HUDSON & HOPGOOD

[2018] FamCA 693

FAMILY COURT OF AUSTRALIA

HUDSON & HOPGOOD [2018] FamCA 693

FAMILY LAW – CHIDREN – Best Interests –Where the parties have a history of family violence and dysfunctional behaviour against each other – Where the father’s mental health and narcissistic personality disorder pose an unacceptable risk to the children – Where it is more likely than not that the children have been exposed to criminal activity, family violence and / or inappropriate material by either or both parents – Where it is likely that the children will be exposed to ongoing family violence between their parents should the Court make orders other than them having supervised time with their father –Where it is in the best interests of the children to spend long term supervised time with their father four times per year.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Mr Hudson

RESPONDENT: Ms Hopgood

INDEPENDENT CHILDREN’S LAWYER: Ms Creak

FILE NUMBER: LEC 110 of 2017

DATE DELIVERED: 10 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 - 29 June 2018

REPRESENTATION

FOR THE APPLICANT:	Self-represented
COUNSEL FOR THE RESPONDENT:	Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT: Mr Hudson Denmeade & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Heydons Lawyers & Attorneys

Order

1. The mother have sole parental responsibility for the children X born … 2011 and Y born … 2012 (“the children”).

2. The children live with the mother.

3. The children spend time with the father for a period of two hours no more than once in each three month period, at a time agreed by the parents and failing agreement on the first Saturday of each third month commencing on the first Saturday available, such time to be supervised by an employee of a contact centre agreed to by the parents and failing agreement at the B Contact Centre or if they are unable to assist then at C Contact Centre.

4. For the purposes of the preceding paragraph each parent forthwith undertake any intake sessions and meet any other requirements of the contact centre at which the children are to spend time with the father.

5. The mother ensure that the children attend at times required for them to spend supervised time with the father.

6. Each party pay one half of the costs of the contact centre.

7. In the event the father is incarcerated, the time the children were to spend with him will be suspended until his release and resume at the earliest date agreed and failing agreement on the first Saturday of the first month after his release and continue as provided in paragraph 3 above.

8. The father be at liberty to send a card or gift to the children on their respective birthdays, at Christmas and Easter.

9. Despite the mother having sole parental responsibility, the father be at liberty to obtain from the children’s school, a copy of each child’s school report at the end of each term or semester and a school photograph of each child. Any cost associated with the provision of same shall be met by the father.  

10. Other than as permitted by this Order, the father be restrained and an injunction hereby issue restraining the father from:

    (a)       Directly or indirectly contacting the mother by any means whatsoever;

    (b)       Approaching the mother or the children;

    (c)       Using a third party to contact or approach the mother and/or the children; and

    (d)       Being within 100 metres of the mother’s residence, the children’s school or extra-curricular activities.

11. The injunction referred to in the preceding paragraph remain in force for one year from the date of this Order.

12. The independent children’s lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hudson & Hopgood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 110 of 2017

Mr Hudson

Applicant

And

Ms Hopgood

Respondent

REASONS FOR JUDGMENT

1. Mr Hudson and Ms Hopgood have two children, X aged 7 and Y aged 5. The children live with Ms Hopgood. They have not seen their father since March 2017 apart from the assessment for the family report interviews in December 2017.  

2. Mr Hudson wants to have a relationship with the children and see them regularly. Ms Hopgood opposes the children seeing or communicating with Mr Hudson.

3. For the reasons which follow I propose to make an order that the children spend time with Mr Hudson for two hours four times a year and that the time be supervised at a contact centre. I propose to further order that Mr Hudson be at liberty to send cards and gifts to the children on their birthdays, at Christmas and at Easter and that he be at liberty to obtain school reports and school photos. Finally, Mr Hudson will be restrained from attending at the mother’s residence or the children’s school or coming within 100 metres of the mother or children for one year.

issues

1. The issues relevant to the determination of whether or not X and Y have a relationship with their father have been identified as follows:

   a)Does Mr Hudson pose an unacceptable risk of harm to the children by reason of family violence; exposure of the children to criminal conduct; exposure of the children to inappropriate sexual and other material; or any psychiatric disorder?

   b)Does Mr Hudson have the capacity to provide a safe environment for the children?

   c)Would supervised time between the children and their father ameliorate any identified risks of harm?

   d)Is there a benefit to the children spending time with their father supervised on a long term basis?

   e)Is there a benefit to the children receiving gifts and cards from their father on an occasional basis?  

proposals of each party

1. Mr Hudson proposes that the children spend unsupervised time with him on a graduated basis culminating, after eight weeks, to overnight alternate weekends and an additional two hours on three afternoons per week. He also seeks to spend time with the children during school holidays.

2. Ms Hopgood proposes that the children spend no time with Mr Hudson and that he not be permitted to send gifts and cards. Ms Hopgood also proposes the continuation of an interim injunction restraining Mr Hudson from approaching her or the children. Mr Hudson opposes the continuation of the injunction on the basis that there is no need for it.

3. The independent children’s lawyer recommends that the children spend time with their father on four occasions each year supervised at a contact centre and that he be permitted to send gifts and cards on special occasions. The independent children’s lawyer supports the continuation of the injunction.

Legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[1] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[2]

   [1] See Family Law Act 1975 (Cth) s 65D.

   [2] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]

   [3]Baghti & Baghti [2015] FamCAFC 71.

3. The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

6. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

7. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

8. Section 61DA provides 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

10. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

11. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]

    [4]Banks & Banks (2015) FLC 93-637.

12. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6]

    [5] See M & M (1988) 166 CLR 69 (“M & M”) citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

    [6] See M & M (supra) and see also N and S and the Separate Representative (1996) FLC 92-655.

Background

1. Before applying the legal principles to the facts of this case I set out some background.  

2. Mr Hudson was born in the United Kingdom. He is 49 and unemployed. He has a step son, Mr D aged 24. Mr D’s mother and Mr Hudson were married but separated in 2003. They are not divorced.

3. Ms Hopgood is 47 and unemployed. Ms Hopgood has three other children, Ms E aged 25, F aged 13 and G aged 12. The younger two children live with her and spend time with their father, Mr H.

4. Mr Hudson and Ms Hopgood commenced a relationship in 2009 and separated on a final basis in 2015. Throughout their relationship they each maintained separate homes but Ms Hopgood spent considerable time at Mr Hudson’s home.

5. In March 2010 Mr Hudson was charged with a serious criminal offence, namely the cultivation of a commercial quantity of cannabis.

6. By July of that same year Ms Hopgood and Mr Hudson were expecting their first child together. X was born in 2011. Ms Hopgood and Mr Hudson went on to have another child together, Y, who was born in 2012.

7. On 9 August 2012 Mr Hudson was convicted and sentenced to five years imprisonment.

8. Y was four days old when Mr Hudson commenced his term of imprisonment and X was nineteen months old. Mr Hudson served two and a half years in numerous prisons throughout New South Wales and was released on parole in February 2015. His parole ended in August 2017.

9. In April 2018 Mr Hudson was again charged with cultivating a commercial quantity of cannabis. It is not clear when Mr Hudson will go to trial over those charges but by reference to the previous criminal trial it is not likely to be for some time. Mr Hudson denies the charges.

10. During his prison term from 2012 to 2015 Ms Hopgood took the four children living with her to visit Mr Hudson on about thirteen occasions.

11. Mr Hudson denies all of the heinous allegations made against him by Ms Hopgood in these proceedings, including attempted rape, threats of violence and voyeuristic surveillance of strangers in their showers and contends these allegations were fabricated by Ms Hopgood in response to Mr Hudson commencing a new relationship in 2017.

application of legal principles

Does Mr Hudson pose an unacceptable risk of harm to the children by reason of family violence; exposure of the children to criminal conduct; exposure of the children to inappropriate sexual and other material; and any psychiatric disorder?

Family violence

1. Ms Hopgood alleges that she became aware of Mr Hudson’s violent tendencies shortly after their relationship commenced. She says she observed him hold her son, then aged six, by the ankles and hit his head on the ground. Ms Hopgood says Mr Hudson regularly yelled at her children. In the first year of the relationship Ms Hopgood describes Mr Hudson going into “violent rages if interrupted” while “gaming” (this being a reference to video games). She says that she had to stop him on many occasions from hitting her children. Ms Hopgood describes him yelling and screaming at her children, exposing her children to threats made by him against public servants and also exposing them to pornography which he accessed from his computer. She says that he regularly called her children “idiots” and “brain dead” and that he played no role in parenting the children, even his own.

2. Ms Hopgood says that she would regularly leave Mr Hudson’s home with the children and return to her own home but would be persuaded by him to return.

3. When she was about six months pregnant with Y, Ms Hopgood says Mr Hudson threatened to kill her daughter, F, when she turned up the television. When Ms Hopgood intervened, she says that Mr Hudson grabbed her arm (she was holding X on her hip) and “full-force” punched her in the back of the head six times, until she collapsed on the ground and urinated. Ms Hopgood says her “mastoid bone” was black and blue and she thought she might lose the baby. When she said she was going to the police, Mr Hudson allegedly said “I will bury you if you do”.

4. About a week after this incident, Ms Hopgood says she found footage on Mr Hudson’s computer of “ordinary people in their houses taking showers”. She assumed that Mr Hudson had been filming people after secretly installing “pin-hole type micro-cameras”. Ms Hopgood claims to have found a drawer full of such devices. She telephoned Mr Hudson and told him what she had found. She says that she only managed to copy one of the video recordings before Mr Hudson returned to the house. Exhibit 19 to the mother’s trial affidavit is said to corroborate her allegation. In a brief video recording which is mostly black screen it appears that the recording may have been made while outside a residence looking into a room. For a brief moment the bottom half of a pair of legs are visible. A noise, possibly running water, can be heard for another brief moment.

5. Mr Hudson denies all knowledge of the video recording and its content.

6. After Mr Hudson returned to his home there was an altercation about what Ms Hopgood says she found and she says that Mr Hudson was infuriated, dragged her to the kitchen, got a knife out, held her down and said “I will cut out your tongue if you tell anyone”.

7. She says that two weeks after this incident she went into premature labour (eight weeks early). Ms Hopgood says that Mr Hudson was asked to leave the hospital because he was yelling at her.

8. If the events occurred as claimed it might be expected that hospital records could confirm:

   a)Bruising to her in the region of her mastoid bone;

   b)Premature labour;

   c)Mr Hudson being asked to leave the hospital because of his conduct.

9. No records are produced from the hospital nor any explanation for their absence.

The recorded incident

1. Mr Hudson received a copy of an audio recording (allegedly found by Ms Hopgood shortly before the commencement of the trial), either on the morning of the trial or in the days leading up to it. When it was first played in court it was impossible to understand what was being said apart from the often repeated expletive “fuck” used by both parties. Initially when cross-examined about the recording, Mr Hudson was confident it related to an incident in 2017 involving Ms Hopgood threatening to disseminate a sexually explicit video recording of himself and a then girlfriend. Later in the trial when an agreed transcript of the recording was tendered as part of exhibit 4 and a better quality of the recording played, Mr Hudson said it related to an incident in 2012 when Ms Hopgood was pregnant with Y and he was angry with her as she had found a video recording of himself and a girlfriend, Ms J, that he had hidden in a light fitting some years beforehand and the altercation occurred after he says Ms Hopgood found the video recording while cleaning the light fitting.

2. As noted, the recording was played in court and over about six minutes the parties exchanged various insults and expletives in what was clearly a heated argument. The timing of the incident appears to roughly correlate with the account given by Ms Hopgood about Mr Hudson’s return to the home after she told him she had found the allegedly voyeuristic recordings.   

3. It is apparent that the recording relates to only part of a longer argument. On review of the recording it appears to corroborate a physical assault by Mr Hudson upon Ms Hopgood. The recording commences with Mr Hudson saying – “try to push me in the bollocks and I’ll fucking rip your head right off”. Ms Hopgood responds – “Get off me”. Shortly thereafter Mr Hudson says “I don’t care if you can’t breathe”.

4. Mr Hudson is clearly irate during the recording, as is Ms Hopgood. Mr Hudson says at one point – “So you want to drag me down with fucking new evidence”. It seems unlikely that Mr Hudson is referring to a recording of himself and a former girlfriend. It seems more likely that the video was of a voyeuristic nature given his comments during the argument and the content of exhibit 19 (despite its poor quality). Mr Hudson was still on bail awaiting trial in relation to the drug charges so it seems more credible that the recording was of something more sinister than a consensual recording as suggested by Mr Hudson. However, given the poor quality of exhibit 19 it is not possible to make any definitive finding about its content.

1. During the recording of the argument between Ms Hopgood and Mr Hudson, Ms Hopgood refers to Mr Hudson as a “piece of shit” and “scum” who does not deserve to see his children.

2. Perplexingly, Ms Hopgood takes a telephone call from her former partner, Ms H, in the midst of the argument. She engages with him in a calm, chatty manner. In her evidence during the trial Ms Hopgood describes Ms H as a person to whom she confides and with whom she has a positive relationship. Ms Hopgood says that she was in a state of shock at the time of the phone call and that is why she did not tell Ms H about what was then occurring. She says that in the recording one can detect her distress by her heavy breathing. I have reviewed the recording and I remain of the view that Ms Hopgood was calm and chatty and there was nothing to indicate distress during her conversation with Ms H.

3. Ms Hopgood did not seek medical attention after the incident, claiming during the trial that she was trained as a “doula” which enabled her to tell that her baby was fine.

4. The argument between Mr Hudson and Ms Hopgood repeatedly escalates and then calms down. In my view this may reflect that such altercations were not unusual within the relationship. F would have been 7, G 6 and X a baby. It seems more likely than not that the children would have been exposed to violent exchanges of the kind evidenced by the recording (exhibit 4).

After Mr Hudson went to prison

1. Ms Hopgood says that after Mr Hudson went to prison she did some online research to understand why she stayed in the relationship for so long. She undertook online counselling for victims of abuse.

2. Despite her new found understanding of the nature of her relationship with Mr Hudson she nevertheless took all four children to visit Mr Hudson in prison on numerous occasions. On her own evidence this involved some hardship including driving up to twelve hours and expenditure of $10,000. Mr Hudson was moved between a number prisons in NSW. One might have thought this was the perfect time to distance herself from Mr Hudson although the nature of the relationship may have precluded this at the time. Ms Hopgood and the children lived in her home for most of Mr Hudson’s time in gaol. They returned to live in Mr Hudson’s’ house some months prior to his release in February 2015 and Ms Hopgood put a “lodger” in her home about a month before his release. There is no evidence the lodger had a tenancy agreement that precluded Ms Hopgood returning to live in her home.

After Mr Hudson’s release from prison

1. After Mr Hudson’s release from prison in February 2015 Ms Hopgood describes odd behaviour by Mr Hudson. He was hardly at home and spent nights out on the property or a neighbouring property owned by his friend, Mr K. According to Ms Hopgood, Mr Hudson was using a digger at odd times of the night until his friend, Mr K, was arrested for possession of firearms. She also says Mr Hudson moved a heroin addict into the house against her wishes.

2. In May 2015 Ms Hopgood told Mr Hudson she intended to separate from him. She did not leave his home though until at least October 2015 (Mr Hudson says it was December 2015). Ms Hopgood says she remained with Mr Hudson because her daughter was in a choir competition at her current school and a move to her own home would involve a change of school. That seems a rather feeble reason to stay, if the relationship and circumstances were as described by Ms Hopgood.

3. During the period May to October 2015, Ms Hopgood says Mr Hudson continued to act oddly and was gone for most of each night collecting items from Council clean-ups. At other times he pestered her when she was having a shower despite her protests that he leave her alone. Ms Hopgood says Mr Hudson filmed her in the shower against her wishes. She says that Mr Hudson had previously admitted to her that he spied on people in showers. These allegations are denied by Mr Hudson.   

4. In or around September/October 2015 Ms Hopgood says she told Mr Hudson she was leaving his property because it had become a dangerous place for children. She says he said – “you’re not leaving with my boys, they’re mine. They belong to me. If you take them from this property I will bury you. I will absolutely bury you”. She told him that she would not be far away, only fifty minutes. On that same day Ms Hopgood alleges that Mr Hudson threw her on the floor and pinned her down with his knees and tried to rape her. She says that X came into the room and started kicking Mr Hudson. Mr Hudson threw X aside. X jumped up and threatened to smash the television. Mr Hudson immediately got off Ms Hopgood and said to X “I will kill you”.

5. When family consultant, Ms L, interviewed X on 18 July 2017 she says that X gave an account of an event, which appeared to be his own experience, where he intervened in an altercation in an attempt to protect his mother from his father. This fortifies my view that exposure to violent altercations between Mr Hudson and Ms Hopgood was not unusual for the children. 

6. On a further occasion after separation but before Ms Hopgood and the children left Mr Hudson’s home Ms Hopgood says that she awoke to find Mr Hudson trying to pull her jeans off. Mr Hudson said to her “remember if you put me in jail I will kill you as soon as I get out or I’ll get you buried while I’m in jail”.

7. After her daughter’s choir competition Ms Hopgood says she told Mr Hudson she was leaving and again he threatened to bury her if she took the boys. She says that when her daughter said to Mr Hudson that the boys were coming, he “ran over to her, grabbed her around the throat and lifted her two feet off the ground”.  Ms Hopgood says that she called F’s father, Mr H, and told him what had occurred. She says Ms H was furious but decided against calling the police because he was worried what Mr Hudson might do to Ms Hopgood and the children.  Ms H came to collect Ms Hopgood and the children that same day.

8. Ms H was not a witness in the mother’s case. No explanation was provided for his absence. If F was grabbed around the throat by Mr Hudson it would seem likely that there would be some Mr Ks on her and that this would have been deposed to in an affidavit.

After Ms Hopgood and the children left Mr Hudson’s home after separation

1. Ms Hopgood sent Mr Hudson numerous unsolicited text messages in the period November 2016 to 4 February 2017. The texts are chatty and request Mr Hudson to do things for her or to visit her and the children at her home. The messages and texts leave the impression that the parents were communicating in a fairly positive manner about their children, in particular.

2. During the same period Ms Hopgood made numerous unsolicited calls to Mr Hudson but left no message. Sometimes there are several calls per day. For instance on 21 November 2016 Ms Hopgood made at least five calls to Mr Hudson’s phone, the earliest being 9.59am and the latest being 9.34pm.

3. Ms Hopgood’s admissions about her communication with Mr Hudson after separation are at odds with her allegedly being fearful of him. On many occasions, she instigated communication and persistently so. I reject her evidence that the communications related solely to the children or reflected her wish to control Mr Hudson’s time with the children in a safe environment at her home.

4. Ms Hopgood’s own evidence demonstrates her ability to control Mr Hudson at times e.g. by putting limitations on the time he spent with the children or refusing it all together. On one occasion she let him know that she had the power to have him sent back to prison.

5. Additionally, Ms Hopgood had other options than to stay with an allegedly overbearing and violent man. She owned her own home. She had a supportive former partner in whom she confided. Mr Hudson was in prison for two and a half years so she had ample opportunity to leave him. Not only did she not leave but she actively supported him in prison despite the financial and emotional hardship that caused to her.  Even after she told Mr Hudson she was separating from him she remained in his home. He was absent for most of each day and night so there was ample opportunity to leave. The totality of her actions do not support her living in fear of him.

6. When she finally left with the assistance of Ms H there is no suggestion of any violent outburst from Mr Hudson. In fact, Ms Hopgood says she did not hear from Mr Hudson for weeks. She then accepted his invitation to go shopping with him for Christmas presents. A further several weeks went by without any contact from Mr Hudson. In January 2016 Ms Hopgood took the children to Mr Hudson’s home to see the paternal grandmother who was visiting from the United Kingdom. 

7. The parties give different accounts of the frequency and nature of Mr Hudson’s time with the children. Ms Hopgood says it was mostly sporadic although there were times when he visited regularly for brief periods and a handful of occasions when the children went somewhere with him. Mr Hudson says he regularly and consistently spent time with the children and it was only after he said he wanted more time and commenced proceedings that Ms Hopgood stopped him seeing the children.

8. One week before Christmas 2016 Ms Hopgood says that Mr Hudson came to her home and made lewd suggestions to her while grabbing her arm and attempting to put his hand up her skirt. She told him to leave and he did.

9. On 25 February 2018 at 8.30pm Ms Hopgood attended upon the local police station to make a series of allegations against Mr Hudson. The police records which form part of exhibit 2 note that Ms Hopgood inaccurately informed them of the existence of a prior apprehended violence order. No such order existed on the police system. Ms Hopgood complained of being “bullied, threatened and starved” during her relationship with Mr Hudson. She told police that at one point in her relationship Mr Hudson put a knife to her throat and had attempted to sexually assault her. Police note that it was difficult to obtain clarification about the allegations as Ms Hopgood was “very caught up in venting” about Mr Hudson. The alleged incidents happened “almost six years ago”. Ms Hopgood refused to provide a statement about the allegations. Despite repeatedly stating that she feared Mr Hudson, Ms Hopgood was unable to state to police why that was the case. The police held no fears for Ms Hopgood’s safety.

Exposure of children to criminal conduct

1. Ms Hopgood says that Mr Hudson told her very early in their relationship of his criminal exploits from a young age. She says that he boasted about it. She says that his father also boasted about criminal activity. Ms Hopgood says that within the first twelve months of her relationship with Mr Hudson she noticed his secretive behaviour and keeping of very odd hours.

2. In 2010 Mr Hudson was engaged in illegal activity on his isolated rural acreage. At the time of execution of the police warrant, Ms Hopgood and Mr Hudson were both present as was an unnamed child. Ms Hopgood had two young children at the time. It seems likely that at least one of them was present.

3. The description of the police attendance at the property in 2010 and the location of various items of equipment used in Mr Hudson’s criminal activity, suggest it as unlikely that Ms Hopgood was unaware of the criminal activities engaged in by Mr Hudson, although I note that she was not charged as an accomplice. Ms Hopgood pleaded guilty to possession of a small quantity of cannabis.

4. Mr Hudson has been imprisoned for serious drug offences. His cultivation of commercial quantities of cannabis involved an elaborate operation in which he buried large containers and established an underground hydroponic drug cultivation facility. The operation of such an establishment would necessarily involve Mr Hudson being in association with other criminals, e.g. when selling his crop. Mr Hudson had surveillance cameras inside and outside his home. The evidence contained in exhibit 2 at page 12 suggests that it is likely that Mr Hudson had been growing and supplying cannabis prior to the discovery by police of his 2010 crop (leading to the charges for which he was imprisoned). The police noted the presence of various expensive chattels indicating the likelihood that the items were purchased with funds sourced from criminal activity. Exhibit 2 page 12 also indicates that Mr Hudson was not averse to lying when initially questioned by police.

5. Mr Hudson has now been charged with a similar offence. He denies the charges and is yet to be dealt with in the criminal courts.  He is subject to strict bail conditions including reporting to police three times each week.

6. During the court process for the 2010 offences Mr Hudson was assessed by a psychiatrist. Mr Hudson admits he told Dr M that he had stopped using marijuana some months prior to the interview. This is at odds with his sworn evidence in these proceedings where he says – “I do not use drugs and have not done so ever”. Mr Hudson says he “misled” Dr M in order to obtain some perceived advantage in the criminal proceedings. Dr M recommended that Mr Hudson undergo a drug rehabilitation program and he did so.

7. I do not accept Mr Hudson’s denial of using drugs in the past. I consider it more probable than not that a person in Mr Hudson’s position would also have been a user of drugs as he himself told Dr M in 2010. As noted Ms Hopgood pleaded guilty to possession of cannabis in 2010.  

8. In December 2016 Ms Hopgood says that Mr Hudson turned up at her home to say hello to the children but then produced a “huge wad of money” and stated that he had “just sold two pounds”. Mr Hudson gave X and Y fifty dollars each. Mr Hudson denies saying he had sold two pounds but admits giving each child, then aged 6 and 4, a fifty dollar note. Mr Hudson said he gave it to the children because if he gave it to Ms Hopgood it may not be spent on them. Absurdly he said that a 4 year old would be able to ensure the money was spent on him. 

9. Ms Hopgood says that at the end of 2016 she saw Mr Hudson remove four large bags of cannabis from his car and wanted to store it under her house. She refused and made him take the cannabis with him.

10. G, then aged 10, told Ms Hopgood that Mr Hudson had said to him that he (Mr Hudson) had $20,000 worth of cannabis but his mother (Ms Hopgood) would not let him store it under her house.  

11. I consider it more likely than not that Ms Hopgood’s children have been exposed to criminal activity by both parents. Given his past behaviour and his personality disorder (which is discussed below) it is more likely than not that Mr Hudson would see nothing wrong with exposing the children to criminal activity and that he has done so in more recent times.

Exposure of the children to inappropriate sexual and other material

1. Ms Hopgood says she was concerned about Mr Hudson’s interest in pornography from the commencement of her relationship with him. She recounts one story of walking in on him in mid-2010 without his pants on, asleep in front of the television. She had her children with her. She says she and Mr Hudson argued about it. 

2. Ms Hopgood says that Mr Hudson told X he had handcuffs at his home and that he used them when he had sex with men. X had just turned six at the time. Mr Hudson denies the allegation.

Father’s mental health

1. As mentioned above, Mr Hudson saw Dr M, psychiatrist, for an assessment in 2010 in relation to the criminal proceedings. Dr M had seen Mr Hudson on a number of occasions since his first referral in 2003. The earlier consultations seem to have been related, at least in part, to his eligibility to receive social security benefits.

2. Mr Hudson admitted to Dr M that he had been a drug user and on that basis was referred to a drug rehabilitation facility. As already noted, Mr Hudson now denies ever using drugs. Mr Hudson told Dr M that Ms Hopgood knew nothing about his drug cultivation operation. He now says the opposite. Ms Hopgood denies any knowledge of his activities but, as already noted, given their scale, I consider it highly unlikely that she was ignorant of his activities.

3. Mr Hudson also admitted to Dr M that he could become aggressive and said he felt his “brain was going at a hundred miles an hour”.  Dr M noted in his report a history of non-compliant and aggressive behaviour when Mr Hudson “became embroiled in an altercation with a police officer” when he received a fine.

4. Mr Hudson led Dr M to believe he was illiterate. He is not, although his literacy skills are not high. Dr M describes an occasion in 2005 when Mr Hudson attended for an interview with him “shirtless and in bare feet. He told me on that occasion that he had had another confrontation with Centrelink, who had reduced his payments “I could have killed him”. This information provides a degree of corroboration for Ms Hopgood’s evidence that Mr Hudson exposed her children to his threats against public servants.

5. When Mr Hudson attended Dr M’s rooms in 2010 he was found crouched in the waiting room. After disclosing that he had been caught growing cannabis he then became “jocular and made light of his predicament”.

6. Dr M opined that Mr Hudson may have Asperger’s Syndrome but noted the presence of features of a histrionic personality disorder.  

7. On 29 August 2017 Mr Hudson attended upon a psychologist, Ms N. During her psychological assessment, Ms N noted the father’s scores on the self-report depression scale indicated severe depression. Her file was closed when Mr Hudson failed to attend his follow up appointments.

8. Dr O, clinical psychologist, prepared a psychological assessment of the parents and a family report after interviews in November 2017. Dr O had the benefit of reviewing a large body of collateral material including Dr M’s assessment of Mr Hudson in 2010. She also administered various psychometric tests and, of course, had the advantage of personal observation of Mr Hudson during her interview with him and with his children.

9. When he was interviewed by Dr O, Mr Hudson minimised his criminal activity describing his 2012 incarceration as relating to him wanting to raise a little bit of extra cash. I note that police discovered hundreds of mature cannabis plants when his property was searched in 2010 with an estimated street value of over $1,000,000. As the head sentence of five years’ incarceration demonstrates, under no stretch of the imagination could Mr Hudson’s activities be described as minor.

10. Mr Hudson has expressed no remorse for his criminal activities.

11. In the psychometric assessments administered by Dr O in November 2017 she noted that his results accorded with her own observations of him as lacking insight and presenting as “controlling, egotistical and judgemental”.  His results also indicated “impaired empathy, compulsiveness and rigidity, poor sense of identity, unusual ideas and beliefs, and inflated self-esteem”.

12. Dr O opines that Mr Hudson suffers from a narcissistic personality disorder with a “pervasive pattern of grandiosity and lack of empathy over many years”. She opines that he is “interpersonally exploitive”, “lacks empathy” and “shows arrogant and egotistical behaviours and attitudes”. Dr O is of the view that “poor vocational functioning is often associated with this disorder, since ‘failure’ and comparisons may result if placed in a real work situation”. Mr Hudson has a very poor work history yet described himself to Ms O as having an “exceptional ability and skill in electronics and mechanics, being able to dismantle, repair and set up complex systems and circuits”. Contrary to this claim of extraordinary skill I note that when the police raided Mr Hudson’s property in 2010 they found an “extremely dangerous” set up viz. - “Live electrical mains wires had been split and were running through the metal structure of the shed. The Investigator stated that any movement of the wire could cause the entire shed structure to become “live”. 

13. During Mr Hudson’s cross-examination of Dr O, she explained that a narcissistic personality disorder involves in part a – “… lack of ability to both recognise and acknowledge your own personal shortcomings. There’s a tendency to always justify your behaviours and minimise your misbehaviours. And a tendency to blame others and … put responsibility onto others to try to explain away your own actions”.

1. According to Dr O, Mr Hudson’s motivation for treatment is assessed as very low as he sees no need to change his behaviour.

Conclusion about whether or not the father poses an unacceptable risk

1. In this case I was unimpressed with either party’s ability to provide reliable evidence.

2. To some extent, I was assisted in the task of determining where the truth lies by the recording (exhibit 4) which both parties agree reflects an altercation while Ms Hopgood was pregnant with Y in 2012. The recording reflects a relationship that is extremely dysfunctional. Each party engaged in conduct falling within the definition of family violence in s 4AB of the Act and included:

   ·    As regards Mr Hudson: an assault of Ms Hopgood and repeated derogatory taunts; and

   ·    As regards Ms Hopgood: an attempted assault of Mr Hudson and repeated derogatory taunts.

3. Both parents are more likely than not to have exposed the children to family violence. As noted above, the recording (exhibit 4) reflects that such interaction would not have been unusual.

4. The parents do not currently have any contact. There is an interim injunction in force which prohibits Mr Hudson from contacting the mother or children or attending within 100 metres of their home or the children’s school.

5. As long as the parents remain apart and do not have contact I do not consider that Mr Hudson poses an unacceptable risk of exposing the children to family violence.

6. Having made a finding that both parents have engaged in family violence, and that there is a risk of the children being exposed to family violence if the parents come into contact, I do not consider it necessary to make other specific findings in relation to the remaining allegations of violence made against Mr Hudson.

7. The most troublesome feature of this case is the father’s mental health. I accept Dr O’s opinion that Mr Hudson has a narcissistic personality disorder which has impacted on his functioning for years. He has never been able to hold down a job. He is impulsive and risk averse. He has manic periods and is prone to aggression at times. He lacks judgment. He has been involved in criminal activity which he minimises. He is unable to accept responsibility for his actions. He lacks empathy and insight. He is unable to change.

8. Accordingly, I come to the conclusion that the risk to the children spending time with Mr Hudson is unacceptable.

Does Mr Hudson have the capacity to provide a safe environment for the children?

1. Obviously my findings in relation to Mr Hudson’s mental health are also relevant here.

2. Additionally, Ms Hopgood describes Mr Hudson taking the children on quad bikes on his property during the period May to October 2015 in circumstances where he drove too fast or near steep embankments putting them at risk. She says that on one occasion he put Y, then aged two and a half on a motorbike and he suffered second degree burns from putting his foot on the exhaust. Mr Hudson concedes that Y suffered a burn but says it occurred when Ms Hopgood intervened unnecessarily and removed Y from the bike. Mr Hudson maintains that the child (at two and a half) was not at risk of injury when sitting on the motorbike.

3. On an occasion after separation Mr Hudson took X and Y on his electric skateboard, without helmets, on the road. The police stopped him and told him to get off the road. Mr Hudson admits this incident but says he was not going fast and there was no danger to the children.

4. In my view, these incidents are examples of the impact of Mr Hudson’s personality disorder on his parenting. He is risk averse. He blames others and is unable to accept responsibility. He lacks judgement. Mr Hudson does not have the capacity to provide a safe environment for the children.

Would supervised time between the children and their father ameliorate any identified risks of harm?

1. The independent children’s lawyer proposes that the children spend time with their father in a supervised setting at a contact centre. I consider that supervision in those circumstances would provide adequate protection for the children.

Is there a benefit to the children spending time with their father supervised on a long term basis?

1. The children do not have a close relationship with their father having seen so little of him. Y was only a few days old when Mr Hudson was sent to prison in 2012 and saw him infrequently until his release in February 2015. X and Y have lived in the same household as their father for only several months and have not spent any time with him since March 2017, apart from the family report interview in November 2017.

2. Dr O opined that there is a higher risk of children developing emotional disturbance and behavioural problems if they are alienated from their father. She said there was a risk of lower self-esteem, a lower sense of trust, having poor attachments, increased personal problems and poor social adjustment. Children may feel a sense of abandonment.

3. Understandably, Dr O found it difficult to predict the impact on these particular children but noted that they have a very close relationship with their mother and a limited attachment to their father. Dr O said that despite their limited attachment to their father they did have “memories of time with their father and their father being fun and very generous with them”. If they have no contact with him they may create a fantasy about him.  In her view “not knowing is often more difficult than having a known entity”.

4. Overall, it was Dr O’s view that on balance it would be better for the children to spend some supervised time with their father. The quality of the time spent was more important than the quantity in her opinion. Three or four times a year would provide the necessary connection without it becoming onerous on the children or the mother.

5. In Dr O’s view the mother would cope with such an arrangement although she may not like it. She stressed the importance of the time spent being a positive experience. Dr O did not support the children’s time occurring if Mr Hudson were again incarcerated and suggested it should be suspended in those circumstances.

6. I accept and adopt Dr O’s opinions.

Is there a benefit to the children receiving gifts and cards from their father on an occasional basis?  

1. While no particular submissions were made on this issue I consider there is some benefit to the children receiving gifts and cards on special occasions. It is likely to cement in the children’s minds that their father loves them and is thinking about them.

other matters

1. This is a case where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that a parent has engaged in family violence. There is therefore no need to consider the children spending equal time or substantial and significant time with Mr Hudson.  

2. Ms Hopgood submits that the interim injunction restraining Mr Hudson contacting her or the children should remain in force indefinitely. Ms Hopgood contends that she is frightened of Mr Hudson and has been the victim of family violence in the past. I am not persuaded that Ms Hopgood is fearful of Mr Hudson. Her conduct after separation is at odds with such a proposition. An assessment was made by police earlier this year that Ms Hopgood was not in need of protection from Mr Hudson.

3. However, the parents have demonstrated a capacity to engage in dysfunctional behaviour in front of the children. As Mr Hudson is likely to be disappointed with the decision to restrict his time with the children I consider there may be a heightened risk of Mr Hudson acting out in some way (given his personality disorder) at least until he has time to come to terms with the order. Mr Hudson submitted that he would accept any opportunity to spend time with his children. Other than indicating his opposition to the injunction, Mr Hudson did not make any submission that he would be prejudiced in any way by its continuation.

4. I consider it appropriate to continue the existing injunction for one year by which time I consider Mr Hudson’s acceptance of the order is likely and the risk of him acting out reduced.

Conclusion

1. I have come to the conclusion that there is an unacceptable risk of harm to the children from spending unsupervised time with Mr Hudson.  I have come to this conclusion primarily because of Mr Hudson’s mental health and the risk this poses to the children. Mr Hudson suffers from a narcissistic personality disorder which has had a significant impact on his functioning and relationships throughout his life. He has had difficulty obtaining and retaining employment. He has been incarcerated for serious drug offences. He has no impulse control and a grandiose opinion of his own importance and abilities. He is risk averse and lacks judgement.

2. Additionally, the parents have a history of engaging in family violence against each other and if the children were to have anything other than supervised time with their father there is an unacceptable risk of the children being exposed to family violence between their parents at changeovers or by reason of the necessary exchanges between the parents that would come with frequent unsupervised time.  

3. I have nevertheless determined that it is in the best interests of the children to spend long term supervised time with their father at a contact centre four times a year. This will enable the children to retain a connection with their father.

4. If the father is incarcerated in the future the supervised time should be suspended but recommence under the same terms upon his release.

I certify that the preceding one-hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 September 2018.

Associate: 

Date:  10.09.18