HAWKINS & DUFFY (No.2)

[2020] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWKINS & DUFFY (No.2) [2020] FCCA 1413

Catchwords:
FAMILY LAW – Ruling on application by the respondent mother to transfer matter to the Magellan list.

Legislation:

Evidence Act 1995 (Cth), s.140

Cases cited:

Rice v Asplund (1979) FLC 90-725

Applicant: MR HAWKINS

Respondent: MS DUFFY

File Number: MLC 8389 of 2009

Judgment of: Judge Burchardt

Hearing date: 1 June 2020

Date of Last Submission: 1 June 2020

Delivered at: Dandenong

Delivered on: 1 June 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Mr O'Shannessy SC

Solicitors for the Respondent: Isakow Lawyers

Counsel for the Independent Children's Lawyer: Mr Mort

Solicitors for the Independent Children's Lawyer: White Cleland

ORDERS

1. All previous spend time orders for the Father and the child X born in 2008 be suspended.

2. In lieu thereof, the Father spend time with the child, X born in 2008 to be supervised by Ms B or any other person nominated by the Independent Children’s Lawyer, between 12:00pm and 2:00pm every Saturday in a public place as nominated by the Father.

3. Pursuant to s.39 of the Federal Circuit Court of Australia Act 1999, these proceedings be transferred to the Magellan List at the Melbourne Registry of the Family Court of Australia to be listed on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Hawkins & Duffy (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 8389 of 2009

MR HAWKINS

Applicant

And

MS DUFFY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I will commence by saying what I think must be obvious to everybody.  This is obviously a difficult and distressing matter and I have sympathy for all involved, but most particularly, for X who was born in 2008 and who has now had the misfortune to be involved in litigation over a number of years.  The first issue that arises is the application by the mother to have the matter transferred to the Magellan list which is, in the particular circumstances of the matter, necessarily to an extent interrelated with the question of the Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) objection that the father would wish to take.  The case is that there is a material change in circumstances because the father has been burning X on quite a number of occasions with cigarettes. 

2. These are obviously extreme matters.  On any view of the matter, while there is obviously at least at the present time no determinative conclusion as to whether this assertion is correct or not, it is on any view of the matter a very, very serious set of allegations.  The case is about X’s best interests and it would appear that unless I summarily dismiss the application, it is inevitable that poor X will have to undergo yet further forensic investigation on a number of fronts and this must be surely having some effect upon his wellbeing. 

3. I would observe that the emphasis in the submissions made by senior counsel for the mother as to the possible, as it were, infelicities in the various reports that have been prepared from time to time seem to me to be much less likely to be significant in the longer run.  What will matter will be what the qualified specialists who examine the evidence say.  I observe in passing that the police are not dermatologists.  This is rapidly developing the quality of what one might describe as a cutthroat case.  If it is the case that the father has been torturing – and that would be the right verb – X by cigarette burns, then the conclusion that he not spend time with the father would seem to be very difficult to countermand.  By the same token, if these allegations are not true, then the question of the change of residence must surely be plainly in the forefront of everyone’s minds.

4. I am told and I accept, I think, on what I have been told that this case may go for five days or possibly considerably longer.  I am quite clear in my mind that given that estimate the Magellan list would be a much faster way to progress the matter to conclusion than to keep it in my list.  I am presently listing into March of next year, which is a long way away.  I have made enquiries, as I revealed to the parties, and this matter can be included into the Magellan list in July and although it will doubtless still take time to resolve, it will have all the benefits of the accelerated attention the Magellan list brings. 

5. In my view, despite all the inherent difficulties, I think it is in X’s best interests that this matter be transferred to the Magellan list.  In the face of the mother’s view of the matter, this difficulty is simply not going to go away.  She will continue to contravene.  She will continue not to comply with the extant orders and the problem will just involve constant and further returns to Court.  The mother is plainly not prepared to accept anybody’s opinion that is not the same as her own.  I note that this includes Mr C and myself and, of course, she is entitled to that point of view, but it rather speaks for itself.  This matter needs a final resolution. 

6. As I say, I would be surprised if either Mr Hawkins or the Independent Children’s Lawyer did not seek a change of residence in the event that the mother’s allegations turn out to be unfounded, but those are matters for them.  On any view of the matter, however, I think that the competing considerations suggest that this matter should go to the Magellan list.  As I repeat, it will be quicker, it will be a more complete investigation and it avoids the difficulties of possibly exceeding the five-day limit that this Court informally tends, generally, to apply.  That leaves outstanding the question of interim time.

7. It should be noted that between 2016 to 2019, despite the mother’s ongoing fears, time appears to have progressed relatively unremarkably.  The Independent Children’s Lawyer strongly supports interim time even if supervised and the Court is in the unusual position that the father has present with him today Ms B who in the light of the findings made in 2016 would be seen to be an acceptable supervisor if that were to be ordered.  Counsel for the mother submits that time can only be ordered if the Court accepts that the mother’s allegations are not true.  That is incorrect in my opinion.  The Court makes no finding in these interims, but it does the best it can with the materials that it has. 

8. The following points are relevant. First of all, if I understand the matter correctly, although there is a wealth of evidence as to quite may or may not have occurred, the one paediatric specialist who has expressed an opinion has not supported the mother’s position. Even if I am wrong in that regard, I am quite clear that at least one specialist has come to a conclusion adverse to the mother’s assertions. The child had a good relationship with his father, one might reasonably infer, from 2016 onwards and the mother made no application to suspend time in 2019. Next, the sort of assertions we are dealing with bring into play the operation of section 140 of the Evidence Act 1995 (Cth). If the mother’s assertions are true, the father is so unspeakably cruel that he is torturing his child with cigarettes in circumstances where I would observe in passing he would reasonably foresee that the mother is likely to make an issue about it, one has to take a step back and wonder – without in any sense making a conclusion – whether or not this is likely to truly be so.

9. I furthermore have the strong submission of the Independent Children’s Lawyer that time is appropriate and I agree with that submission which I perhaps partly provoked, but it is difficult to see what work a family report will be able to do if there is no interim time of any sort, bearing in mind that there will be a measure of delay even in the Magellan list.  It is reasonable, in my opinion, to conclude that X should and can see his father supervised by Ms B or any other person approved by the Independent Children’s Lawyer in a public place to avoid any associations with the home that might be disturbing to him between 12:00pm and 2:00pm such public place to be nominated by the father since he is the one who is going to have be there every Saturday.  This order will obviously operate until the matter is in the Magellan list in, presumably, July.  It will, of course, be open to either party to seek to vary that order then.

10. So the orders of the Court I am going to make are to transfer this matter to the Magellan list, to otherwise suspend the father’s time with the child but order in lieu that the child spend time with the father supervised by Ms B in a public place nominated by the father between 12:00pm and 2:00pm every Saturday or by any other person supervising that is approved by the Independent Children’s Lawyer.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 1 June 2020