Beacon and Beacon

[2016] FCCA 3372

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEACON & BEACON [2016] FCCA 3372

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9 & 7 – applicant father seeks to spend overnight time with children – mother opposed to anything other than daytime periods – allegations of pornography addiction – meaningful relationship – protective concerns – assessment of risk – is risk unacceptable – best interests.

Legislation:

Family Law Act 1975, ss.4, 11A, 60B, 60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
M & M (1998) FLC 91-979
N & S and the Separate Representative (1996) FLC 92 - 655

Applicant: MR BEACON

Respondent: MS BEACON

File Number: ADC 3847 of 2016

Judgment of: Judge Brown

Hearing date: 19 December 2016

Date of Last Submission: 19 December 2016

Delivered at: Adelaide

Delivered on: 20 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Childs

Solicitors for the Applicant: Weatherley & Associates

Counsel for the Respondent: Ms Dickson

Solicitors for the Respondent: Doman Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The children X born (omitted) 2007 and MR BEACON born (omitted) 2009 live with the mother.

2. The said children spend time with the father as follows:

   (a)On Sunday, 25 December 2016 from 10:00am until 5:00pm;

   (b)On Thursday, 29 December 2016 from 10:00am until 5:00pm on Sunday, 1 January 2017;

   (c)On Thursday, 12 January 2017 from 10:00am until 5:00pm on Sunday, 15 January 2017;

   (d)On Thursday, 26 January 2017 from 10:00am until 5:00pm on Saturday, 28 January 2017;

   (e)Thereafter on alternate weekends during school terms from after school Friday until the commencement of school Monday (or Tuesday in the event Monday is a public holiday) commencing on 10 February 2017;

   (f)On Sunday, 16 April 2017 from 10:00am until 5:00pm on Monday, 17 April 2017; and

   (g)On Wednesday, 26 April 2017 from 10:00am until 5:00pm on Saturday, 29 April 2017.

3. The children are to be exchanged between the parties at a location as can be agreed between them and failing agreement to be at the home of the paternal grandparents when the children cannot be otherwise exchanged at school.

4. The father is restrained and an injunction issue restraining him from exposing the children to any adult material on the internet or viewing any adult material whilst the children are in his care.

5. The father remove all computers, including laptops, from his home during any period of time the children are in his care.

6. The parties exchange between them in a communication book any necessary information regarding the children’s health, sleeping patterns, school activities, dietary requirements or any other relevant information in relation to the children.

7. The parties are to inform the other forthwith of any medical or other emergency pertaining to the children.

8. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 March 2017.

9. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

10. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

11. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

1. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. Further consideration of the matter is adjourned to 1 May 2017 at 9:30am for directions NOTING if the matter has not resolved a final hearing will be allocated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3847 of 2016

MR BEACON

Applicant

And

MS BEACON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The case came before the court yesterday on a busy day in the lead up to Christmas.  In those circumstances, there was insufficient time to deliver the necessary reasons and the matter was adjourned until this morning.  There has not been time for a written judgment to be prepared.  In advance, I apologise to all concerned for the burden which arise from listening to these orally reasons which necessarily will take some time to be delivered.

2. The proceedings themselves are concerned with interim parenting arrangements for two children.  They are X, born (omitted) 2007 and Y, who was born (omitted) 2009.  The parties to the proceedings are X and Y’s parents – their father Mr Beacon and their mother Ms Beacon.

3. By way of background, the parties married on (omitted) 2006.  They separated in what appear to be difficult and traumatic circumstances on 23 September 2016, when the mother and children left the parties’ former family home in (omitted).

4. The case is concerned with what are the appropriate arrangements for the children to spend time with their father.  There is no controversy that the two children should continue to live with their mother who has been their primary provider of care. 

5. Mr Beacon seeks to spend extended block periods of time with the children in the forthcoming school holidays and, when school resumes, overnight on weekends during school terms from Friday afternoon until the following Monday morning. 

6. The mother’s position is that such a regime has the potential to put the children at significant risk.  She is vehemently opposed to there being any overnight time at this stage or for the foreseeable future.  It is her proposal that the father should spend approximately seven daylight hours with the children throughout the school holidays and on weekends when school terms have resumed. 

7. The reason for her position is that it is her case that the father has an addiction to pornography and, as such, there is a significant risk that the children will be exposed to this material in future whilst spending time with their father, particularly overnight. 

8. It is her belief that the children have accessed this material in the past, although she is uncertain precisely how this has occurred.  In these circumstances, she asserts that the father poses a risk to the children.  It is implicit in her case, I think, that this risk is greater at night time rather than during the day, as it is her position that it was at night that the father habitually spent time on his computer.

9. Accordingly, this case is concerned with the assessment of risk at an early stage of proceedings where the relevant evidence is, as yet, not fully tested and may also be incomplete.  At the interim stage, the hearing before the court necessarily takes place in a truncated form which does not allow for any cross examination.  Accordingly, it is difficult for the court to make findings of fact if the evidence then available is controversial.

10. In addition, at this stage, I do not as yet have any extensive assessment of the psychological needs of the children concerned and any independent and objective assessment of the nature of their relationship with each of their parents.  It is common in cases concerning arrangements for children that either the court or the parties themselves commission an expert to prepare a family report.  Such reports are usually invaluable for the court in determining what the appropriate arrangements for children are. 

11. Given the urgency of the current situation and the recent nature of the parties’ separation, there has not yet been time for such a report to have been commissioned.  Against this incomplete evidentiary background, the court must assess the degree of risk and put in place a response proportionate to that risk. 

Background

1. The parties are both religious people.  They are members of the congregation of (omitted) in (omitted).  The parties met through their religious affiliations.  In the past, Mr Beacon has been a (occupation omitted) at several of the churches which the parties have formally attended.  At present, Mr Beacon is a self-employed (occupation omitted) earning approximately $50,000 per annum, although he has to pay expenses from this sum. 

2. Ms Beacon is a part time (occupation omitted) who works at a (employer omitted) in Adelaide.  She earns approximately $35,000 per annum.  The children currently attend (omitted) School.  As I understand it, Ms Beacon’s wages are utilised to pay the children’s school fees.  Accordingly, the parties’ separation is likely to have created great financial pressures on the family.

3. X suffers from epilepsy.  As I understand her condition, it was diagnosed when she was quite young and is quite serious in its nature.  Y suffers from asthma.  The children require regular medication. 

4. It is Mr Beacon’s case that during the parties’ marriage, he was significantly involved in the children’s care.  It is his position that he regularly gave the children their medication and was involved in dropping the children off to and from school.  It is his case that he regularly attended to settling the children into their beds at night time. 

5. Because Mr Beacon is self employed, it is his case that he was able to arrange his work commitments around the children’s needs, particularly when they were ill.  It is his position that he regularly took the children to their medical appointments.  In addition, it is his case that he assisted the children with their school work and assignments in the evenings. 

6. In his affidavit filed in support of his application, the father paints a picture of the mother withdrawing emotionally from him during the relationship.  It is also his case that Ms Beacon does not enjoy particularly good health.  Significantly, he asserts that she is prone to making unfounded or exaggerated allegations of misbehaviour against both him and others with whom she has been previously involved. 

7. He describes his involvement with pornography in the following way:

   ·he asserts that he has not looked at pornography for over two years; 

   ·in the past, he has done some image searching but has not gone to any actual pornography sites;

   ·in this context, he asserts that the images he has looked at were legal in nature and, as such, there was nothing prohibited or illegal about what he did;

   ·it is therefore his position that what he accessed was nothing which any adult could have looked at in any film that was classified for adults; 

   ·he explains this behaviour on the basis that, at the time, he was under a lot of stress and felt that he was not receiving sufficient affection and understanding from his partner;

   ·he says that he accessed the sites late at night and never whilst the children were around. 

8. Specifically, in his affidavit,  Mr Beacon deposes as follows:

   “According to our (omitted) beliefs, I agree with the wife this was not right and acknowledge this was an issue for the wife.  At the time, I went to my church leadership to tell them and sought counselling with the wife as she viewed this as a breach of trust.  I put this behind me some two years ago.”

9. In these circumstances it is Mr Beacon’s case, I think, that the wife has either opportunistically or in some exaggerated fashion seized on this behaviour for her own advantage in these proceedings which he vehemently refutes constitutes any threat to the welfare of the children concerned. 

10. For her part, Ms Beacon disputes the father’s level of involvement in the care of X and Y.  It is her position that she has discharged far more of the parenting responsibilities for the two children concerned and at times Mr Beacon was a distant parent. 

11. In addition, she characterises Mr Beacon as being a controlling person, particularly in a financial sense.  She deposes as follows in respect of the father’s involvement with pornography:

    “The father’s significant interest in pornography was evident early in our relationship and became a source of tension between us.  However, after our daughter’s birth, because he became more consumed by this interest and he would stay up with me until X was settled and then go to his computer and stay up until the early hours of the morning.  After I asked him about this behaviour he admitted that he did have an addiction. 

    The father admitted at other various stages throughout the relationship that he had an addiction to pornography which he claimed to have developed when he was 12 years old.  He told me that it began when he had access to pornographic magazines as a teenager through a friend whose family owned a newsagent. 

    There have been a few recent occasions where I have been concerned that the husband is more careless about his behaviour, that the children may have been exposed to inappropriate material. 

    Y was looking at a picture in Jungle Book of a row of monkeys and the naked bottom of the young boy in the book.  Y asked me if I thought the picture was rude and commented that “Daddy doesn’t think that sort of thing is rude.”  On another occasion Y was in the lounge room playing and the TV was on in the background. 

    An advertisement came on showing a woman in a bikini with her bikini top off and stars covering her breasts.  Y said words to the effect, “Mummy, you think that’s rude, but Daddy doesn’t.”  I immediately turned the TV off. 

    Approximately two years ago the father and I attended upon a counsellor at (omitted) Counselling in (omitted).  We attended to specifically deal with the effect of his addiction to pornography was having on our family and our relationship.  His addiction was discussed at the first session and he admitted it but we did not pursue counselling further. “

12. The father has responded specifically to these allegations in his more recent affidavit filed on 14 December 2016.  He deposes as follows:

    “After X was born, I would spend time on my computer late in the evening into the early hours of the morning but was not viewing pornography.  I feel that the mother was paranoid that any use of a computer was viewing porn.  Later as our relationship became more difficult for a period of time, I did begin to view some adult material doing image searches, but not accessing actual pornographic sites.  This was not every night and not for hours on end as suggested by the mother.

    In October 2014 the mother asked me if I was looking at pornography and I was honest with her and said that for a while I had been looking at pictures.  She was upset and said she felt I had a pornography addiction and a computer addiction.  I agreed to see a counsellor together.  There was very little intimacy in our relationship and it had been that way for a long time.  We did see the counsellor together and raised these issues.”

13. Accordingly, in this case, there are many aspects of the evidence about which the parties more or less agree.  Mr Beacon acknowledges that he has looked at images on his computer which he concedes Ms Beacon would find distasteful and wrong and which was behaviour contrary to the parties’ mutually held religious views to a significant degree.  Ms Beacon does seem to assert that Mr Beacon has behaved in a hypocritical fashion.   

14. Where the parties disagree is precisely what Mr Beacon was viewing and for how long and how regularly he did so.  The mother, from her own knowledge or exposure to them, is not in a position to say what the exact nature of the images in question was.  I mean her no disrespect but she is likely to have a very low level of tolerance for such things.

15. It is Mr Beacon’s position that, although what he viewed would have been offensive to Ms Beacon personally, in respect of general community standards, the images were neither illegal nor generally unacceptable.  In addition, apart from what the children have said in general conversation, he submits that Ms Beacon is not in a position to say whether or not the children have been able to access or view the material obtained by him.  Mr Beacon himself refutes any suggestion that the children have been exposed to any of these activities.

16. The other significant area of the dispute between the parties is whether Mr Beacon was addicted to viewing these types of images on his computer in the sense that he was under a degree of psychological compulsion to go back again and again to his computer to access sites of a particular kind. 

17. Mr Beacon refutes this assertion.  It is his position that he had recourse to the material simply because he was unhappy.  It is his case that he was frank with the wife about this and he has ceased his use of it for a period of about two years.  In all these circumstances, Mr Beacon asserts that there is no appreciable risk to the children that he will expose them to pornography in his home if he spends time with them either in a daytime or overnight context. 

18. Yesterday Mr Beacon indicated, through his barrister, that he was willing to remove any laptop from his home if the children came to spend time with him.  It is also his case that the children are familiar with the former family home because obviously they have lived in it for very many years. 

19. Against this difficult and emotional background the parties agreed on the first return date of Mr Beacon’s application, that the children would live with their mother and spend time with their father each Saturday between the hours of 10.00 am and 5.00 pm, with the children to be exchanged at the home of the paternal grandparents.  An injunction was made restraining Mr Beacon from exposing the children to any adult material on the internet or viewing such material whilst the children were in his care. 

20. Significantly, on this date, the parties were referred to a family dispute resolution conference with a family consultant Mr Trevaskis.  This conference took place on 13 December of this year.  I was hopeful that the conference would assist the parties to reach some middle ground.  That has not proved to be the case. 

1. Pursuant to section 11A of the Family Law Act 1975, amongst other things, the functions of family consultants are to assist and advise individuals involved in proceedings before the court as well as assisting and advising the court itself in relation to such proceedings. 

2. As a consequence of this statutory function, the family consultant concerned, Mr Trevaskis, provided a memorandum to the court which was also released to the parties.  Under the heading “Risk of Abuse” Mr Trevaskis summarised the issues before the court in the following terms.

   “The only issue raised in this regard was Ms Beacon’s firm belief that Mr Beacon suffers from a pornography addiction.  Ms Beacon’s views were sought in relation to what would, in her view, constitute pornography and what would constitute addiction.  Her responses were very unclear.  Her belief on this issue appears to be based on Mr Beacon’s alleged self-description. 

   Ms Beacon reported that she had not seen the material allegedly viewed by Mr Beacon.  Ms Beacon was fearful that the children would be exposed or had been exposed to such material.  Ms Beacon’s information on this issue was also unclear. 

   Mr Beacon acknowledged, with seeming embarrassment, having viewed sexual material online.  He said that this was limited to images of naked women and that he had done so in the absence of intimacy within the marriage.  He denied having accessed material of a more explicit or graphic nature and denied having described himself as having an addiction.  He reported that he had not viewed such material for two years and strongly denied that the children had ever been or would ever be exposed to such material.”

3. In terms of the parties’ parenting relationship, Mr Trevaskis described the mother as being highly protective of the children.  I accept that this is the case.  I also acknowledge that necessarily being protective is part of the job description of being a parent. 

4. Under the heading “Future Directions” Mr Trevaskis noted as follows.

   “The current parenting issue in this matter is the allegation of addiction to pornography.  Assessment of this issue is beyond the scope of this limited assessment.  This limited assessment, however, does not provide information suggestive of addiction, i.e. compulsive behaviour, or of material beyond what is often described as “soft” pornography, or of the children having been exposed to such material.  The court will no doubt wish to be satisfied in relation to those allegations.” 

Legal Principles Applicable

1. I now turn to the legal principles, which I must apply in the case.  They are contained in Part VII of the Family Law Act 1975. In this, as in all cases to do with children, the best interests of the children concerned is the paramount or most important consideration [section 60CA]. 

2. In determining what is the best outcome for Y and X, I must consider the objects and aims of the family law legislation, as it pertains to the children. These are set out in section 60B. They include the following:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;  and

   b)protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

3. In essence, it is Mr Beacon’s case that the children will benefit from having a meaningful level of involvement with him.  It is his case that the children will not derive these benefits, if they only spend comparatively brief periods of daylight time with him. 

4. From the mother’s perspective, the overarching importance is for the children to be protected from coming to some form of psychological harm as a consequence of the father’s behaviour in respect of on-line pornography. 

5. More specifically, in considering Y and X’s best interests, I have to look to a list of matters contained in section 60CC of the Family Law Act 1975 and apply them as appropriate to the circumstances prevailing in the case. 

6. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and a longer list of what are termed additional considerations. 

7. The primary considerations pick up on the objects and principles of the Act. They are set out in section 60CC(2)(a) & (b) namely:

   a)the benefit to the child of having a meaningful relationship with both of the child’s 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.

8. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

9. However, although I must give primacy to protective concerns given the overall structure of the Act, I am not in a position to ignore the benefits which will likely come to the children of being able to interact regularly with their father.  It is a question of balancing these considerations with one another whilst remembering the necessity to “prioritise the safety of children in parenting matters”.[1]

   [1]  See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

10. It is Mr Beacon’s position that the children will benefit if they have a meaningful level of relationship with him.  From his perspective, those benefits will come if he has both sufficient time with the children and that time is of a quality which supports his relationship with the children. 

11. It is his case that he needs to interact with the children in a variety of contexts and settings, both fun times and more mundane occasions such as preparing breakfasts and meals for the children, putting them to bed, and generally seeing to their needs. 

12. No doubt, he is apprehensive that, if he only sees the children on weekends during daylight hours he will be relegated to a subservient or subsidiary role to the mother in discharging necessary parental responsibilities for the children and this will have the inevitable consequence of curtailing the benefits, which the children will derive from having a proper level of relationship with him.

13. Other specific criteria which relate to how the court is directed to consider how the best interests of any child concerned may be served are set out in section 60CC(3). There are fourteen such criteria which, as I indicated earlier, are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

14. These additional considerations centre on such matters as the views of the children concerned; the nature of the relationship the child has with his or her parents and other people who are significant to the child’s care such as grandparents or other relatives; considerations relating to the level of parental insight and capacity; and logistical issues relating to how time spending arrangements can be put in place. 

15. In this case, I have no evidence whatsoever regarding the views of the children concerned.  In general terms, I accept that the children have a significant level of relationship with each of their parents.  Although Ms Beacon is critical of the father’s use of pornography, it seems to me that both parties are committed to being the best possible parents they can be, and in general terms, both are able to discharge the responsibilities incumbent on being a parent.  It seems that the children’s health and educational needs are properly managed.

16. In general terms, subject to child protective concerns and the overall best interests of the children involved, the objects of Part VII of the Act and the principles underlying them place an emphasis on the co-involvement of parents in the lives and development of their children. 

17. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child or children concerned. 

18. This presumption is subject to rebuttal. The court is directed to apply it only if it considers that it has not been negated by other considerations specified in section 61DA. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.

19. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interest for his or her parents to have equal shared parental responsibility for their child or children. Significantly, at the interim stage the court has a discretion not to apply the presumption if it considers that it would not be appropriate to do so. 

20. If the presumption applies, pursuant to section 65DAA, I am required to consider the child or children concerned spending either equal time with each of their parents or, if that is ruled out, what is termed substantial and significant time.

21. Both such outcomes are subject to the satisfaction of two essential conditions. Firstly, such outcomes must be in the best interests of the child concerned, or be reasonably practicable to implement. The matters to be considered as to reasonable practicality are contained in section 65DAA(5).

22. The full court in Deiter & Deiter,[2] has directed that in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity for the individuals, particularly any child who will be potentially affected by it.  Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. 

    [2] Deiter & Deiter [2011] FamCAFC 82

23. Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis. 

24. The court is frequently called upon to assess all manner of potential risks arising for children concerned in proceedings coming before it.  These risks include exposing a child to a parent who is incapacitated by the consumption of drugs or alcohol; compromised parenting as a result of psychological illness or personality disorder; and possible risks relating to the exposure of a child to an angry and unpredictable parent.

25. In this case, the degree of risk I am required to assess is the risk of X or Y being exposed to pornographic material which may be accessed by their father which they will perhaps unwittingly come upon during any periods of time they are spending with him at the former family home, particularly at night time. 

26. Secondary to that risk is the risk that the father because of his use of this type of material will pose some form of threat to the children themselves, either because the children will come upon him when he is looking at this material or it will in some way distort his parental responsibilities towards these children. 

27. Against this risk I must also consider the risks that will arise for the children if a possibly beneficial relationship with their father is unnecessarily curtailed by the court taking an unduly conservative approach to time spending arrangements. 

28. The Full Court in the case of Slater & Light,[3]following a number of cases, including the High Court decision of M & M,[4] has expressed the task of assessing risk in the following terms.

    The nature of the risk is best expressed by the term “unacceptable risk.” It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

    [3] Slater & Light [2013] FamCAFC 4

    [4] M & M (1998) FLC 91-979

29. As indicated, this is a case concerned with balancing potential risk to the children with the benefits that are likely to derive for them from having a meaningful level of relationship with their father.  The mother places particular emphasis on protective concerns.  In this context, it is germane to consider the specific definition of abuse which is provided by section 4(1) of the Act. It includes:

    a)an assault including a sexual assault of the child;  or

    b)a person, the first person, involving the child in a sexual activity with the first person or another person in which the child is used directly or indirectly as a sexual object by the first person or the other person and where there is unequal power in the relationship between the child and the first person. 

30. In this case, in my view, there is no suggestion that the children will be directly used as objects of sexual gratification by the father.  The risk is of the children unwittingly coming on this material or that the children will view their father accessing it. 

31. In the case of N & S,[5] the late Fogarty J went to some length to explain what was meant by “the unacceptable risk test.”  He said as follows:

    The essential importance of the unacceptable risk question, as I see it, is in its direction to judges to give real and substantial consideration to the facts of the case and to decide whether or not and why or why not those facts could be said to raise an unacceptable risk of harm to the child.  Thus the value of the expression is not in a magical provision of an appropriate standard but in its direction to judges to consider deeply where the facts of the particular case fall and to explain adequately their findings in this regard. 

    [5] N & S and the Separate Representative, (1996) FLC 92 - 655

32. In my view, in this case there is no evidence that Mr Beacon has an addiction to internet pornography in the sense that he has a compulsive need to access this behaviour regularly.  Significantly, there is no evidence from Ms Beacon to indicate what is the precise nature of the material viewed by the father about which she is so concerned.  In this sense her fears are hypothetical to a significant degree.

33. The father categorises it as being the sort of material that anyone who is over 18 can view.  He denies that it is violent or aberrant material which would be distressing for any normal individual to witness.  It is his case that he had recourse to this material rarely and when he was unhappy. 

34. Ms Beacon herself is not in a position to say what it was.  It is her case that as a result of comments made by the children she is concerned that the children have seen this material.  In this context, she makes reference to the Jungle Book comment made by Y and his comment in respect of the lady in the bikini. 

35. In this context, I think it is germane to, again, refer to N & S and what Fogarty J said.  He said as follows:

    Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith as a result of misperception of information about their child or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation. 

36. I do not assert that Ms Beacon is deliberately fabricating allegations, but given the complex emotional topography between the parties, I consider that there is a risk that she has perhaps misperceived what the children have said to her and this has caused her to have a heightened level of concern.  There is no evidence that the children have acted out in any particularly unusual way or that their behaviour is not otherwise that of normal well-parented children. 

37. In these circumstances I have come to the conclusion that it would not represent an unacceptable risk for the children to spend time with their father in an overnight context. In my view, the benefits which the children are likely to derive from being able to engage with their father in a variety of contexts and settings far outweigh the risk which the children accidentally or inadvertently coming upon pornography represents. Significantly, I do not consider that Mr Beacon himself represents any degree of risk to the children in the sense envisaged by section 4 of the Act.

38. However, in this case, I do not think that it is appropriate, at this stage, for the presumption of equal shared parental responsibility to be applied.  In this case the parties are not communicating in a functional manner whatsoever.  They mistrust one another for a variety of reasons and for those reasons I believe that it is not appropriate for the presumption to be applied at this stage. 

39. Accordingly, I am not required to consider either equal time or substantial and significant time. Thereafter I am required to consider the various section 60CC factors to come to the result which I think will best serve the children.

40. I have no evidence in an expert sense that the mother will not be able to psychologically sustain the children spending overnight time with their father.  I accept that she is an anxious person by disposition and it is likely to be difficult for her to accept the children spending block periods of time with their father.  For those reasons, I am going to adopt a cautious approach. 

41. However, I do not think it would be in the best interests of the children for me to adopt the artificially constrained regime advocated by the mother.  In my view, it is likely to be helpful for the children that their relationship with their father be normalised after what must have been a very traumatic period of time for them, during which they have only had limited opportunities to interact with their father.  

42. I accept that there is a need for a family assessment in this matter sooner rather than later. I also accept that, due to the parties’ constrained financial circumstances, they are not in a position to fund the report themselves. I will order that the report be prepared pursuant to section 62G of the Act to be released to the parties on or before 31 March 2017.

43. The question then arises as to whether the proceedings should be fixed for final hearing.  Yesterday I inquired of the parties whether property proceedings were to be instituted.  Neither counsel was certain. 

44. In those circumstances, I will not fix the matter for final hearing at this stage to give the parties an opportunity to consider whether they do need to institute final property proceedings.  That will necessitate some adjournment of the proceedings.  I will adjourn the proceedings until after Easter 2017.

45. In those circumstances, it is necessary for me to put in place a regime of time for the children between now and around the middle of April.  I have come to the conclusion that I should allow Mr Beacon to spend periods of time, of about four days in duration during the forthcoming school holiday, and when school resumes, on alternate weekends from after school on Friday until the commencement of school the following Monday or, if that Monday is a public holiday, the following Tuesday. 

46. Yesterday neither of the parties addressed me about handover arrangements and in those circumstances I propose that the children should again be collected at the paternal grandparents’ home, unless the parties agree on another location or school is not available. 

47. I will continue the injunction that was made on 14 November but will extend it so to take the father up on his undertaking that he will remove all computers from his home.  In my view, this is a proportionate response to the degree of risk that the mother has articulated.

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

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       22 December 2016