable risk to X and Y.
B. If so, should he spend any time with them and if so, what kind of time?
The Law
An order that a child is to spend time with a parent is a parenting order under s.64B of the Act.
Section 60CA of the Act provides that when a Court is considering making a parenting order, it must take the child’s best interests as its paramount consideration.
Section 60CC then sets out 16 matters that the Court must consider in deciding what Orders might be in a child’s best interests and I will address each of those matters in turn.
Under s.60CC(2) the primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Clearly then, any orders I make for time between the children and their father so that they can have a meaningful relationship with him must also protect them from harm.
Section 60CC(3) then sets out “additional considerations”. They are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Y, who was only two at the time of the Family Report interviews, was too young to express any views about the issues before the Court.
X, who was then five years old, turning six before the second report, told Ms J that he was always happy and excited to see his father. He told Ms J that he wanted to spend time with his father but not overnight.
X’s age means that while his views are to be taken into account, they do not carry a great deal of weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
All the evidence before the court shows that currently X and Y have close and loving relationships with both of their parents and with their maternal grandparents and maternal aunt.
I take into account that their relationship with their father, in relation to which all reports are positive, has been restricted since January 2015 to spending one-and-a-half hours per fortnight with him at a supervised children’s Contact Centre. Therefore, while the relationship is said to be close and appropriate, that relationship has not yet been tested outside those confines.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Ms Dobbs has made all major long-term decisions about the children’s lives since separation, and Mr Duffield complains that he has been excluded from those deliberations.
The children live with Ms Dobbs and have done so since separation.
Mr Duffield’s persistence over several years in seeking orders that he spend time with the children, and in doing so in circumstances where that time has been greatly restricted, shows a commitment to spending time and communicating with the children which is absolutely commendable.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Ms Dobbs supports the children while they are with her with the assistance of child support from Mr Duffield as assessed by the Department of Human Services (Child Support).
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have been significantly separated from their father in terms of both time and distance, and as a consequence they have also been separated from any paternal relatives with whom they might have developed relationships.
There is evidence that the children have missed their father and it is highly likely that their separation from him has caused them some distress despite the findings I have made in relation to the question of risk.
There is no suggestion that they should be separated from their mother, who lives in premises owned by the maternal grandparents.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Mr Duffield lives in (omitted) and Ms Dobbs and the children in (omitted), a distance of just over 200 kilometres.
That distance certainly provides practical difficulty and considerable expense for the children to spend time with their father. At the moment, they spend time with him in (omitted), which is a further 40 kilometres or so from (omitted). It was the mother’s evidence that the journey from (omitted) to (omitted) takes about two-and-a-half to three hours.
It is notable and indeed commendable that Ms Dobbs has made that journey, a five or six hour round trip, every fortnight for more than two years so that the children can spend time with their father at the Contact Centre for one-and-a-half hours.
However, it seems an unusual burden for one parent to have to bear in the long term. In normal circumstances, parents who live that far apart would share the driving.
Of course, the reason for that situation is the supervision requirement as the closest children’s Contact Centre available to the parties is in (omitted).
This issue will need careful consideration in the Orders I make.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that these parents are unable to meet the children’s material needs. They are well fed and clothed and live in secure housing, and X appears to be progressing well at school.
As in many cases coming before this Court, it is in the area of the parents’ capacity to meet the children’s emotional needs that the Court has some concerns.
Both parents gave evidence at trial that they believed that the children were unaware of the conflict that existed between them.
When taken to evidence that contradicted that view, however, both were able to agree that their view had been wrong. That shows some capacity for self-reflection and insight on the part of both parents.
It is possible that Ms Dobbs’ anxiety may lead her to be over-protective of the children, although I have found her to have been telling the truth about the physical abuse perpetrated on X by his father during the relationship. It is her inability to contemplate a future where the children might be safe in his care that concerns the Court, and displays a lack of ability to see beyond her own experience. That cannot be a situation in which the children’s emotional needs are fully met.
For his part, Mr Duffield’s significant verbal and physical abuse of X displays a lack of ability to consider the emotional impact of his behaviour on his older son, and indeed on Y, who has been exposed to such incidents, albeit at a very young age.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
As I have already stated, when X was seen by Ms J he was about six years old. He is now more than a year older than that, and as he grows older he will be even more able to express his feelings and his responses to both parents.
Y is now at about the age X was when his father was abusing him. He is unable to defend himself or, currently, to properly express himself, and while X would be with him during any time spent with the father, it is not X’s job to protect Y.
Neither party impress the Court as being a particularly mature adult.
Ms Dobbs’ anxiety inhibits her ability to see the world with any real degree of flexibility, while Mr Duffield has shown himself unable to admit to and take responsibility for his own behaviour.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence before the Court that the children have any aboriginal heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The evidence before the Court shows that Mr Duffield’s attitude to his children, while he clearly loves them, is that they ought to obey him at all times, and that he has at times reacted violently and entirely inappropriately to instances of disobedience.
The evidence shows that in circumstances where the children do not need to be disciplined, Mr Duffield’s attitude to them is one of love, support and care.
However, his persistence in these proceedings and in attending each fortnight at the Contact Centre has shown an attitude to his responsibilities as X and Y’s father which is laudable. Moreover, the report of the Contact Centre shows a father well able to be patient with the children in that environment which gives the Court some cause for optimism that he may be able to change his behaviour so that he is entirely a protective parent of his children.
Ms Dobbs’ attitude to the children is that they are vulnerable and in need of her protection, which, unless exaggerated and exacerbated by her inherent anxiety, is absolutely appropriate.
The attitude to her responsibilities as a parent is shown in her consistent care of the children since their birth, and indeed, when asked, even Mr Duffield had no bad thing to say about Ms Dobbs as a parent.
(j)any family violence involving the child or a member of the child’s family;
I have found that Mr Duffield has hit X inappropriately, which satisfies the definition not only of child abuse but that of family violence under the Act.
His verbal abuse of Ms Dobbs, both during the relationship and after its breakdown, also satisfies the definition of family violence, and the fact that X and Y were exposed to that abuse also satisfies the definition of child abuse.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Ms Dobbs obtained an Interim Family Violence Intervention Order against Mr Duffield on 24 November 2014 on an ex parte basis.
That application was ultimately resolved by consent without Mr Duffield making any admissions as to the allegations contained in the Application and Summons.
In those circumstances no findings were ever made in the Magistrates’ Court about the allegations contained in Ms Dobbs' Application and Summons for an Intervention Order.
Mr Duffield was charged with one count of breach of that Order and was found guilty without conviction. He provided a 12 month undertaking to the Magistrates’ Court, that undertaking expiring 24 May 2016.
He stated to Ms J that he now behaves around Ms Dobbs as though the Intervention Order were still on foot.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is almost always preferable for orders made after a full trial to be final orders. However, in some circumstances, particularly where a parent has not spent any unsupervised or overnight time with children at the time of trial, there is always the possibility that a change in circumstances might result in further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
It is the clear opinion of the Family Report writer that both X and Y have a positive and loving relationship with their father and that to remove him from their lives entirely would be detrimental to their emotional and psychological development, despite the risk of the children being disciplined inappropriately while in his care.
If the father were to undergo a period of psychotherapy as described above while continuing to spend short periods of time with the children outside the Contact Centre, it is possible that that risk to the children might ameliorate to such an extent that any restriction on his time with them might be lifted.
Conclusion: Issue B
In those circumstances, I propose to make an order that Mr Duffield consult a psychiatrist or clinical psychologist and engage in psychotherapy (as opposed to mere counselling) so that he has the best possible opportunity to explore and resolve his anger and general relationship issues.
While that psychotherapy is progressing, I will make orders for gradually increasing unsupervised daytime contact between Mr Duffield and the children. That time will not include overnight time until he has completed that therapy and provided a report to Ms Dobbs.
Once Mr Duffield provides a report to Ms Dobbs that indicates that he has properly addressed his anger issues, his time with the children can move to overnight, with that time gradually increasing until he is spending alternate weekends and half school holidays with them.
If Ms Dobbs is not satisfied with the psychotherapist’s report, she will need to return the matter to court so that overnight time does not commence.
She should understand, however, that if the report is positive, and there are no new circumstances for the Court to consider, such an application may fail.
Initially, I will order that the changeovers take place at the Anglicare Children’s Contact Centre unless otherwise agreed between the parties in writing, as that is where the children feel comfortable, but eventually, changeover will move to a neutral and independent venue approximately mid-way between the parties’ homes.
C. Should the parties have equal shared parental responsibility for the children or should the mother have sole parental responsibility?
The mother seeks an order that she have sole parental responsibility for X and Y, while the father wishes for the parents to share that responsibility.
The Independent Children’s Lawyer seeks an order for equal shared parental responsibility for the children.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
In this case, not only does the Court have reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence, but I have made positive findings in that regard.
In those circumstances, the presumption does not apply.
Nevertheless, it is open to the Court to make an order for shared parental responsibility if the Court believes that to be in the children’s best interests.
In this case the parents live a long way apart. Their communication is far from optimal, although there is some evidence before the Court that they have been able to conduct civil conversations about the children’s needs on several occasions since separation.
The mother has no trust in the father at all, and can see no time in the future when she might regain that trust.
In those circumstances, I cannot find that it is appropriate for the parties to have equal shared parental responsibility for the children on all issues. As the children live with their mother, and she has their day to day care, I will make an order that she have sole parental responsibility for making decisions about the children’s lives.
However, while she will have the ultimate say, I will make an order that she consult with the children’s father before making any major decisions such as where the children are to live, and what school or schools they are to attend.
Conclusion
Cases involving unacceptable risk to children, especially in circumstances where the environment in which the events occurred which led to that risk no longer exists, are never easy.
In this case, I have decided to give Mr Duffield every possible chance to show that the current unacceptable risk he poses to the children is capable of amelioration if not obliteration.
He stated to Ms J during his interview for the first Family Report that he understood that he would need to “go through the process” and that he would need to be patient if he was to develop a “normal” relationship with his children.
The orders I will make will test his resolve in that regard, and it is to be hoped that he is prepared to persist with psychotherapy and with the gradual increase in his time with X and Y so that he can be a father that his children can look up to as a role model.
I certify that the preceding three hundred and sixty-nine (369) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 21 July 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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