ALBERSON & ELZARES
[2020] FCCA 2286
•26 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALBERSON & ELZARES | [2020] FCCA 2286 |
| Catchwords: FAMILY LAW – Parenting – whether father poses as a unacceptable sexual risk to the child – where the father was convicted for possessing child exploitation material – where father disputes the conviction – where father is assessed as being a moderate risk of offending – whether the best interests of the child served by having contact with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CG, 60B, 61DA, 64B, 65D, 65DAB Evidence Act 1995 (Cth), s.128 Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 |
| Applicant: | MR ALBERSON |
| Respondent: | MS ELZARES |
| File Number: | BRC 8291 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing dates: | 10, 11 and 12 August 2020 |
| Date of Last Submission: | 12 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 26 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr M Wilson |
| Solicitors for the Applicant: | BDG Legal |
| Counsel for the Respondent: | Ms A Frizelle |
| Solicitors for the Respondent: | Sempre Vero Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr J Ashcroft |
| Solicitors for the Independent Children’s Lawyer: | Dooley Solicitors |
ORDERS
That all previous Orders be discharged.
That the Mother have sole parental responsibility for the child X born in 2011 (“the child”).
That the child live with the Mother.
That the child spend no time with the Father.
That the Father is at liberty to communicate with the child by letter on the child’s birthday and at Christmas with the Mother to monitor and approve such communication if satisfied it is in the child’s best interests to receive the communication.
Leave is granted for an Australian passport to issue for the child X born in 2011.
That pursuant to section 11 of the Passports Act 2005 the child X born in 2011 be permitted to leave the Commonwealth of Australia.
That the requirement for the father’s signature on the passport application for the child X born in 2011 be dispensed with and an Australian passport issue for the child.
That the child X born in 2011 be permitted to leave the Commonwealth of Australia alone or in the company of the mother MS ELZARES born in 1971.
That the Mother will facilitate the child to communicate with members of the paternal family, excluding the Father, supervised by the Mother, if she considers supervised communication is necessary, excluding the Father:
(a)When the child requests; and
(b)At other times at the Mother’s discretion.
That the Independent Children’s Lawyer be discharged.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Alberson & Elzares is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8291 of 2019
| MR ALBERSON |
Applicant
And
| MS ELZARES |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders. The father, Mr Alberson was born in 1952. The mother, Ms Elzares was born in 1971. They have one child of the relationship, X, who was born in 2011. This application concerns X.
The parents first met in the early 1990s but did not become romantically involved until the middle of 2009. The mother had a child from her previous relationship, Ms B, who was born in 1999. The parents started living together in late 2009 and Ms B, who was then aged 10, also lived with them.
Ms B left the household in late 2014, after an incident that occurred with the father. She then went to live with her own father. From that point on, the members of the household were the mother, the father and X.
The parents separated on a final basis in late October 2016.
Family Violence
The mother claims that there was family violence that occurred both before and after the separation. The mother claims that the father was very demeaning towards Ms B, making comments about her weight and trying to control her diet. The mother said that this culminated in the father throwing a lightbulb (which was still in its box) at Ms B which hit her on the side of the head. This is the incident that caused Ms B to move in with her own father.
The father claimed, in evidence, that he had an injury to his shoulder and did not have much strength in the shoulder and could not aim. He said that his intention was never to actually hit the child. As was noted during the trial, if the father is correct in his version, then Ms B is very lucky that she did not sustain worse injuries.
The mother claims that on New Year’s Eve 2015, she, the father and X went to the fireworks at Suburb C with friends. She claims that when X got sand in her eye, she made the suggestion to the father that he wash or brush it out. She said that the father did not like her telling him what to do and hit her across the back of the head with force. She said this happened in front of X.
The mother claimed that the father was very controlling during the relationship. If she were out with friends, she said that the father would often call and demand to know where she was. She said that the father started to “cut her out” of visits with his family. She said that he would tell her that she needed to clean the house or do grocery shopping whilst he would take X to visit his own family.
The mother claims that on 8 October 2016 at about 2.00am, X woke up crying and she went into X’s bedroom to console her. She said that the father soon followed and turned the light on. She said she asked the father to turn the light off but he insisted that it stay on. When the father refused a number of requests to turn the light off, the mother got up with X in her arms and walked towards the light switch.
The mother said that as she reached over to turn the light off, the father quickly and forcefully reached out and grabbed her by the throat and squeezed her throat tightly. She said that he pushed her backwards by the throat moving her towards the bed. She said she fell on the bed with X in her arms. As she fell back, she said that she was able to push a foot and leg at the father which made him let go of her throat. She said that X was screaming and that she (the mother) then yelled at the father to get out. She said that she spent the rest of the night on the floor in X’s bedroom.
The mother claimed that she suffered some injuries from this incident but did not report the incident to police because she was scared of the father’s reaction. She did report the incident to a friend of hers.
The mother said that this incident was the catalyst for her leaving the relationship. Very soon after this incident the mother separated from the father and moved out with X to rental accommodation.
The father denies these allegations and maintains that he did not ever use physical force against the mother at any time.
As will be detailed later in these reasons, after separation, X spent time with the father on an informal basis. The mother details other incidents that amount to family violence that occurred after separation. These include physical pushing of the mother during a change over.
The mother claims that on 14 October 2017, X was spending time with the father. She said that the verbal agreement was that X would be with the father until 5.00pm. On that day, the father had taken her to Town D to visit members of his family. The father did not return X to the mother at the agreed time. As the weather was bad, the mother began to worry. The mother called the father’s mobile phone on multiple occasions but it rang out. The mother also sent text messages to the father but received no response. She contacted the members of the father’s family who informed her that the father had left at 4.00pm.
At 7.30pm, the father called the mother and said that she could come and pick X up from his residence. The mother claims that when she arrived at the father’s residence and walked through the gate, the father blocked the front door with his body and X was standing behind him inside the residence. The mother said that she asked the father to get out of the way so that she could get X and her belongings. The mother claims that the father replied that she was not coming in. The mother said that she had never had any problem with entering the home before this day.
The mother said that she placed her hands on the father’s chest to move him away from her and that the father forcefully pushed her backwards causing her to almost fall over. The mother said that she grabbed hold of the gate to hold herself up and this caused her pain in her neck and back. The mother said that X was screaming and so she demanded that the father give her X. She said that the father refused and so the mother called the police.
The mother claims that the police advised her that they could not assist her because there was no Family Court orders in place. The mother said that she ended up re-entering the yard of the father and negotiated with him to return X. She said that eventually the father said that he would let X out of his home if he was the one to put her in the mother’s car. The mother agreed.
The father has a different version of this event. He claims that, as he was leaving Town D, X asked if they could visit some of her friends. The father said that he agreed but could not get any phone reception to let the mother know. After leaving the friend’s house, the father said that he contacted the mother when he had mobile reception. He claims that the mother was the one who was the aggressor, and that he had CCTV footage to back up his claim.
Nevertheless, the mother filed an application for a protection order at the Southport Magistrates Court on 31 October 2017, about two weeks after these events. The order was granted and X was named on the order. About three weeks later, the father filed an application to vary the order so that X would be removed from the order. That application was either withdrawn by the father or dismissed by the Magistrate. On 23 January 2018, the protection order was made on a “without admissions” basis and it is in force until January 2023.
The time spent by X with her father since separation
After the parents had separated in 2016, the father was diagnosed with bowel cancer and was in and out of hospital for over four months receiving treatment. The mother took X to the hospital “almost every day” to visit the father.
By April 2017, the father’s health had improved and he returned home. The mother had said that the father could spend time with X one day a week but she did not want him spending overnight time with the father. The mother said that the father demanded more time with X and often refused to return X to her. The mother said that she eventually acquiesced and X started spending time with the father each week from after school Wednesday until 5.00pm Saturday.
After the domestic violence order was made, the time arrangements changed. The mother would not agree to any overnight time and insisted that any time that the father spent with X would have to be supervised. The parents agreed on a parenting plan in January 2018. X spent time with the father according to that plan, which meant that his time with X was supervised by family members.
There is evidence before me that the supervision of X during these times was less than optimal, and on a number of occasions, almost non-existent.
An event occurred in April 2019, which led to the suspension, by the mother, of the father’s time with X. The mother justified this decision because of that particular event combined with the protection order and the lack of supervision.
History of this litigation
The father made an application in April/May 2019, again, to vary the protection order but withdrew that application within a fortnight of making it. In June 2019, the parties attended a mediation but there was no agreement reached.
On 18 July 2019, the father filed an initiating application in this Court seeking parenting orders. The matter came before me, in Southport, on 4 October 2019. On that date, I made an order appointing an Independent Children’s Lawyer (“the ICL”) and also ordered that the parties participate in a Child Inclusive Conference (“CIC”). The representative for the father made an oral application for an order for the father to spend time with X. I declined to make such an order.
The matter returned before me on 15 November 2019. On that date, I noted that the father, off his own bat, was going to follow up the recommendations of the CIC. The ICL was also obtaining material. I adjourned the matter, for mention, to 3 April 2020. Another oral application was made for the father to spend time with X. I again refused to make such an order.
On 3 April 2020, I noted the current state of the repercussions of the “event” and also the reports that had been filed. I set the matter down for trial commencing on 10 August 2020. Another oral application for an order allowing the father to spend time with X was made. I again refused to make such an order.
Possession of Child Exploitation Material (“CEM”)
In late 2012, the mother said that she was searching for the birth certificate of Ms B. The mother ended up looking in a filing cabinet drawer of the father. She said that she found five discs. These discs had the letters “XXX” written on them in a permanent marker pen. The mother said that she continued to look for the birth certificate but, within 30 minutes, became curious about the discs.
The mother said she removed one of the discs and put it into her computer. She said that on this discs she found videos and pictures of naked children, including babies. She said that she also noted adult pornography on the disc.
Mother said that soon afterwards her friend, Ms E, came over and noticed that the mother looked worried. The mother told Ms E what she had found. She said that the two of them then went to the filing cabinet and saw the other discs, together with a clip seal bag that had a pair of the mother’s underpants inside.
The mother and Ms E looked at the discs and came across more child pornography. (I note that Ms E has corroborated this part of the mother’s account.) The mother said that she did not know whether to take the discs to the police or not.
The mother said that she was disturbed by her discovery and began drinking heavily after this. She said that after she found these discs, she hid them each time she left the house and that the father was home. She said that she would hide them in a makeup case and she would place this makeup case on a shelf in the playroom where the filing cabinet was located. She said that when she came back home she would then remove the discs from the makeup case and put them back into the filing cabinet.
The mother said that she looked in the filing cabinet on another occasion and found 14 discs. She said that these discs also had several letter “X” on them also in marker pen. The mother said that she believed at this time, that these discs included the five that she would put in and remove from her make up case.
The mother said that she did not ever see the father look at the discs but she hid the discs so that the father could not look at the content while she was away and the father would be looking after X.
The mother said that, about six months after she had located the discs, she and the father had attended a 50th birthday party of the sister-in-law of the father. The mother said that they travelled to that party with the brother of the father and the brother’s wife. The mother said that she became slightly intoxicated at the party and that she and the father had a disagreement. They left soon afterwards.
She said that they continued their disagreement and during the argument she said to the father, words to the effect of “you are disgusting, you’re sick. It is illegal and you can go to jail”. She said that the father’s reaction was to tell her to shut up and feigned ignorance as to what she was talking about.
She said that when they arrived home, the father went straight to the drawer and removed the discs and her underwear. The mother said that she left the house and walked to the residence of Ms B’s father. She said that she told Ms B’s father that she had had an argument with the father and she also disclosed what she had found on the discs. (Ms B’s father, Mr F corroborates this but added that the mother told him that the father told her that the discs belonged to a friend of his. The mother cannot recall the father ever saying this to her but concedes that she was intoxicated during their exchange.) The mother also said that she called her own father that evening and disclosed to him what she had found.
The mother said that she thought that the father had rid himself of these discs as they were no longer in the filing cabinet. The mother did not think much more about these discs until she was about to go out one night and went looking for her make up case. She ended up finding her make up case in the place where she usually hid the case. It still had the five discs inside it.
The mother surmises that she had simply forgotten to put the five discs back in the cabinet one night (she thinks because she may have been intoxicated when she came back from her night out) and that when she saw the 14 discs that she assumed that these included the original five discs.
In any event, the mother said that she showed the discs to her friend Ms G around late 2014. She said that Ms G had come to visit because it was Ms G’s 40th birthday. She said that she showed her one of the discs. She recalls that Ms G had given her the impression that if there was adult pornography on the disc then the police might not do anything with it. (I note that Ms G corroborates that she was shown the discs but did not mention whether she had made any other comment to the mother).
The mother said that she also showed her father the discs. (I note that her father corroborates this).
Soon after this (which would be in 2015), the mother placed the five discs in a safe at her own mother’s house together with a note. She wrapped the discs and her note in a piece of paper which was then signed by her own mother that this was closed and sealed. She gave instructions to her own mother that if she (the mother) died, her mother was to open this package.
The mother said that she had, on a few occasions, obliquely referred to the discs when she would argue with the father. However, she said that she did not ever disclose that she knew exactly what was actually on those discs. She said that the father would always dismiss what she said by referring to the night of the disagreement and that the mother was drunk and didn’t know what she was talking about.
After the parents had separated, they had a discussion in mid-September 2017. The father said words to the effect that he wondered what went wrong with them, and, in particular, what had happened to the mother because she had not been the same the last few years. The mother said that she couldn’t get over the discs.
The father said to her “I told you before that those discs aren’t mine. I don’t know what was on them. Why didn’t you take them to the police?” The mother replied “ok then I will”. The mother said that the father was genuinely shocked. The mother believes that the shock was because he thought that he had discarded all of the discs and wasn’t aware that she had other discs in her possession.
She said that the father said “what you did that night is what an enemy would do”. He then said that “I won’t get in trouble as there is adult porn on there as well”.
It was the use of the words “as well” that alarmed the mother. She said that her indecision as to what to do with the discs stemmed from her wanting to believe that the father did not know what was actually on the discs. He had never admitted to her that he knew what was on the discs, but when he said that there was adult pornography on there “as well”, the mother believed that this was a confession that he knew that there was child pornography on the discs.
Very soon after this conversation, on 28 September 2017, the mother retrieved the discs from her own mother’s address and took them to the Suburb C police station.
The mother told the police that the writing on the discs, in marker pen, looks like the handwriting of the father.
The Investigation
The police analysed the discs and found that each of the discs contained CEM. In total there were 135 unique CEM images and 33 unique CEM movies.
The police executed a search warrant on the premises of the father on 20 October 2017. The police recorded their interaction with the father during that raid.
The father told the police that he had a CD with some porn on it. He told them that it was “just weird stuff” and mentioned that it had “amputees, blacks, dwarves etc”. He said that this was years ago and that it used to be located downstairs in one of his office files but he threw it away. He said that he threw it away because he “was just not interested”.
He said to police that the mother saw it and went off her head one day when she was drunk. He said that they were coming back from a party in Brisbane and she started going on about pornography and that he said to her “what are you talking about”. He said that she was drunk and mumbling away and then she came home and was running around the neighbourhood stupidly and she went downstairs and it was not there. He said that that he told her “I don’t know when you saw it but I’ve thrown it away ages ago”. He said that it was one disc and it had been in the filing cabinet for up to 15 years and that it was time to clean it out. The father said that that was the only pornography he knew about and that he did not know what this police raid was all about.
In his conversation with the police, the father acknowledged that the disc he was speaking about was his and that there were no children on the disc. He said that there were Asians “like breastless etc” trying to “make out they were young but I doubt they were, it was just mainstream stuff”.
The father admitted to the police that he had gathered the material from the internet and burnt it onto a disc by downloading it from the internet. He said that he did not remember naming the disc or anything. The father said that the computer that he used to download the material would be “long gone” because the downloading occurred 15 years ago.
The police then asked the father whether he wanted to take part in an interview. The police told them that they were in possession of some discs that had CEM on them. The father questioned the fact that the police used the plural when referring to “discs”. The father said that he only had one disc and he had no idea where any other discs could come from. He made a comment that “they must’ve been from a lifetime ago”.
The police did seize material from the residence including a number of other discs that had handwritten labelling in marker pen.
The father attended the police station, with his lawyer, on 8 February 2018. The lawyer asked for the specifics of the allegations. The police gave those particulars and affirmed that the only material found that contained CEM were the five discs that were handed to them by the mother.
The lawyer queried whether the mother would be charged for having possession of the material and the police said that they looked into this aspect but concluded that it was not in the public interest to charge the mother. The police compared the current situation to a parent finding drugs in a child’s bedroom and holding onto those drugs for a couple of weeks.
The police confirmed that the father had mentioned one disc to the police and described the content of that disc. The police said that the content that the father described to them was actually found on one of those discs given to them by the mother. The police clarified that there were a number of discs that were seized from the premises of the father but there was no offending material found on those discs. The father refused to answer any questions and was then charged with possession of CEM.
I have seen the photographs of the five discs as well as photographs of the other material seized by the police. I have also seen the handwritten note of the mother. The other discs seized by the police have writings on them in a permanent marker. Some of the writings are “Mr Alberson self photos”, “AFL”, “Properties”, “Music Collection Vol 3” “personal”, “music 1”and “music 2”. See example below:
[images omitted]
The five discs (see below the photographs of four of the five discs) that contain CEM, have writings such as “XXX images 2”, “RIS mov”, “X movies full”, “XXX images 1” and “ 2 x mov”. The handwriting on these discs is extremely similar, if not indistinguishable with the other discs seized from the house of the father.
[images omitted]
Proceedings in the District Court
The father was eventually indicted in the District Court. His trial was to commence in early 2019.
The father had been represented and his representatives had been attempting to negotiate an acceptable factual basis upon which they could resolve the matter. It would seem that those solicitors had entered negotiations with the representatives of the Director of Public Prosecutions (“the DPP”) on the basis that the father was holding the discs on behalf of another person. Those solicitors then discontinued their representation of the father.
The father then retained a new solicitors firm to represent him in early 2019 and provided written instructions that he wished to plead not guilty and proceed to trial.
A month before the trial was to begin, the DPP contacted the new representatives of the father to see whether the negotiations would be continued. The new solicitors sought instructions from the father who told the new solicitors that he still wish to proceed to trial.
In early 2019, a pre-trial conference occurred between the father’s barrister (the very experienced Mr H) and the new solicitor. The options were given to the father together with an explanation of the strength of the Crown case. The father then gave instructions that he wished to enter a plea of guilty on the factual basis that he was holding the discs for someone else and had not viewed their contents though he was aware of what was on the discs.
The next day, the matter was mentioned before the District Court and the solicitor advised the Court that the father intended to plead guilty to the charge. The trial was then de-listed and the matter listed for sentence in mid 2019.
In mid 2019, the solicitor prepared the matter for sentencing. The father sourced and provided supporting material for the submissions that would be made on his behalf at the sentencing proceeding. A schedule of facts was drafted by the DPP and the solicitor and the father had input into that document. The agreed schedule of facts was settled in mid 2019.
In mid 2019, the father, his barrister and his solicitor had another conference at the courthouse. The father confirmed that he would be pleading guilty to the charge and he was taken through the agreed schedule of facts for a final time. The father communicated his agreement with that schedule of facts and signed written instructions to make a plea of guilty.
The father was arraigned before His Honour Judge J and pleaded guilty to the charge of possession of CEM. The schedule of facts was tendered to the Court. It is reproduced below:
v Mr Alberson
INDICTMENT
Count 1: Possessing child exploitation material
Section 228D Criminal Code
Maximum penalty: 14 years imprisonment
FACTS
1. The defendant rented a townhouse at K Street, Suburb C since 2008.
2. He commenced a relationship with Ms Elzares in 2008 or 2009. They resided together from early 2011. They share a daughter,… Ms Elzares has an older daughter from a previous relationship.
3. The townhouse comprised a children’s playroom and garage on the bottom level, living areas on the second level, and bedrooms on the third level. There were two filing cabinets in the playroom - one for Ms Elzares and one for the defendant. Neither cabinet was locked.
4. Between December 2012 and May 2013, Ms Elzares was looking for her eldest daughter’s birth certificate in the filing cabinets when she came across some CDs in the defendant's cabinet. Initially, she located five or six discs and then later she found 14 discs. They were titled 'XXX' with permanent marker pen.
5. A short time later, her friend Ms E arrived. She took Ms E downstairs to the filing cabinet and showed her the discs. At this time, she found more discs.
6. Ms Elzares found the images disturbing and began drinking heavily after this. She recalls hiding the discs each time she left the house so that the defendant could not view them when he was home alone with their daughter.
7. About six months after initially locating them, Ms Elzares 'blurted out' to the defendant what she had found and said, "You are disgusting, you are sick. It is illegal and you can go to jail."
8. The defendant told her to 'shut up and 'pretended' that he did not know what she was talking about. He went to the drawer in the filing cabinet and removed the discs and underwear.
9. Ms Elzares left the house and walked to her former partner's house nearby. She told him what she saw on the discs. Mr F recalls that Ms Elzares said she had found child pornography on the discs, including videos of ‘fathers doing stuff to their children’. Ms Elzares told him that when she confronted the defendant, he said the discs belonged to a friend of his.
10. After this, Ms Elzares thought that the defendant had disposed of the discs because they were no longer in the filing cabinet.
11. Over the course of some time, she and the defendant had become distant and he asked her what was wrong. She replied that she could not get over what was on the discs. The defendant said, “I told you before they aren't mine. I don’t know what’s on them. Why didn't you take them to police”. Ms Elzares said she would take them to police and the defendant appeared shocked as Ms Elzares had held on to some of the discs. He replied, “I won’t get in trouble as there is adult porn on there as well”.
12. In about late 2014, Ms Elzares’ friend, Ms G, came to the Region L for her 40th birthday. Before she arrived, Ms Elzares was looking for something in the playroom and found the previous discs that she had taken from the defendant’s filing cabinet. When Ms G arrived she showed her the contents of one disc. Ms G recalls viewing the child pornography.
13. Soon after this, Ms Elzares took the five discs to her mother’s house at Suburb M and put them in the safe. She retrieved them in September 2017 and reported the matter to police.
Examination of Discs
14. The subsequent examination showed CEM on each disc. The material was categorised below
Category
Unique CEM images
Unique CEM movies
1
64
7
2
6
6
3
15
1
4
50
18
5
0
1
6
0
0
Total
135
33
15. The majority of the images and movies are ‘date modified’ between the years of 2002 and 2009. The discs contain a range of photographs and videos of children, male and female, aged approximately six years to 14 years. They included naked children and suggestive posing, non-penetrative sexual activity between children, masturbation between children and adults, penetrative sexual activity between children and between children and adults including intercourse, cunnilingus and fellatio, involving children as young as six years old, and a video of urination between children.
16. Some of the titles of images and videos included ‘N’, ‘O’, ‘P’, ‘Q’, ‘R’, ‘S’, ‘T’, ‘U’, ‘V’, ‘W’.
17. The defendant attended Suburb C Police Station in early 2018, declined to participate in a recorded interview with police, was arrest and transported to Suburb Y Watchhouse. He was given watchhouse bail and appeared in the Magistrates Court in early 2018.
18. The defendant is to be sentenced on the basis that he knew there was CEM on the discs but that he never looked at the discs and was holding them for someone else. It is accepted that he did not create or download the material onto the discs.
On behalf of the father, his Counsel tendered a very short report from Dr Z, an oncologist from the Region L Hospital. That report stated that the father had “incurable Metastatic Colon Cancer”. The report stated that “prognosis is estimated at less than 24 months”.
Judge J sentenced the father to 9 months imprisonment wholly suspended for an operational period of two years. His Honour’s sentencing remarks are reproduced below:
HS HONOUR: Can you stand up. Please. Mr Alberson. Mr Alberson, you have been convicted on your own plea of guilty of one count of possessing child exploitation material. The facts are set out in the statement of facts which is before the court as exhibit 2. The material relates to what was found on certain discs which were analysed and. contained 135 unique CEM images and 33 unique CEM movies. The CEM images were in categories 1 to 4, and the unique CEM movies were in categories 1 through to 5. The discs contained a range of photographs and videos of children, male and female, aged approximately six to 14 years. They include, amongst other things, penetrative sexual activity between children and between children and adults.
Knowingly possessing such material is a serious matter and would often lead to a sentence of imprisonment, including actual time in jail. In your case, however, there needs to be certain matters taken into account. You are someone with a criminal history, but that history is dated and irrelevant. The matters which are of importance relate to the basis of the pleas and your physical condition.
It is agreed that you are to be sentenced on the basis that you knew there was child exploitation material on the discs that you were in possession of, but that you never looked at the discs and you were holding them for someone else. Further, it is accepted that you did not create or download the material onto the discs. It seems that you ceased to be in possession of the discs in 2014 when they were taken by a person with whom you were then having a relationship and who subsequently reported the matter to police in 2017. It is not suggested that you were in possession of the discs for your own sexual gratification. Your possession was at the lower end of criminality in relation to matters such as these.
Your physical condition is also of relevance. You are currently undergoing chemotherapy for incurable cancer. You were first diagnosed with that incurable condition in 2017. The prognosis is estimated at less than 24 months. That terminal condition means that personal deterrence becomes of limited relevance given your life expectancy and it also means that any period of imprisonment would be a greater burden on you and would take away some of the precious time that you have left. The condition dictates a degree of leniency, although a sentence must be arrived at which is just in all circumstances.
Your counsel submitted that it would be open to the court to deal with you by way of probation with no conviction recorded. Whilst I accept the relevance of the matters that were put by him on your behalf I do not think that that would adequately reflect the severity of the offence. I do accept, however, that this is not a case where any actual imprisonment should be served and, accordingly, I sentence you to imprisonment for nine months wholly suspended for an operational period of two years. What that mean is that you won't have to serve the time of imprisonment as long as you do not commit another offence punishable by imprisonment within the two-year operational period. If you do, you'll be brought back to court and the starting point will be that you have to serve the suspended imprisonment unless you can convince the court it would be unjust to do so. I’m sorry to call you back. It occurred to me that I had forgotten to mention the plea of guilty. I should say that I did take account of the plea of guilty in formulating the sentence which I did and which included no actual custody.
A consequence of the conviction is that the father is subject to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (QLD). This means that the father is subject to the provisions of this Act until mid 2024 and he must report any contact that he has with children (pursuant to s.9A of that Act) until that date.
Queensland Court of Appeal
In mid 2019, the father appealed his conviction. His grounds were that he was very tired and emotionally worn out with bad health and that he said “okay get it over and done with so I can move on and all I could think of was to get my daughter back”. He said that he “was pressured into pleading guilty with no discussions as to pleading not guilty”.
The appeal was heard by the Court of Appeal in early 2020. The Court considered what the father told them, in that he complained that he was intimidated and not told the consequence of pleading guilty. The Court did not accept the evidence of the father and preferred the evidence of the solicitor. The evidence of the solicitor was supported by contemporaneous handwritten diary notes of the conferences and signed documentation from the father confirming his instructions.
The solicitor said that the father had been shown the three main areas of weakness; firstly, that he had admitted to the police about his knowledge of the contents of the discs; secondly, that the handwriting on the discs looked very similar to that of the father; and, thirdly, the inherent difficulty in accepting the father’s explanation for how the discs must have come to the attention of the police.
Having looked at the brief, which is annexed to the affidavit of Mr AA, the observations made by the solicitor are both obvious and telling.
The Court also noted that the father first gave the instructions to plead guilty in early 2019. From that time, he did not waver from those instructions, and indeed, obtained material for his sentencing (the report from his oncologist). The father had input into the statement of facts which was settled the afternoon before the sentencing. On the day of sentencing, the father confirmed his plea of guilty after going through the schedule of facts.
Looking at all of those circumstances the Court was satisfied that the father made a free choice to plead guilty and the appeal was dismissed. The decision is reported as v Alberson.
Evidence in this trial
Notwithstanding the history I have outlined, the father insisted, in evidence before me, that he was not guilty of the offence of possession of CEM. He maintained his innocence and explained that he did have, at one stage, a disc that contained “weird pornography” but it did not contain any images of children. He said that this disc was thrown out by him quite a number of years ago. He said that this disc was not the disc that police had. Even though he told this tale, he said that this tale had no relevance to the charge of possession of CEM.
When the father spoke to the family consultant, Ms BB, for the purpose of a Child Inclusive Conference, he denied possession of CEM and said that the discs were either left by an old house tenant or placed there by the mother due to her access to people’s houses through her cleaning jobs.
When the father spoke to the family report writer, Dr CC, he said that, after the mother had made her drunken accusation, he went to the cabinet and found one old disc. He said that he knew that it had deviant pornography on it but there were no images of children. He said that he threw that disc out. He said that he thought he got the disc years ago from other men after they were celebrating a football win.
In evidence before me, he denied that he had downloaded any of that material, contrary to what he had told the police. He testified that there was a celebration after a football win at his home. He said that he remembered coming into the room and that this disc was being shown on the TV in the background. He said that he did not know where it had come from and whoever had brought it to the celebration, left it with him. He said that this occurred in the 1990s.
He said that the mother must have found those discs when she was working as a cleaner. He said that the mother often brought material home that had been discarded by tenants who had left the premises that the mother subsequently cleaned. The father gave instructions to his Counsel to put to the mother, in cross examination, that the mother had “planted” the five discs to frame him for the offence of possession of CEM.
Consequences of the Conviction
As alluded to earlier in these reasons, the conviction for possession of CEM was the reason that the mother stopped X having contact with the father. The mother, in not so many words, reasoned that once there had been a conviction entered by the Court (and therefore the presumption of innocence was no longer applicable), X was not safe with the father.
Whilst it would be understandable for the mother to feel this way, it is the duty of this Court to decide whether the father is an unacceptable risk to X. The fact of the conviction, and subsequent dismissal of an appeal, does not mean that this Court is relieved of the duty to look at all of the circumstances surrounding the allegation of the father possessing CEM. This is especially so when the father has denied before this Court that he ever was in possession of CEM.
Other areas of concern
The mother has grave fears that X is being groomed by father. The mother recalls that before the parents had separated, X socialised with DD and EE, two girls of about the same age who lived in close proximity.
The mother recalls, on one occasion, coming home from work and finding the father sitting downstairs with X and the two girls. She said that the father was sitting on the couch and he had the two girls sitting on one side of him and X on the other. She said that the father had his arms wrapped around the three girls. She said when she entered the room, the father quickly removed his arms.
The mother recalls another occasion, shortly before the separation, when she was standing outside after the two girls went home. She said that X came up to her and said “why don’t you give them a hug and kiss like daddy does?” The mother said that she was shocked by this and told X that “we don’t normally give hugs and kisses”.
The mother also discovered that, following separation, at times when X was having overnight stays with the father, she was sleeping in the father’s bed with him, notwithstanding that she had her own room.
These concerns were exacerbated by the evidence of Ms FF. Ms FF met the father in early 2019. Ms FF has a son, GG, and they regularly take their dogs for a walk in the local park. On this particular day, GG was wearing his school uniform. Ms FF said that the father approached her saying that he had a daughter at the same school. She and the father continued their conversation and realised that GG was in the same grade as X at school.
She said that because she had recently purchased her unit at Suburb C and that the father was working in a local business, they exchanged phone numbers so that the father would be able to text her whether he believed that she purchased her unit at a good price.
Ms FF provided an affidavit where she detailed the times that she had come into contact with X and the father. The purpose of her affidavit was to describe the level of supervision that she observed during these visits.
However she did also speak of the unusual behaviour of the father in constantly touching GG by hugging him, rubbing his head and tickling him under the arms and around the stomach. She noted that the father did this to other children at the park as well. She said she also noticed the father taking photos on his mobile phone of other people’s children playing in the park and that he was not asking the permission of the parents before doing so.
In evidence before me, she testified that, on one occasion, the father of a child approached the father after seeing the father take a photograph of that child and demanded that the father delete the photograph. She also testified as to attending a music event called “Suburb C Live”. She was there with her young nieces and GG. She saw the father in the crowd. Whilst the number of people had their phones out and were photographing or recording the musical acts, the father appeared to be taking photos of Ms FF’s nieces. She positioned herself in front of her nieces so that the father could not take photographs of them.
After the mother informed Ms FF of the conviction, Ms FF distanced herself from the father and has avoided contact with him.
Observations of the Father giving evidence
The father maintained that he was no danger to X. He described himself as a loving and caring father who only wanted the best for his daughter. He kept referring to the fact that, following separation, he had unsupervised time with X and that there had been no problems. He did not think that anything had changed since then and that the behaviour (which he denied as being criminal) that led to the conviction had already occurred by the time X had unsupervised time with him. He said that he cannot understand why it is that he cannot spend time with his daughter.
Although he tried to be consistent in maintaining that he only ever had possession of one disc that contained pornography and that he had thrown the disc out some years ago, he was very inconsistent in the peripheral aspects of his tale. He could not satisfactorily explain why the agreed statement of facts talked about him “holding onto the discs for another person”. The ICL had asked the father to tell them who this person was. The father seemingly ignored this request and attempted to explain away the matters in the agreed statement of facts which did not suit him, as something he agreed to under pressure.
I watched the father closely as he gave his evidence. His demeanour was such that he wanted to dogmatically stick to his version no matter what was put to him. He became nervous and “twitchy” as he tried to explain matters going to the periphery of his story. It was clear to me that he was not recounting a “lived experience” but rather a tale that he had tried to convince himself was true.
His explanation for X sleeping in his bed was that X was not comfortable with the flatmate of the father sleeping in the house and so wanted the security of having her father sleep with her. That explanation does not have the ring of truth to it and, as the father was giving it, it was almost as if the father was trying to convince himself of this.
The father’s explanation revolving around what the mother had seen with DD and EE was also not believable. The father accused these two girls of being the instigator of affectionate contact claiming that “they hugged me, not I hugged them”.
The father gave evidence that whilst he did not accept the decision of the Court of Appeal, he would accept, and obey, any decision that I made.
It turns out that, despite my declining to make any orders that the father have contact with X, the brother of the father was facilitating such contact. I do note that the evidence is that the brother was in Court when I declared that I would not be making any order. The mother allowed the brother to come to her residence on 13 May 2020 so that he could give the child birthday gifts, some of which were from the father.
Whilst the mother was not in the area, the brother phoned the father and then put the phone in X’s hands so that she could speak to the father. I asked the father specifically about this, and why he would talk to X knowing what I had said. He did not answer my question and instead attempted to minimise his conduct.
I do not accept that the father is a witness of truth. I certainly cannot accept his evidence unless it is strongly corroborated by other evidence.
Observations of the Mother giving evidence
When I read the affidavit of the mother, especially concerning the circumstances of the CEM charge, I was very sceptical. I initially found it difficult to understand why it was that the mother waited so long before informing the police. I was also concerned with the number of persons to whom she had shown the material. My concern was such that, at the beginning of the trial, I immediately told the Counsel for the mother that I would have to issue a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) because of the contents of the mother’s affidavit.
I listened and I watched the mother quite intently as she gave evidence. She convinced me as to the truthfulness and sincerity of her actions. Having heard the manner in which she gave her evidence, I am satisfied that she truly loved the father. Having found the CEM, her world was quite shaken. She sought counsel from her friend, Ms E but Ms E did not give her the direction that she craved.
I accept that the mother was clinging to some form of hope that the father was not watching these discs or that he did not know what was on those discs. By removing the discs and putting them into her make up case and then returning the discs, the mother was trying to make sense of her world where she was still protecting her daughter and not doing anything that would be prejudicial to the father, whom she loved.
Until it was that the father “admitted” that he knew what was on those discs, the mother could continue to justify what it was that she was doing. It was only when she knew that the father knew what was on those discs that she realised that she had to take some decisive action.
Whilst I accept and understand what the mother has done, objectively she did not behave appropriately. It was her duty to protect her child and she failed. During her evidence, it seems to me that this fact finally dawned on the mother and she realised that it was her duty and responsibility to have reported this matter to the police immediately upon the discovery of the material.
Nevertheless, I accept the mother as a witness of truth.
Is the father a risk? - Report of Mr AA
After the parents had attended a CIC, the recommendations of Ms BB included that the Court should receive further assessment to help determine the level of risk that the father posed. On the mention of the matter before me on 15 November 2019, after the release of the CIC memorandum, the father, through his representatives, told the Court that the father would, at his own expense engage Mr AA as an expert to assess risk.
The report of Mr AA is contained in an affidavit sworn 16 January 2020. Mr AA had all of the material that had been filed up until then, including the full brief of evidence for the CEM charge. He did not have the judgement of the Queensland Court of Appeal.
Mr AA conducted a number of tests so as to provide as great an all-round assessment has he could. Mr AA stressed that no risk assessment, no matter how carefully evaluated, could ever be an absolute predictor of whether a given individual will, or will not, offend in any particular situation. The risk assessment can offer defensible guidelines and practical suggestions for appropriate management of actually identified risk factors.
Mr AA said that he could not detect any of the critical, psychosexual areas of assessment, interest which included particular paraphilia, limited capacity for empathy or poor impulse control behaviours. However, Mr AA did detect a few, likely cognitive distortions on the part of the father. Those distortions remain inconclusive in respect of the attitude of the father regarding the child’s capacity for sexual consent and/or interest in sexual activities with adults. It was also inconclusive in respect of particular beliefs concerning inappropriate sexual behaviours and boundaries involving children.
In the end, Mr AA could not reasonably make a finding that the father was a “low risk”. Conversely Mr AA could not reasonably make a finding that the father was of “high risk” either. Mr AA said that a “moderate risk” rating was reasonably justified from an actuarial approach. He said that this means, as far as he was concerned, that the father was gauged as unlikely to offend under conditions of continuous supervision; however he may plan to offend, or attempt to offend, in the absence of supervision over lengthy periods of time.
Mr AA said that, if there were supervised contact arrangements, particularly if it were a commercial service, such would be suitable to manage the level of risk that he has assessed.
Mr AA also said that the father could benefit by voluntary attendance upon a suitably experienced practitioner for further support and targeting levels of distress. Mr AA gave an opinion that the father minimises levels of distress he experiences related to the protracted nature of court proceedings and also his medical diagnosis.
Mr AA said that a reduction of the rating from the current “moderate risk” could not reasonably occur unless, and until, the results of the Court of Appeal was known as well as there being a treatment summary report made available by a treating professional.
When Mr AA gave evidence before me, he was given a copy of the judgement of the Court of Appeal as well as any other material that have been brought to the Court since January 2020. None of that material changed the conclusions that Mr AA had made.
I accept the evidence of Mr AA. It is logical and it follows a clear path of reasoning. There was, in effect, no true challenge to the conclusions that have been made by Mr AA.
The father gave evidence that he had seen a psychologist, Mr HH, who had seen him on five occasions. The father gave evidence that there was no need to see that psychologist anymore and that there was no need for any further psychoeducation. Unfortunately, the Court was not provided with any treatment summary, but given what the father has said, it does not seem that the matters identified by Mr AA in his report have been addressed.
The Family Report
The Court was greatly assisted by the family report compiled by Dr CC. Dr CC conducted thorough interviews with the mother, the father, Ms B and, most importantly from my view, X.
X presented to Dr CC as a positive, delightful and engaging nine-year-old girl who was obviously intelligent and had an above average vocabulary. Dr CC described her as well adjusted both emotionally and physically. She said that X showed no indications of suffering negative consequences from her parents’ separation or the events surrounding the criminal charges of the father.
Oddly enough, the greatest memory that X had of being in her father’s house was playing with her dog. Dr CC noted that X began to cry when she recalled her dog and stated that she missed the dog very much. Regarding her father, X found it difficult to recall but said that she sometimes thought she had fun with him. She added that often it could be boring when with her father because there was mostly adults around.
Dr CC reported that X seemed genuinely ambivalent about the relationship she had with her father. Dr CC said that X did not demonstrate strong opinions regarding her father and, while she was aware that she had not seen her father for a long time, she did not have any stories or understanding as to why this was the case. Simultaneously, she appeared content with the arrangement. She said that she knew that her mother and father were not friends but did not know why this was so.
Dr CC opined that X was authentic and spontaneous in her responses. She demonstrated an innocence in regard to her parents and family members that was childlike and age-appropriate and, most interestingly, uncontaminated by her parents’ conflict, the events surrounding their separation and her father’s recent criminal convictions.
Dr CC noted that there was no indication that X had been exposed to complex adult concepts or parental conflict. Dr CC noted that the mother was the biggest support and had the most significant impact on X’s emotional and physical well-being. Dr CC noted that the mother has managed to support her to continue to develop without being emotionally contaminated by the adult events that have occurred in her family.
In her report, Dr CC recommended that the father have supervised contact with X.
When she gave evidence before me, Dr CC was informed as to the attitude of the father as to his convictions. Dr CC put that attitude together with what had been reported on by Mr AA and considered that the father was still a moderate risk. She said that she based this totally upon the report of Mr AA.
But Dr CC was quite concerned about the attitude of the father to psychoeducation and the recommendations of Mr AA. She said that she was concerned about the “authenticity” of the father’s attendance upon the psychologist. If the attendance were simply to “tick a box”, then there is no fulfilment of what it is that is required for the risk to be minimised. Dr CC said that, in her opinion, there should not be any contact by the father with X until there had been some evidence of actual fulfilment.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made in these Reasons and how they apply in determining what parenting orders are most likely to promote the best interests of X.
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
a) The benefit to the child of having a meaningful relationship with both parents; and
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
a) It is important to X that she has a meaningful relationship with her mother, however, I am not convinced that it is important to her that she has such a relationship with her father, and
b) There is a need to protect X from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
a) The mother has been the main support for the child. She has acted protectively once she has been in possession of relevant facts. The father has failed to understand the consequences of his actions upon the development of the child. It is also instructive that X displayed more emotion when speaking of the separation between her and her dog than of the separation between her and her father; and
b) Given the history of the father’s actions which led to the conviction for possession of CEM, the family violence that has occurred and the father’s lack of insight into the consequences of his offending upon the child, there is a need to protect X from being exposed to sexual harm and psychological harm.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X. Having made the findings that I have, s.60CC(2A) does have relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:-
a)Even though X is still quite young, I do note what Dr CC has said about the ambivalence of X to her father. Whilst it is always positive for a child to have a relationship with their father, this can only be done if such a benefit outweighs the risk;
b)I have spoken of the nature of the relationship that X has with her parents. I have also taken into account the relationship that X has with the mother’s current husband, Mr JJ, and the positive effect he has had in her life;
c)I have taken into account that the father has wanted to communicate with X, spend time with her and participate in major decisions. It is not for lack of desire on the part of the father that this has not occurred;
ca)I have taken into account that the father is not in a good financial state but he meets the meagre payments asked of him by the child support agency;
d)I have looked at the effect of any changes to X. But I have ensured that her safety is the number one priority;
e)I have looked at this aspect and especially the fact that, if professional supervision were needed, such supervision is expensive. I have taken into account that the father is not “flush with funds”;
f)This circumstance has been a major one for me at which to look, mainly because of the attitude of the father to the matters for which he was convicted. I have also looked at the manner in which the paternal family (particularly the brother of the father and the niece of the father) have approached their responsibilities to X;
g)I have looked at all of the circumstances of X, especially her age;
h)This aspect has no relevance in this particular case;
i)This circumstance is one that overlaps with previous circumstances. I have taken into account how each of the parents have exercised their responsibilities towards X;
j)I have taken into account the family violence and also the evidence of the father as to, what he says is, the proper context;
k)I have taken into account that this order was made on a “without admissions” basis. I have also looked at the application the father made, and then withdrew, so as to have an idea of the context of the order;
l)The orders that I make, are orders that I believe are least likely to lead to further proceedings; and
m)I have taken into account all circumstances that I believe are relevant to this matter.
Parental responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, having regard to the findings I have made, the presumption does not apply.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.
Contentions of the father
Notwithstanding that there has been a great deal of concentration on the factual circumstances that surround the conviction of the father for possession of CEM, this trial is not a rehash of those matters. The focus of this Court is solely upon the best interests of X.
The father has made an impassioned plea and has implored the Court not to cause a “tragedy which would undoubtedly be the consequence if the Court ordered that the father spend no time with the child”. The father has claimed that he was a good father and was devoted to X. The father contends that it was not his fault that the relationship broke down and that the best interests of X were to have an almost equal time arrangement with him.
The father has said, in not so many words, that he was the victim of cruel circumstance at best, or a victim of a malicious plot at worst, but that the truth of the matter is that he has no interest in CEM and is no danger to any child, let alone X. The father has contended that he was not responsible for any violence to the mother and that CCTV footage shows the mother’s terrible behaviour in late 2016.
The father contends that, despite a promising health report, he is still an ill man whose time on this earth is limited. He has contended that, for the sake of X, she should have fond memories of contact with her father.
The father contends that, as he is no danger to X, he should have equal shared parental responsibility. He contends that there is no reason why he should not have overnight time with X, or, at the very least, unsupervised time. There was a concession made by his Counsel that if the Court did not come to a conclusion that unsupervised time was appropriate, that the father have supervised time with X.
Conclusions on the evidence
As previously detailed, I have accepted that the mother was devoted to the father, and that her discovery of the CEM turned her “whole life upside down”. On the evidence before me, I conclude that the father was in possession of the five discs that contained CEM. The explanations of the father were not credible, he knew of the content of one of the discs and an examination of the handwriting on the discs is extremely similar to the handwriting on the discs that were definitely those of the father.
The father’s attempt to blame the mother is despicable. To suggest that the mother “planted” this material is totally contrary to the objective evidence. For the father to make such a false suggestion, amounts, in my view, to evidence of a “consciousness of guilt”. It also is a very telling point to what the true character of the father really is.
The father made his Counsel put, as a positive proposition, that the mother was responsible for the discs and fabricated evidence against the father. As scurrilous as such an accusation is, it cannot logically stand with the evidence of Dr CC who has praised the efforts that the mother has made to keep X “uncontaminated” from the issues between the parents. The father is asking the Court to find that the mother is so evil, she would falsify evidence against him, yet go out of her way ensure that the child did not have a negative view of the father.
The concerning evidence that was given by Ms FF coupled with the evidence of the mother concerning the young girls, DD and EE, is also extremely relevant.
When those factual matters are then seen through the prism of the evidence of Mr AA, the conclusion that the father is a “moderate risk” is not only logical, but overwhelming.
I cannot conclude that the best interests of X are served by the father having any say over the major decisions that have to be made in relation to the education, health, religion or living arrangements of X. On this evidence, I cannot see how the parents could effectively communicate with each other on such issues.
The best interests of X are served by her mother having sole parental responsibility.
The lack of insight of the father is such to justify the final recommendation of Dr CC when she said that there should not be any contact between the father and X until there had been demonstrable progress on a change of attitude by the father. Given his evidence in these proceedings, and his attitude from the time that he was charged until the present time, it is very difficult to see that there will ever be any change in his attitude.
If there is no true change in the attitude of the father, I cannot see any benefit to X in having contact with her father. Moreover, there is an unacceptable risk to X of sexual harm and psychological or emotional harm if she does spend time with her father. I do not believe that long-term supervision mitigates this risk to the point where it is no longer unacceptable.
Whilst it may be that the lack of time that the father spends with X will be seen by the father as “tragic”, the best interests of X dictate that I order that she spend no time with the father.
Having come to these conclusions, I will make the orders that have been submitted by the ICL. I will include an order for the issuing of a passport as requested by the mother. There was no argument by the father against such an order. Even though I am not sure that such an order is needed when a parent has sole parental responsibility, I will still make such an order out of an abundance of caution.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 26 August 2020.
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