HUGHES & HUGHES

[2015] FCCA 614

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUGHES & HUGHES [2015] FCCA 614

Catchwords:
FAMILY LAW – Interim hearing – allegations of abuse of a child – assessment of risk – brief hearing convened – allegations denied – previous parenting arrangements reinstated.

Legislation:  

Family Law Act 1975

Applicant: MS HUGHES

Respondent: MR HUGHES

File Number: ADC 2768 of 2012

Judgment of: Judge Brown

Hearing date: 30 January 2015

Date of Last Submission: 30 January 2015

Delivered at: Adelaide

Delivered on: 30 January 2015

REPRESENTATION

Counsel for the Applicant: Ms Bosko

Solicitors for the Applicant: All Family Law

Counsel for the Respondent: Mr Fowler

Solicitors for the Respondent: Jordan & Fowler

ORDERS

1. All interim applications are dismissed.

2. Week one as set out in the orders of 8 July 2013 resumes today at 3:00pm.

3. Further consideration of the matter is adjourned to 30 March 2015 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Hughes & Hughes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 2768 of 2012

MS HUGHES

Applicant

And

MR HUGHES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy of the subject matter of the hearing and the fact that the matter is proceeding further, it is appropriate that the reasons be transcribed.

2. In the transcript, grammatical errors and infelicities of expression have been corrected and an attempt made to make the orally delivered reasons amenable to being read.

3. This morning, I have to deal with an application in which Ms Hughes is the applicant and Mr Hughes is the respondent.  The parties are the parents of two children.  They are firstly, X, who was born on (omitted) 2007 and secondly Y, born on (omitted) 2009.

4. Ms Hughes commenced these proceedings on 6 January 2015.  At her request they were listed urgently today, 30 January 2015.  It is her case that the two children concerned are at risk of harm, whilst in the care of their father. 

5. The reason there has been some delay between the filing and the listing of the matter was in order for Mr Hughes to respond to allegations made against him.  Mr Hughes, on 28 January 2015, has filed a response and an affidavit, in which he denies the gravamen of the allegations made against him.

6. In addition to her application and affidavit, Ms Hughes has filed a document which is called a Notice of Risk.  Because of the significance the Family Law Act 1975 places on protecting children from being exposed to abuse, where in proceedings before the court a person has alleged that a child has been neglected, abused or exposed to family violence, it is mandated by the rules and the legislation, that a Notice of Risk form be filed. 

7. The purpose of the Notice of Risk, is, in effect, in cases where there are serious concerns about a child or children for the person who holds those concerns to put up a flag in order to alert people in my position and, indeed, others including Families SA that there is danger or concern about children, which needs to be examined.  The aim of the notice is that the concerns can be expressed succinctly, so that they are not lost or overlooked in complex affidavit material.

8. In this matter, Ms Hughes has said that there is abuse concerning the children concerned.  On the Notice of Risk the abuse is categorised as follows:  father dragged child by legs in disciplining children, and caused carpet burn along spine; father kicked child in thigh causing bruising and pain.  It is further alleged that the father has a history of violence.  In this context, Ms Hughes alleges physical assault which she and asserts has been reported to the police and a medical practitioner.

9. As of consequence of these matters, Ms Hughes alleges that the children in these proceedings are at a serious risk of harm because a party to the proceedings suffers mental ill-health, which renders the children at risk of suffering neglect or abuse. 

10. So the Notice of Risk is a significant document, which requires me to make some sort of assessment of the risk or danger that arises to X and Y from interacting with their father and put in place any necessary measures which are commensurate with my assessment of any such risk.

11. All right minded people are necessarily shocked by allegations of child abuse.  The sad reality, however, is that people do abuse and neglect their children.  That is true.  Accordingly the court must be vigilant in all case involving allegations of child abuse.

12. But it is also true that, from time to time, allegations are made which are not true or which are exaggerated or which are made for tactical reasons, arising out of the politics of the relationship of the parents concerned. 

13. In this case the parties concerned know each other very well indeed.  They became involved with one another about 20 years ago, I think, when they were both still teenagers.  They got married, when they were young adults after an engagement and, no doubt, when they got married they hoped that they would be very happy.

14. From Mr Hughes’ perspective, there were some delays in starting a family, but from his perspective he was delighted when, firstly, X and then Y were born.  The parties separated when the children were young and they have been separated for some years now.  The court documents indicate that the date of their separation was 28 March 2011.

15. The father has re-partnered.  His current partner is Ms R, who is in court.  Mr Hughes and Ms R have a child who is 10 months of age.  From Mr Hughes’ perspective, Y and X enjoy interacting with their half-sibling.

16. Significantly in this matter, on 2 July 2013, which was about two and a half years after the parties had separated, an application for consent orders was made by them to the court, with the intention that orders would be made to finalise parenting arrangements for X and Y. 

17. The parties were required to file in a quite detailed form in order to satisfy a registrar of the court that the orders being sought are appropriate and designed to be in the best interests of the children concerned.  The form requires that the parties to the proposed orders state that what each has asserted in the application is true and that each has receive some independent legal advice about the implications of the orders sought. 

18. When the parties in this particular matter applied for consent orders, in respect of X and Y, in mid-2013, neither of them raised issues regarding family violence or abuse or neglect of the children concerned.  From the father’s perspective this is significant.  Firstly because there were no such concerns in the first place and secondly the orders had been agreed only after there had been a lengthy process of negotiation, with each party being legally represented through that process.

19. The orders agreed upon saw the children spending regular and extensive periods with their father, which will be extended when the children are of school age.  The time for extension is apparently imminent.

20. In her application, the mother asserted that during the parties’ relationship, she was the victim of serious domestic violence at the father’s hand.  She set out these various incidents of violence in her recent affidavit.  These incidents pre-date the making of the consent orders and, as I say, are not attested to in the application for consent orders.

21. More recently, it is the mother’s evidence that Mr Hughes has been violent and abusive to her at handovers; has threatened her with his fist; and has driven off rapidly, from handover, with one of the children not having his seatbelt fastened. 

22. It is her case that she has tried to behave sensibly in respect of those matters, though she has made reports of them to the police.  Though, from Mr Hughes’ perspective, these have not led to any charge or investigation so far as he has been concerned.  The mother has provided what are called police incident reports, in respect of these matters.  These consist of a form on which a number or reference is made of the report to the police.

23. More recently she has asserted that she has concerns that the children are being inappropriately disciplined by their father.  She alleges that he sends them to a cupboard where they are locked in or isolated, which causes them to be terrified because they are locked in a dark and confined space. 

24. From her point of view, this behaviour is indicative of the poor level of insight that the father has and the sort of person that he is – violent and antisocial.  It is her evidence, in effect, that Mr Hughes is a bully, was a bully during their relationship, and has continued to be a bully afterwards.

25. She says he has been a bully to her and she is fearful that he will be a bully to the two children concerned.  She presents a person, in Mr Hughes, who is volatile, who has got a terrible temper and when he is in a temper he abuses and threatens those around him regardless of how old they are.  It is her evidence that she has reported these matters to police, who are the appropriate mechanism to investigate them and, as I say, she has been given incident cards by police, which document her concerns.

26. More recently again, in the early part of last year, the mother asserts that X came back into her care with what she describes as a carpet burn on his spine.  She says X told her that he got the carpet burn because he refused to go to his room, so his father dragged him, by his legs across, presumably, the carpet, to his room causing the burn in question.

27. Ms Hughes says she texted the father a photo of this injury and asked him what it was.  The father denied anything untoward in the injury, saying that it was eczema, a condition from which X suffers and which he (the father) had appropriately treated.  Accordingly, it is Mr Hughes’ evidence that there was nothing sinister in the injury

28. There was apparently also some further incident between the parties at handover in mid-2014, about which again they have very different views.  The mother alleging threatening antisocial conduct, which the father denies.  It is difficult, if not impossible for me to resolve these factual controversies in the context of an interim hearing such as this.

29. What is clear is that the parties have been separated for a significant period of time.  It is also clear, I think, from what both parties say about their relationship and one another, that the parties do not currently particularly like one another; do not communicate well or respectfully; but because they are the parents of two small children, they are compelled to interact with one another to some degree.  However such circumstances are necessarily not conducive to the easy and transparent flow of parenting information between the two parties concerned.

30. It is the mother’s case that throughout the parties’ relationship she was subject to the father’s control, but notwithstanding this, she must concede that she agreed to the consent orders that were made in July of 2013.  It seems to be implicit in her case that she only agreed to the orders against her better judgement.

31. More recently, again, the mother alleges there was a further incident involving X, which occurred on 1 or 2 January 2015, which has precipitated her urgent application to the court and brought her long standing concerns to a head.  The mother says that when the children came back into her care on 2 January, X said to her:

    “Mummy, I hurt daddy yesterday.”  X told me that he had shot the father in the eye with the Nerf.  X said that daddy screamed a swear word at him and then “daddy kicked me and I fell over’. 

32. So from the mother’s perspective, this was, she alleges, a further example of the father’s volatile temper, exploding in overreaction which resulted in the child being injured or at the very least exposed to his violent conduct.   As a consequence of this incident and what she says had happened before, she elected to suspend the children’s time with the father. 

33. A letter was written by her solicitor to this effect.  Thereafter, the father was allowed to see the children only on the basis that the time was supervised.  The father has responded to the application.  He has done that quickly.  He denies the allegation that is made against them.  He admits that he has on occasions behaved improperly, towards the mother, but he would say that that is largely out of character and arose out of frustration.

34. So today the mother wishes me to adjourn the proceedings and continue the regime of supervised time between the father and the children, which she has unilaterally imposed.  The rationale of this approach is that it will protect the children, whilst the police decide whether they are going to do anything about this incident, which has been reported to them. 

35. The father did not consent to any adjournment, no matter how brief because he denied that he had behaved inappropriately.  I was not prepared to adjourn the incident because I was concerned at the risk of a good relationship between these two children and their father being perhaps damaged.  

36. In these circumstances, I elected to hear some evidence from Mr Hughes, who was also cross‑examined by Ms Bosko, Ms Hughes’ solicitor.   The aim of this brief hearing being to get to the bottom of what happened in early January.

37. The reality is that the three individuals who know precisely what happened on 1 January are Mr Hughes himself – and I have heard some evidence from him – Ms R, who was in the father’s house some distance away but who had some exposure to the incident, and X himself.

38. X will not give evidence in these proceedings.  It is unlikely in the extreme that he will give evidence in the Magistrates Court if there is a charge against his father.  Nonetheless, I have to make some sort of assessment of the risk Mr Hughes represents to these children, in the light of the allegations made by the mother and what Mr Hughes had said about the Nerf incident.

39. Mr Hughes, in my estimation, gave his evidence honestly.  He was not dramatic at all.  In fact, he seemed to me to be a sensitive and somewhat soft‑spoken person.  He told me that X was given this Nerf gun as a present for Christmas. 

40. The toy was purchased from Toys “R” Us, so I presume it is in wide circulation with other families in South Australia and no doubt the rest of the country and is thought to be safe.  It fires foam pellets through compressed air or something like that. 

41. Mr Hughes thought it was a suitable toy for X because, of course, little boys love toy guns; they love shooting things.  Mr Hughes says that he told X not to shoot pellets at anybody’s face or head.  It is his case that on the occasion in question, X disregarded this rule or direction and shot his father, on Mr Hughes’s evidence, in the face, so that his eye was struck, causing him discomfort and distress.

42. Mr Hughes says that in the confusion, which arose, when he had covered his eyes with his hands, he fell and collided with the child accidentally. He cannot remember now how he made contact with him, but from Mr Hughes’ perspective, no injury was caused and none was intended.

43. It is also his evidence that after the incident happened, he admonished X for doing what he had been told not to do, and the child became distressed and cried, whereupon Mr Hughes comforted the child.  From Mr Hughes’ perspective, that was the end of the incident.  He describes X as a sensitive child. 

44. In terms of the carpet‑burn incident, he denied that he would assault his child in the way alleged.  To the contrary, it is his view that the abrasions on the child’s skin were due to eczema, which he has treated from time to time with a variety of medications, both prescribed by doctors and sold by pharmacists. 

45. I did not disbelieve any of Mr Hughes’ evidence. He seemed to me to be perplexed by what he thought was the difficulties in the parties’ relationship. He indicated that he tried to avoid provoking Ms Hughes and had used Ms R as an intermediary. He indicated that he inaugurated a communication book to exchange information but had found that at times frustrating because it was not returned to him by the mother.

46. He was visibly distressed at the thought of X being interviewed by police and perhaps being put under some form of emotional pressure.  As indicated earlier, he has a very radically different view of what is the nature of the parties’ relationship with one another.

47. Of course, I am duty‑bound to take allegations of family violence, abuse and neglect seriously.  Because of that, I elected to hear from Mr Hughes myself and make some sort of assessment of what sort of a person he is. 

48. True it is that people can present convincingly in the witness box and behave appallingly outside of it, but the witness box is the only tool I have to assess what sort of person Mr Hughes is.

49. The fact remains that there is no objective evidence to support the mother’s allegations.  She was not there, when she asserts X was kicked by his father.  She says X was hysterical afterwards, and because of that, she did what a concerned parent should do, which, by necessary implication, is make a complaint to the police. 

50. The police have not as yet assigned the matter to an officer.  It is now approaching a month since the incident occurred.  The father’s solicitor has spoken to the police concerned and has been apparently told by them that Mr Hughes need not be greatly concerned about the matter. 

51. In all the circumstances, I do not think that it would represent an unacceptable risk for these children if the regime, which was inaugurated with the agreement of each of the parties in July 2013, is resumed.

52. I am not persuaded that there is a danger that a police investigation will be derailed by taking such a course.  In my view, it is likely to be in the best interests of the children that their relationship with their father is normalised sooner rather than later. 

53. So for those reasons, what I propose doing is dismissing the interim applications, but I will adjourn the final application at this stage, I think, for about six weeks so that the parties can consider their positions in the meantime and, I suppose, the police can do whatever the police wish to do.  So on that basis, I will adjourn the matter, say, to 30 March 2015 at 9.30 in the morning.

54. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  18 March 2015