Credibility is crucial to cases

Credibility is crucial to cases

Atkinson & Atkinson

Credit & findings

  1. In some cases, issues of credit do not assume great importance. Indeed, in some cases, it is possible that differing versions of events led by the parties can be accepted as standing together, as reflecting different perceptions rather than dramatic differences, possibly deliberate, in the recollection of the parties (see for example the discussion in Hopper & Hopper [2016] FCCA 84).
  2. In this case issues of credit are fundamental.
  3. The central issues, as identified by Ms G and with respect to which these parties have conducted their litigation, (is whether Mr Atkinson has perpetrated significant family violence upon Ms Atkinson and whether Ms Atkinson suffers from and is thus impeded by a mental illness or mental disorder) are very much, as will be discussed hereafter, connected. Those issues are also largely though not exclusively determined by findings of credit.
  4. This is not a case of nuance or perception.
  5. Mr Atkinson submits through his Counsel that determinations of credit are not necessary and that no adverse finding of credit should be made against Mr Atkinson as he has been “truthful from his perspective”.
  6. This is not a case regarding perspective. Both parties cannot be right in that which they allege. Either Mr Atkinson has, as Ms Atkinson asserts, perpetrated family violence upon Ms Atkinson or Ms Atkinson has been or is, as Mr Atkinson asserts, suffering from a mental illness or disorder one of the symptoms of which has been her manufacture of malicious allegations against Mr Atkinson, extending to and including, the fabrication of evidence in both physical and oral form.
  7. This is a case where corroboration is important. This is a case where findings of credit will determine many of the facts of the case. It must be so as the versions of events given by these parties are diametrically opposed and irreconcilable and so fundamentally connected (as regards the central issues of alleged mental illness and family violence) that a determination of which version of events is to be preferred must be undertaken.
  8. The versions of events given by each of these parties cannot stand together. Put bluntly, the Court must determine which of the parties is telling the truth and which is not. It is simply not possible, on the evidence as it is led, for both to be telling the truth or both to have different perspectives or recollections.
  9. Ms Atkinson asserts that she is telling the truth. Ms Atkinson is able to point to a number of corroborative sources that support her version of events. Ms Atkinson is plausible, clear and consistent in her evidence and including by making admissions against interests when presented with contrary evidence.
  10. Mr Atkinson asserts that he is telling the truth. Additionally, Mr Atkinson asserts that each other source of evidence (Ms Atkinson, Ms L, the children of the relationship between Mr Atkinson and Ms L and business records) are lying, fabricating and manufacturing evidence.
  11. Mr Atkinson asserts that Ms Atkinson and Ms L are colluding and conspiring with each other and that further unspecified third parties also conspire with Ms Atkinson to mischievously manufacture evidence.
  12. In the case of Mr Atkinson’s children from his relationship with Ms L they are suggested by Mr Atkinson to have been brainwashed and coached in their evidence. No evidence is produced or pointed to that which would support that assertion. The Court is simply asked to accept it.
  13. As would be apparent from all of the above matters and the discussion to follow, I accept Ms Atkinson as a witness of truth, candour and frankness.
  14. Appropriate concessions were made by her during her cross-examination. Those admissions against interests add further to my assessment of her credibility.
  15. Ms Atkinson was cross-examined and I am not satisfied that any significant challenge to Ms Atkinson’s credit worthiness was established. That is in no way a slight upon Counsel for Mr Atkinson in the conduct of Mr Atkinson’s case. It is purely a reflection of Ms Atkinson’s evidence which I found impressive, plausible, internally consistent and largely corroborated by independent sources.
  16. Mr Atkinson asserts that Ms Atkinson cannot and should not be accepted as a witness of truth. The submissions put on behalf of Mr Atkinson focus upon but are not confined to, Ms Atkinson having given various statements (to the Police, (albeit through Mr Atkinson’s attorneys) and to the psychologist Ms D), which Ms Atkinson has later retracted and disclaimed as false.
  17. In addition to the above submission, Mr Atkinson submits that Ms Atkinson has, at the time of making various of the above statements, been afflicted by mental illness. The symptomology suggested to be demonstrative of mental illness are intimately connected with the allegations of family violence raised in these proceedings.
  18. Ordinarily a witness having given statements which they then retract and deny the truth of (in this case such statements are suggested to have been entirely fabricated and manufactured) would be a fundamental issue going to the credit of that witness. In all probability, such a retraction would be damaging if not fatal to that witness being accepted as a witness of truth.
  19. In this case I am not satisfied that such consequence can or should follow.
  20. The statements that have been made by Ms Atkinson fall into two general categories, although they have a commonality. Ms Atkinson’s statements have related to:
    1. Mr Atkinson’s suggested perpetration of family violence upon Ms Atkinson; and
    2. Ms L’s, (Mr Atkinson’s former partner), suggested behaviours towards or with respect to Mr Atkinson.[10]
  21. Ms Atkinson has made statements to a number of people or agencies raising allegations of Mr Atkinson’s violence towards her. This has included statements to staff at a Hospital and Police.
  22. Ms Atkinson made statements to staff at (omitted) Hospital and whilst she was pregnant and receiving treatment. The staff of the Hospital, being mandatory reporters, made reports to the Department of Family and Community Services. When the Department sought to engage with Ms Atkinson regarding these allegations she refused to co-operate with Departmental Officers and denied the need for assistance.
  23. Ms Atkinson has, on a number of occasions, made statements to the Police which statements she has later retracted. In retracting those statements (both directly with the Police and through her attendance upon the psychologist, Ms D), Ms Atkinson has gone further and suggested that she has inflicted harm upon herself, that she has caused, allowed or permitted others to inflict injuries upon her for the purpose of producing observable injuries and for which she has falsely blamed Mr Atkinson and, on one occasion, alleging that injuries were occasioned to her by Mr Atkinson but he acting protectively and in response to her attempts at self-harm through ingestion of medication (and thus Mr Atkinson forcing pills from her mouth thereby causing bruising).
  24. It is the latter of the above statements by Ms Atkinson which are suggested to be demonstrative of and to have supported a diagnosis of mental illness.
  25. Mr Atkinson submits, in essence, that Ms Atkinson’s initial statements, alleging that Mr Atkinson has perpetrated family violence upon her, are false and that her retractions are correct and truthful.
  26. Ms Atkinson submits, in essence, that her initial statements, alleging that Mr Atkinson has perpetrated family violence upon her, are correct and that her retractions are untruthful and the subject of coercion and control exerted by Mr Atkinson upon her.
  27. What is immediately apparent from a consideration of the evidence addressing the above matters is that Ms Atkinson’s statements alleging the perpetration of family violence are made when she is away from Mr Atkinson and her retractions occur when she is with and/or in the presence of Mr Atkinson.
  28. I accept Ms Atkinson’s evidence that:
    1. A statement signed by her and provided to the psychologist, Ms D, was prepared by Mr Atkinson or his attorneys;
    2. When Ms Atkinson attended upon Ms D, including the day before these parties were due to be before a Local Court in relation to an Apprehended Domestic Violence complaint against Mr Atkinson, that Mr Atkinson attended with her and was present and provided at least some portion of the narrative given to Ms D and otherwise provided a degree of supervision or vigilance regarding the information provided by Ms Atkinson;
    1. Ms Atkinson’s refusal to co-operate with the Department of Family and Community Services arose in the context of her relationship with Mr Atkinson having resumed and Ms Atkinson desiring to continue that relationship combined with the fears of Ms Atkinson that her engagement with the Department (or other agencies) would cause calamitous intrusion in her family and possibly cause her to lose the care of her as then unborn child (whilst Ms Atkinson’s attendance at (omitted) Hospital had been with respect to a miscarriage she was soon thereafter pregnant with X). A cultural issue, not directly spoken to by the evidence and thus no findings can or will be made in that regard, may also have been in play, although scant consideration of that factor is apparent in the notes produced by the Department.
  29. In the case of statements made by Ms Atkinson for the purpose of Mr Atkinson’s use of those statements in the defence of proceedings against him arising from family violence complaints made by Ms L, I accept Ms Atkinson’s evidence that:
    1. The statements signed by Ms Atkinson were prepared by Mr Atkinson’s attorneys;
    2. The statements signed by Ms Atkinson were prepared from instructions provided by Mr Atkinson;
    1. Ms Atkinson was coerced and pressured into signing the statements.
  30. In accepting Ms Atkinson’s evidence regarding the preparation of the statements, I note that Mr Atkinson has not sought to call readily available evidence from his former attorneys which would, on his assertion, disprove Ms Atkinson’s evidence. The proceedings in which the statements were prepared are concluded. I am satisfied that there would have been no prejudice to Mr Atkinson from taking that step. On Mr Atkinson’s assertion the statements were prepared by a witness, Ms Atkinson, and the evidence would not have been excluded on the basis of legal professional privilege nor would such privilege have been waived.
  31. This issue of credit is not only fundamentally important to the determination of issues of family violence but is fundamentally connected with and demonstrative of the nature of family violence.
  32. Family violence and the acts of family violence specifically complained of by Ms Atkinson, do not generally occur in a public place. Such violence tends to occur, as it were, “behind closed doors”. Thus, as the Full Court has recognised in Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268, direct observational corroboration is often unavailable. Certainly, there is no such corroboration in this case.
  33. Ms Atkinson’s explanation for the retraction of statements, such retractions occurring when Ms Atkinson has reconciled with Mr Atkinson or with Mr Atkinson and influenced by Mr Atkinson, is clear, consistent and plausible. It is also entirely consistent with that which might be expected of a victim of coercive and controlling family violence.
  34. The alternate hypothesis, that advanced by Mr Atkinson, that the initial statements are mischievously manufactured to obtain some unspecified and unfathomable benefit[11] and yet, notwithstanding that motive and intent, indeed in the case of the suggested collusion and conspiracy between Ms Atkinson and Ms L, the statements are then so readily withdrawn, appears implausible. It would seem, if Mr Atkinson is to be believed, that the retraction of statements are made by Ms Atkinson based purely upon some personal reflection and sudden desire to tell the truth.
  35. As will be discussed in a consideration of the specific issue of family violence, Ms Atkinson is able to produce various forms of corroboration, including her contemporaneous statements, the observations of others at the time that those statements were made (such as Hospital staff observing bruising to Ms Atkinson) and her evidence is clear, consistent and plausible.
  36. The evidence given by Mr Atkinson regarding the “alternate hypothesis” as to how Ms Atkinson’s injuries were occasioned appears, on first glance, fantastic. That appearance does not, however, result in the rejection of that evidence. What results in the rejection of that evidence is the implausibility of that evidence as against the consistent and plausible evidence led by Ms Atkinson together with the corroboration of portions of Ms Atkinson’s evidence and the failure by Mr Atkinson to call any evidence from any source that would support or corroborate his assertions (even though Mr Atkinson identified a number of sources from which that evidence might have been called). In addition, Mr Atkinson’s own demonstrated inaccuracies, his inability to provide the same story consistently during cross-examination by Counsel for the mother and the Independent Children’s Lawyer, cause me grave concern, to the point of the fatality of Mr Atkinson’s credit.
  37. Mr Atkinson asserts that unknown or unspecified “friends” of Ms Atkinson have been commissioned by her or have, with their own mischievous intent, inflicted injury upon Ms Atkinson so that she might accuse Mr Atkinson of having done so. Whilst it is not fundamental to the allegation or its acceptance or rejection, Mr Atkinson does not advance any “motives” for why this would be so nor does he identify Ms Atkinson, in any other context, as having friends.
  38. Mr Atkinson asserts that Ms Atkinson and his former wife, Ms L, have colluded and conspired together to manufacture allegations against him all of which he has successfully defended in Local Court proceedings.[12] Whilst it is not fundamental to the allegation or its acceptance or rejection, Mr Atkinson does not advance any “motive” for why this would be so nor why both of his wives and various unspecified others have so stridently desired his persecution.
  39. Mr Atkinson asserts that Ms Atkinson has inflicted injuries upon herself both with mischievous intent (so as to then accuse Mr Atkinson of responsibility for those injuries) and as a function of her suggested mental illness.
  40. On occasions, it is probable if not directly identified by Mr Atkinson that there would be corroboration (such as an instance of Ms Atkinson’s alleged “self-harm” suggested to have occurred at the home of Mr Atkinson’s brother and an event suggested to have occurred at the then home of Mr and Ms Atkinson when an employee Ms M, called as a witness in these proceedings, were suggested to be present). No corroborative evidence is produced from either source. The available Jones & Dunkel inferences are drawn as a consequence and I accept Ms Atkinson’s evidence.
  41. Having regard to the further issues of credit that will be discussed below through a consideration of the evidence available with respect to each allegation by Ms Atkinson and Mr Atkinson and the totality of the evidence, I am satisfied, accept and find that Ms Atkinson’s evidence is to be believed as more probably correct than not. Correspondingly, I am satisfied, and accept and find that Mr Atkinson’s evidence is to be rejected.
  42. I accept Ms Atkinson’s initial statements as truthful and her subsequent retraction of those statements as untruthful but in response to coercion and pressure from Mr Atkinson. Thus, any erosion of credit which arises from the retraction of those statements erodes the credit of Mr Atkinson rather than Ms Atkinson.
  43. In contradistinction to Ms Atkinson, Mr Atkinson was an unimpressive witness. Mr Atkinson gave the impression, at times and particularly on the fifth day of Trial when significant time was devoted to an examination of the changeover which had occurred at the (omitted) Police Station 10 June 2016, to be “making it up as he went along”.
  44. The events of 10 June 2016 are particularly illuminating as regards issues of credit (although they are not the sole area of evidence that is of significance in this regard). I will, in due course, touch upon those events separately as well as touching upon a number of other important aspects of the evidence.
  45. It is, however, instructive to consider the evidence relating to the changeover which occurred between these parties at (omitted) Police Station on 10 June 2016. That evidence is illustrative of the basis upon which I accept and prefer the evidence of Ms Atkinson to that of Mr Atkinson.
  46. Ms Atkinson’s version of events in relation to the changeover 10 June 2016 is set out in a letter from her attorneys dated 17 June 2016 (Exhibit R5). Ms Atkinson adopted the contents of that letter on oath as her evidence.
  47. Mr Atkinson gave brief oral evidence with respect to the events and was cross-examined regarding that evidence. Mr Atkinson, in a number of important respects, gave three different versions of events, being his evidence in chief and his responses in cross-examination by Counsel for the mother and the Independent Children’s Lawyer.
  48. Mr Atkinson, when called to give evidence, did so by reference to the above letter and the version of events set out therein. Mr Atkinson was asked whether he agreed with the contents of the letter. He responded, in his evidence in chief, “I disagree. It’s the opposite of what happened”.
  49. Ms Atkinson suggests that X was carried into the Police Station by Mr Atkinson and that X was holding Mr Atkinson’s phone and playing a game upon it. It is unclear whether X was, in fact, playing a game on Mr Atkinson’s mobile phone. Ultimately, it is not helpful to the acceptance of one version of events or the other whether he was or not. X was most assuredly carried into the Police Station by Mr Atkinson and was holding Mr Atkinson’s mobile phone.
  50. Mr Atkinson gave evidence that Ms Atkinson came over to him and that he put X down on the ground and took the phone from X. That is certainly so. From watching the video it is clear that Ms Atkinson offers her phone to X as she alleges to seek to calm him, X having become upset when the phone was taken from him.
  51. Mr Atkinson gave evidence that he spoke calmly to Ms Atkinson and suggested “we should look at a different method to do changeover” and that he then attempted to encourage the child to go to the mother. From watching the video it would appear that Mr Atkinson, rather than speaking to the mother, turns to the room at large, holding up his hands, and speaks to the room rather than to Ms Atkinson.
  52. Ms Atkinson’s evidence is that Mr Atkinson yelled out, “X doesn’t wanna come to you. X doesn’t want you at all. He refuses to get in the car when it is time for changeover”. The video that is tendered does not have audio. What is said by Mr Atkinson cannot be ascertained from the video.
  53. Mr Atkinson was given the opportunity to deny that he had used those words (having been taken specifically to the letter and asked to identify that with which he disagreed). Mr Atkinson did not do so. I am satisfied that Ms Atkinson’s version as to the words spoken by Mr Atkinson should be preferred.
  54. In his evidence in chief Mr Atkinson suggests that Ms Atkinson “started screaming after Police to arrest me because I talked to her”. Ms Atkinson suggests that she had told Mr Atkinson not to talk to her and that Mr Atkinson had continued yelling. The video shows Mr Atkinson continuing to gesticulate and speak. It cannot be ascertained whether he was yelling or not.
  55. Ms Atkinson suggests that Mr Atkinson proclaimed to all within the area “look everyone. He doesn’t want his mum. He doesn’t want her”. Mr Atkinson, again, had the opportunity to specifically deny the attribution of those words to him. He did not do so. I accept Ms Atkinson’s version of events.
  56. Ms Atkinson is then shown going to the counter of the Police Station and speaking to a civilian behind the counter. Whilst doing so Mr Atkinson stays at the back of the room with X and assists X purchase a bag of lollies from a vending machine. That is entirely consistent with Ms Atkinson’s version of events.
  57. Mr Atkinson suggests that he was then asked by the Police to go outside and that he did so. Mr Atkinson is off-camera to the right at some point and it may well be that this was what occurred. After being briefly off screen Mr Atkinson picked up X and left the Police Station and remained outside for approximately 5 minutes. During much of this time Ms Atkinson was speaking with the civilian behind the counter and that civilian came out from behind the counter and spoke with Ms Atkinson in the foyer area. Ms Atkinson then took a seat in the foyer and was speaking with another woman who was at the Police Station with her children.
  58. Mr Atkinson gave evidence in chief that he then came back into the Police Station. During his cross-examination he suggested that he had been called back into the Police Station by a Police Officer. He gave various versions of this, including that a Police Officer came out of the Station to talk to him, a Police Officer standing in the doorway and calling out to him to come back in and possibly one Police Officer in the doorway calling to him and another coming out to him. From viewing the video none of those things occurred other than Mr Atkinson going outside of the Police Station and then returning approximately 5 minutes later. Certainly, no Police Officer is seen at or near the door and no Police Officer went towards the door or left the foyer.
  59. Ms Atkinson suggests that Mr Atkinson returned to the Police Station with X and that X began to slap at his mother whilst holding the bag of lollies that had been purchased for him. That is certainly depicted on the video. Eventually, it would seem that through the intervention of a Police Officer (although some of that which occurred is off screen), X passes into his mother’s care. Ms Atkinson takes a seat in the foyer and Mr Atkinson leaves the building.
  60. Mr Atkinson suggests that as he was leaving the building Ms Atkinson was following him and was so close behind him that he could perceive her presence without even needing to look. As a consequence, Mr Atkinson suggests that he turned left upon exiting the Police Station, walked down a ramp for about 3m to the corner of the building and then stood or hid behind a pole at the corner of the building to avoid any confrontation with Ms Atkinson whom, Mr Atkinson believed, had followed him out of the Police Station carrying X.
  61. The video shows Ms Atkinson sitting in the foyer of the Police Station calming and soothing X for a short while before Mr Atkinson returns into the foyer. Ms Atkinson then immediately leaves. Ms Atkinson suggests that upon returning to the foyer Mr Atkinson called out to her and all assembled “What are you still doing here. Leave I want to speak to the Police now”. Whilst there is no audio available from that produced by the Police clearly Mr Atkinson is gesticulating and speaking whether directed to Ms Atkinson or the room in general. I accept and prefer Ms Atkinson’s version on this point.
  62. Mr Atkinson suggests, again, that he had been called back into the Police Station by a Police Officer who wished to speak with him and that the Police Officer had suggested that he, (that is the Police Officer), would make a record of his own volition and that he simply needed Mr Atkinson to produce his licence as confirmation of his identity. That is not what is shown on the video.
  63. Mr Atkinson is shown as going to the counter, gesticulating and speaking for some minutes with a Police Officer who is standing behind the counter. At the very end of the video (approximately 15 minutes) and as the video terminates, Mr Atkinson is shown possibly reaching for his wallet as the Police Officer is standing behind the counter in front of Mr Atkinson and typing.
  64. The video does not corroborate and largely contradicts Mr Atkinson’s version of events. The video corroborates Ms Atkinson’s version of events.
  65. The COPS event entry with respect to this event too, which I accept as an accurate reflection of that which occurred, largely corroborates Ms Atkinson’s version of events and largely contradicts Mr Atkinson’s version of events. That record is as follows:
        <li “=””>

    The victim and the POI

        (person of interest) [Ms Atkinson]

    have and


    agreement when handing over X at (omitted) Police Station, to prevent arguments between each other. The victim and the POI have current family court orders in place, Mr Atkinson has X to Friday while Ms Atkinson has X Friday night until Monday morning. When Mr Atkinson attended (omitted) Police Station to hand over X, X started crying because he did not want to leave his father. Both parents were inside (omitted) Police station foyer, Ms Atkinson started to get angry with Mr Atkinson because he is not handing over X. Police heard both parties arguing, Police went into the front foyer and saw the POI trying to grab X while the Victim had his hands up in the air. The POI started to get angry and ran over to the counter screaming to police saying “I want to report him, he won’t give me my son, I have family court orders, he is not allowed to talk to me, I want to report him now”. Police calmed down the situation, police handed over X to the mother while she left. Police are aware there is an ongoing family court issue over the custody of their son.

  66. As I have indicated, this particular incident and the evidence relating to it is illustrative if not emblematic of Mr Atkinson’s evidence. His evidence changes depending upon the questioner and, whenever an independent document is available, it contradicts Mr Atkinson’s version.
  67. It is by reference to this example, repeated throughout Mr Atkinson’s evidence and which I do not propose to recite in full (it will be apparent from the Transcript of Mr Atkinson’s evidence that it is so) that I have grave difficulty accepting Mr Atkinson’s evidence and thus reject him as a witness of truth.
  68. Wherever there is difference between Mr Atkinson’s evidence and that of Ms Atkinson, I accept and prefer the evidence of Ms Atkinson.
  69. Whenever there is difference between Mr Atkinson’s evidence and that set out in an independent, third-party record, I accept and prefer that contained within the business record.
  70. I have similar issues with the credibility of each of the three witnesses who were presented for cross-examination in Mr Atkinson’s case. All three appeared, to varying degrees, partisan and aligned with Mr Atkinson.
  71. Ms B, a perfectly pleasant, elderly lady and a neighbour of Mr Atkinson, appeared somewhat predisposed to Mr Atkinson and conversely antagonistic to Ms Atkinson. As regards various events that Ms B had addressed in her Affidavit material she conceded, under cross-examination, that she could not be certain that the woman that she saw and described in various portions of her evidence as Ms Atkinson was, in fact, Ms Atkinson. Ms B has never directly met Ms Atkinson and suggested that she “got confused with the women with their headscarves… I don’t know who’s who… I can’t understand what they’re saying”.
  72. At its highest, I am satisfied that Ms B’s evidence suggests that she had observed a number of arguments or disputes between Mr Atkinson and another woman or women, possibly Ms Atkinson, and had been a witness to the volatility in the relationship between Mr and Ms Atkinson.
  73. Ms M’s evidence is perhaps typified by the failure to corroborate Mr Atkinson’s evidence as well as by clear partisanship.
  74. Ms M was unable to identify any positive of the mother nor any negative or criticism of the father. When Ms M was specifically asked “what does the mother do well?” Her only response was “I’ve never seen her interact positively with X”. When asked further whether it would surprise her that others (such as the Family Report Writer) had observed positive interaction between the mother and X, Ms M was unable to accept that this might have been or could be so.
  75. Ms M’s evidence contains no reference to any event or suggested injury to or concern for X (other than the most generalised suggestion of fear for his safety in the mother’s care) later than 30 September 2013.
  76. Ms M had sworn an Affidavit in earlier proceedings. In the earlier Affidavit, to which the witness was taken, she had identified a number of specific complaints, including the suggested deliberate infliction of injury to X in her presence and whilst the child was at and in the care of the (omitted) in which she was employed (she being an employee of the father). All such references were absent the Trial Affidavit of Ms M.
  77. Ms M did not give evidence of a number of events alleged by the father to have occurred at the child care centre and in the presence of the witness. On the basis that the witness was clearly identified by the father as having been present, the absence of such evidence is telling and creates fundamental difficulties in accepting the father’s evidence. This includes, but is not limited to, events related by the father at paragraphs 45 and 47 of his Affidavit filed 24 March 2016 and being matters that go to issues of such significance as the circumstances by which X came to be in the father’s care in August 2013 and suggested violence perpetrated by the mother towards the father and X.
  78. One area in which Ms M directly contradicted the father’s evidence related to a resumption of cohabitation or reconciliation between the parties. Ms M was clear in her evidence that after the initial separation of the parties (and their first tranche of proceedings) that the parties reconciled and lived together. This is, of course, denied by Mr Atkinson. I accept this evidence by Ms M.
  79. Subject to the above comment, I do not accept Ms M as an accurate historian or as a witness of truth.
  80. Ms N, another employee of the father, is similarly rejected by me as an accurate historian. I would not go so far as to reject the witness as a witness of truth. However, her evidence was, in important respects, contradictory to that of Ms M and the father.
  81. Ms N gave evidence of a number of injuries suggested to have been observed on X. These comprised scratches, bruises and, on one occasion, what the witness believed was or may have been a burn. There is no dispute that, on one occasion, X had been burnt by a cigarette which was held by his mother. The issue on the evidence, at least as between the mother and father, is whether the burn was deliberately inflicted. I accept the mother’s evidence that the child had simply bumped against a cigarette which the mother was holding.
  82. None of the injuries suggested to have been observed by Ms N were suggested to be beyond what might be expected of an active, mobile toddler of X’s age. It was conceded by the witness that the injuries, by and of themselves, were not extraordinary and did not warrant or require any further investigation or report by her (or for that matter her supervisor at Mr Atkinson’s (omitted), namely, Ms M) to the Department of Family and Community Services or any other Agency.
  83. One significant element of Ms N’s evidence was the concern which she held for X regarding his distress at changeovers on the two occasions that she accompanied Mr Atkinson to changeover as well as X’s distress at the day care centre preceding changeovers.
  84. Ms N conceded that one possible basis for X’s distress at changeovers was his reaction to the somewhat toxic environment which those changeovers represented. It is to be remembered, as will be apparent from the chronologies set out above, that there are a number of circumstances surrounding changeovers which might well be distressing for X including:
    1. The changeovers having occurred for a period of over two years in the foyer of a Police Station;
    2. X’s parents being in significant, dare I say toxic, conflict with each other, including that conflict playing out at changeovers on a regular basis;
    1. X being presented by Mr Atkinson to a Doctor (continuing for at least a period of some months) immediately prior to and following each period that he spent with his mother;
    1. Frequent examinations of X by a Doctor following his return from the mother’s care with completely un-extraordinary and trifling “injuries” and following thereupon reports by Mr Atkinson to Police and/or the Department of Family and Community Services regarding those “injuries” and extending, on occasions, to allegations of the deliberate infliction of those injuries;
    2. X’s presentation at the child care centre each Friday morning, notwithstanding that X is to be delivered to his mother at (omitted) Police Station at 10am each Friday morning. This presentation to day care would appear to have been somewhat unnecessary if not mischievous. There is no dispute that X has friends at the day care centre with whom he interacts and enjoys playing with. Thus, it would appear entirely lacking in child focus on the part of Mr Atkinson to deliver the child to the centre, to let him settle and engage in play with friends, to then be pulled away from those arrangements for the purpose of taking him to changeover and, for a significant period, with a diversion for the child’s medical examination before changeover.
  85. This evidence by Ms N, of X being upset each Friday morning, is entirely expected and predictable when the above circumstances are taken into account. Indeed, those circumstances suggest strongly that Mr Atkinson’s actions in taking X to the child care centre each Friday morning is lacking insight into the child’s circumstances and needs and perhaps, more maliciously, intended to create upset for the child for the purpose of it being witnessed by others, to wit, Ms N.
  86. Ms N’s evidence did, however, have one area of specific assistance to the Court. Ms N disclosed (during her cross-examination rather than in her Affidavit material) that she has observed X, whilst X is in her care at the day care centre, scratching himself, hitting himself and biting himself (as well as others) and has observed this on a number of occasions. This is highly concerning and suggestive that X is not coping well with the present arrangement.
  87. The remaining witnesses in Mr Atkinson’s case have not been presented for cross-examination. Whilst I do not reject their testimony outright I give that evidence little if any weight especially to the extent that such evidence is contrary to that of Ms Atkinson.
  88. For the above reasons, I am entirely satisfied that:
    1. Ms Atkinson is a witness of truth and a credible witness;
    2. Mr Atkinson’s evidence cannot be accepted on its face as accurate;
    1. Whenever there is discrepancy between the evidence of Ms Atkinson (or that contained within the various Exhibits submitted as business records) the evidence of Ms Atkinson and the contents of those documents should be accepted as accurate as against the evidence of Mr Atkinson.


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