BIGGS & SIMPKINS

[2020] FCCA 2285

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIGGS & SIMPKINS [2020] FCCA 2285

Catchwords:
FAMILY LAW – Parenting – whether the father poses an unacceptable risk to the child – where the father was convicted of possessing child exploitation material – where the conviction stemmed from a previous relationship involving a 16 year old child – where family violence has occurred – where expert assessed risk as “low” – where father contacted expert and witness in the week before trial – s.128 certificate – unacceptable risk of emotional and psychological harm.

Legislation:

Family Law Act 1975 (Cth), ss. 60B, 60CC, 60CA, 60CG, 65D, 61DA, 61DAB

Sex Offender Registration Act 2004 (VIC)

Applicant: MR BIGGS

Respondent: MS SIMPKINS

File Number: BRC 11077 of 2018

Judgment of: Judge Vasta

Hearing date: 6 August 2020

Date of Last Submission: 6 August 2020

Delivered at: Brisbane

Delivered on: 26 August 2020

REPRESENTATION

Counsel for the Applicant: Mr R. Slade-jones

Solicitors for the Applicant: Brooke Winter Solicitors & Advisors

Counsel for the Respondent: Dr M. Sayers

Solicitors for the Respondent: Feeney Family Law

Counsel for the Independent Children's Lawyer: Ms J. McArdle

Solicitors for the Independent Children's Lawyer: C M Bint Family Lawyers

ORDERS

1. That the mother have sole parental responsibility for the child, X born in 2017 (“the child”).

2. Except in the event of an emergency, the mother is to consult the father about decisions to be made in the exercise of her sole parental responsibility on the following basis:-

   (a)The mother will provide to the father in writing, notice of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;

   (b)The father will respond to the mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;

   (c)The mother will consider any feedback given by the father by reference to the best interests of the child;

   (d)The mother will inform the father, in writing, within seven (7) days of the decision she has made.

3. That the child live with the mother.

4. That the child spend no time with the father.

5. That both parents will keep the other informed of a postal address and an email address and shall advise the other parent within forty-eight (48) hours of any change occurring.

6. That the father be at liberty to send to the child on the occasion of her birthday and Christmas, cards and gifts with the mother to ensure that the cards and gifts are received by the child.

7. That the mother will provide to the father a report in respect of the child’s progress, development and any significant events in the children’s life, 6 monthly, such reports to include but not limited to a summary of the child’s activities, photos and any school report card received during that period.

8. That pursuant to section 11 of the Passports Act 2005 the child X born in 2017 be permitted to leave the Commonwealth of Australia.

9. That the requirement for the father’s signature on the passport application for the child X born in 2017 be dispensed with and an Australian passport issue for the child. 

10. That the child X born in 2017 be permitted to leave the Commonwealth of Australia alone or in the company of the mother, MS SIMPKINS.

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 Biggs & Simpkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Brisbane

BRC 11077 of 2018

MR BIGGS

Applicant

And

MS SIMPKINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders.  The father, Mr Biggs was born in 1978.  The mother, Ms Simpkins , was born in 1980.  The parents met through a web based dating app called “B” and met in person for the first time in 2016.

2. The parents began dating soon after that time, and while there is some dispute as to the extent of the relationship, it is uncontroversial that the parents did not ever live together as a couple, with the exception of a period with which I will deal later in these Reasons.

3. The relationship involved the parents getting together on weekends with the father staying overnight at the mother’s residence, or vice versa, on Friday and Saturday nights.  There were a number of other times that the parents would get together other than on weekends, but it would seem that this was somewhat sporadic.

4. In 2017, the mother fell pregnant.  It would seem that this was a planned pregnancy, notwithstanding that the parents were not living together.

5. X was born in 2017.  She is the only child of the parents and it is in respect of her that the parenting orders are sought.

History of the Relationship

1. The father lived at Suburb C and the mother lived at Suburb D.  The father worked at Suburb E on the weekends which made it easy to facilitate their contact at these times.

2. Once X was born, a decision was made that the parents would live together to try and give X a home with both the mother and father.  The mother testified to moving into the father’s home in 2017, when X was three days old.

3. The mother and X left the father’s house in 2017, following an incident of domestic violence.  The parties have had limited communication since that time.

4. The parties disagree as to the care of X during the 17 days in which they lived together.  The father said that he would come home from work late (he contends that he was working 120 hours a week during this period) and take care of X during the night, whilst mother was able to rest.  The mother contends that the father would care for X between 8:30pm and 10:30pm, giving X her 10:00pm feed during this time.  She said that X would fall asleep for about three hours after this and that she would care for the child from then on.

5. I do not have to decide those issues, mainly because of the very short duration of the cohabitation.

Domestic violence

1. The mother does not complain of any physical violence by the father.  However, she complains that the father has yelled loudly at her, he has thrown objects in her vicinity, he has a problem with anger and that he threatens suicide to emotionally blackmail her to do, or not to do, specific things.

2. Annexed to the mother’s affidavit, are a number of text (or WhatsApp) messages in which the father speaks of hanging himself.  During the trial, the father admitted that he did not have any intention of killing himself but that he used such language to emotionally blackmail the mother.  The father recognised that such behaviour was domestically violent but that, since he has done certain courses, he now understands the evil of his actions and will not repeat them.

3. The incident of 31 October 2017 is somewhat instructive.  The mother describes that the incident occurred in this way.  The mother said that she asked the father to leave her alone so that she could clean up a mess that he had left in the lounge and kitchen areas.

4. She said that the father began to yell loudly at her.  He was complaining about having been up early that morning to feed X.  The mother asked him not to yell in front of the baby and the mother put X in her bassinet in the bedroom.  She said that the father yelled words to the effect of “you want a mess, I’ll make a mess” to which he then threw potatoes and a bag of salt onto the floor and crushed up Weet-Bix onto the floor.

5. The mother said that she got a vacuum cleaner and started vacuuming and father yelled at the mother that, if she did not stop, he would throw more food.  He then started throwing blueberries and tomatoes in the hallway.  The mother said that the father picked up a bottle of dishwashing liquid and threw it hard.  It hit the pantry door close to her head.  The mother believes that the father intentionally threw this bottle at her.

6. The mother said that she began to cry and went into X’s room.  She said that the father grabbed X’s pram and pushed roughly towards the mother who was able to step out of the way.  The mother went to the lounge room and took out her phone telling the father that he was scaring her and that she was going to call the police because he had lost control.

7. The mother said that the father took the phone out of her hands.  She said that he left the room and she thought that he had gone to calm down.  She said she was shaking and scared.  She said she went to her bedroom to get dressed and she knew that the father was due to leave for an appointment.

8. She said that she began collecting rubbish from X’s room and that the father came back in, yelling to her that he was giving her seven days’ notice to pack up her stuff and “get out of here”.  The mother left the room and went outside to put the rubbish in the outside bin.  She said that when she got back to the door, it was now locked and she banged on the door, loudly, to be let back in.

9. She said she was scared and did not feel that she could go anywhere because of her physical limitations (she was still recovering from the caesarean section she had undergone 20 days before).  She said it was some time before the father let her back in (estimating 15 minutes).  Once inside, the mother took X from the father and put her in her bassinet.

10. The father did give the mother her phone back at this time.  The mother said that she then went into the laundry to wash the child’s clothes but the father tried to come into the laundry.  The mother put her foot on the door and the father was pushing against the door to try and get in.  She said that the father was continually yelling at her during this time telling her that she was a terrible mother, that she was not coping as a mother and that she would never get another job.

11. The mother said that eventually the father stopped and left the area which allowed her to go into her bedroom.  She said that she shut the door and called her mother.

12. Shortly after this, the community health nurse arrived for a scheduled appointment.  The father left to attend his appointment with his psychologist.  The nurse helped the mother pack her belongings and the mother went to her sister’s house whilst the father was still absent from the premises.

13. The mother reported this incident to the police but said, in evidence before me, that the police told her that they would not be taking the matter further, nor would they be making an application themselves for a domestic violence order.

14. That incident was the precipitant to the breakdown of the relationship.  From that time onwards, there has been very little communication between the mother and the father.

15. The mother has two text messages sent by the father on 9 November 2017.  They read as follows:

    Text message received at 2:23am on 9 November 2017:

    Hi Ms Simpkins I do realise you don't want to chat about anything other than X however I have something I need to say once to get the truth out in the air and will do it now.

    When we had our little fight you were never in any danger. If I was even remotely close to physically hurting you I would have at least gestured at this by touching you or shoving you (which I didn't).

    The purpose of me throwing food on the floor was to protest your cleaning standards in light of the late nights I'd been having looking after X and my ever growing sleep debt I felt that it was a fair response to your attack on me earlier that morning.

    The purpose of my yelling was to convey to you my absolute frustration with the arrangement and that it couldn't continue alongside my work commitments. I felt calmly speaking and saying I wasn't able to continue looking after X at night, particularly on weekends would not work as you had the support of your parents who had convinced you that it was a fair arrangement. 

    I wanted you to see my pain and tiredness for what it was. I wanted a charade and I wanted you to say to me, Mr Biggs I can see you've lost it, that you're not coping, maybe you should leave the child raising to me for a while until you're able to employ someone and get a grip on your time management.

    But you didn't trust me, after everything we'd been through you decided not to trust me, you decided to believe you were in danger and that I was abusing you. You saw my charade solely as anger rather than what it was, a display of my emotions, my tiredness, my exhaustion, my despair at watching myself and the business go down the drain.

    You focused on the anger component and took the quick option out of there and that's a fine call and your right as a person. I just wanted you to know why I displayed and did what I did. Now that I know you know I can leave it there.

    Thanks and have a good day.

    Text message received at 5:19am on 9 November 2017:

    The main problem I have regarding anger these days is centered around people and how they affect me. I've had a lot of people drag me and my life down over the years, add to that I've had a life that was dragged down into the mud by default. I've worked very hard to rectify my life being in the mud but I'm still not there yet. I am aware of when something threatens to further drag it into the mud and I respond by trying to get that thing or person out of my life.

    In your case the issue at hand was that I need quite a lot of sleep to do what I'm doing and I didn't feel you understood my requirements and by continually pushing me you began to threaten my business and therefore potentially send me into a decline. So I responded by scaring you off and out of my life.

    Yes I scared you and I am sorry I had to do that. I feel much better now that I am able to sleep.

    I am sad that it got to this point. I wish it hadn't but we had to try to live together. I knew that I had high requirements for running a solo somewhat selfish and single minded - focused lifestyle. But even I am shocked at just how extreme my requirements are to keep my sanity and they basically require me to lead an almost single existence. I don't know how I am going to share my life with anyone else at this point as right now I don't see it as a possibility.

    That's the reality of my life right now. I hope that I can improve my time and business management at some point and incorporate someone into my life.

16. The father did not dispute the factual allegations of this incident.  He explained that he has never committed an act of physical violence against the mother but has realised that his behaviour was less than optimal.

17. The text messages are instructive because the father admits that his actions were charade so that he could get what he wanted.  The father was laying the blame totally at the feet of the mother as if to say “look what you made me do”.

18. Another aspect to the claims of domestic violence is that the father had used threats of suicide to get the mother to do, or not to do, specific things.  The mother claims that these threats were made numerous times prior to, and following, the separation.

19. The father has acknowledged that he did make such threats but that he did not ever mean to carry them out.  He said that such threats were premised on a belief, by him, that the mother was threatening to do things that would have an adverse effect on his business.  He explained that he had put much effort into this business and that his perceived threat to the business caused him to act in this manner.

20. The Mother annexed the following WhatsApp messages to her affidavit as an example of the father’s behaviour in this respect.

1. During the course of his evidence during the trial, the father conceded that such actions were “emotional blackmail”.  He said that he realised that manipulation of this kind was domestic violence.

2. The mother went to Court in January 2018 and was given an interim DVO.  On 19 April 2018, the actual DVO was made, apparently “without admissions”.

3. Strangely, in his affidavit the father claimed that the DVO was made upon 4 bases:- that he was violent towards the mother (though not physically); that he had a problem with anger; that he used threats of suicide to manipulate the mother; and, that he received a disability support pension for mental illness.  In the affidavit, the father said that he contested these allegations, however, he admitted all of these allegations in his evidence at trial.

After separation

1. Whilst the mother has personal issues with the father, she still facilitated time between X and the father.  Given X’s tender age, the mother allowed the father to spend time with X once a week but ensured that this time was supervised either by her parents or a close friend of hers.  The mother has annexed messages that she sent to the father.  The father was invited to spend time on 3 November 2017, but he replied that he would be very busy that week.

2. The father complains that, following the separation, the mother did not allow X to stay with him.  Given X’s age, this was entirely appropriate and was certainly not done out of spite or any other negative emotion.

3. The father did spend time with X on 12 November 2017, 19 November 2017, 26 November 2017 and 1 December 2017.

4. The father claimed that on 12 November 2017, he was asked to sign a document allowing the mother to take X and to relocate to Town F in Central Queensland.  The father said that when he did not agree, the relationship became hostile and he was unable to visit X.  This is patently untrue because the father did visit X on three occasions after 12 November 2017.

5. The mother and father agreed to register at the Suburb G Child Contact Centre (“the Suburb G CCC”).  The mother completed her intake in December 2017 and the father completed his intake in March 2018.

6. On 19 May 2018, the mother advised the father that she had received an employment offer and would be moving to Town F.  The mother relocated on 21 May 2018.

7. The mother claims that the father had a visit with X, supervised by the maternal grandmother, at Town F on 24 May 2018.  The mother returned to the Brisbane area for a weekend in August 2018 and the father had supervised visits at the Suburb G CCC on 10 and 11 August 2018.

8. The mother claims that she offered the father a visit with X in Town F in October 2018, but the father did not take up this opportunity.

History of this litigation

1. The father filed an initiating application on 26 September 2018.  The father wanted final orders that would have the mother residing permanently on the Region H or Brisbane and that X would live with the mother and father on a shared care basis.  In the interim, the father proposed two supervised visits each month until the child was two and then six hours unsupervised time; once a month if the mother was still living in Town F and twice a week if the mother were living in Brisbane/Region H.

2. The mother filed a response on 16 November 2018.  The matter went before Her Honour, Judge Turner on 22 November 2018 and a consent order was made allowing the father to have time with X at Town F, supervised by the maternal grandparents and supervised time at the  Suburb G CCC when the mother would return to the Brisbane/Region H area.

3. Her Honour’s order also allowed Skype time between X and her father.  Time continued under the orders of Her Honour until an incident occurred during a Skype call, of which I will speak later in these Reasons.

4. On 27 March 2019, the mother filed an affidavit of Ms J.  As will be explained later in these Reasons, this was pivotal information which changed the course of the proceedings.

5. On 3 May 2019, His Honour, Judge Coates made an order that the Skype sessions were to be supervised by the Contact Centre and that an Independent Children’s Lawyer (“ICL”) be appointed.

1. Soon after this, the mother’s employment in Town F ended and she returned to the Brisbane/ Region H area.  From 16 June 2019, supervised visits at  Suburb G CCC, between X and her father, occurred fortnightly.

2. The matter was transferred into my docket on 15 November 2019.  On that day I adjourned the matter until February 2020.  On 28 February 2020, the matter was administratively adjourned until 3 April 2020.

3. On 3 April 2020, I set the matter for trial and made trial directions.  The trial was listed for three days from 3 August 2020.  The trial ended up proceeding for six days through a combination of proceedings in the courtroom and via Microsoft Teams.

The “Ms J Bombshell”

1. As previously mentioned, the filing of the affidavit of Ms J changed the course of these proceedings.  The mother dubbed this as the “Ms J Bombshell” when she gave her evidence before me.

2. The mother gave evidence that the father had told her that he had previously been in a relationship with Ms J.  The mother said that, after she and the father had first been intimate (around 2016), he informed her that he was on the sex offenders register.

3. She said that he explained that this was because there were videos and photographs taken during his relationship with Ms J but, because Ms J was aged 17 at the time, his relationship with her was legal but the taking of videos and photographs was not.

4. The mother said that these were all the details that she was told about the relationship and the criminal history of the father.  She said that the father had asked her not to discuss the fact that he was on the register with anyone else.

5. The mother said that after she had separated from the father, she received a message on Facebook from a “Ms K”.  The mother has annexed the messages exchanged by her and “Ms K”.  “Ms K” sent a message to the mother on 13 July 2018 which simply read “please be careful, your daughter’s father is a paedophile…”

6. The mother put “Ms K” into contact with her lawyer.  When speaking to the lawyer, “Ms K” revealed herself to be Ms J (Ms J).  She then gave her story to the lawyer for the mother which led to the affidavit of 27 March 2019.  Ms J has since given more material, including her diaries, to the lawyers.  This, combined with material obtained by the ICL, has painted quite a disturbing picture.

The first contact between Ms J and the father

1. Ms J was born in 1992.  Notwithstanding that the father was over 30 years of age at this time, he met Ms J in an online teen chat room when she was 16 years of age.  Around 2009, Ms J moved from Canberra to Melbourne to live with the father.

2. At this time, the father was living with his sister and her partner.  About a month later, the father and Ms J travelled to Canberra to see her family.  This was a short visit.  The father and Ms J returned to Melbourne and continued to live with the sister of the father.  Around late 2009, the father and Ms J moved into their own accommodation.

The Claims of Ms J

1. Ms J testified that she physically met the father when she went to Melbourne.  She said that on that first night, the father had anal sex with her.  She said that she had sex with the father very frequently and that he enjoyed watching pornography.  She said that the father often masturbated when he was watching pornography.  She said that the father asked her to make pornographic videos of herself for his enjoyment.

2. She said that she had to commit acts that she found “perverse and painful” which appealed to the father’s sexual fantasies.  She said that the father had a proclivity for anal sex and for sex involving defecation.  She said that the father would get angry with her if she went to the toilet to defecate.  She said that the father wanted her to eat her own faeces in front of him after she had defecated. 

3. She said that he often got her to dress in a way that made her look even younger than she was.  She recalled staying in a cabin in Tasmania where she and the father met a man and his son.  She said that these two persons assumed that she was the daughter of the father.  She said that the father got “a sick sexual satisfaction” out of pretending that they were father and daughter sleeping in one bag.

4. She said that the father had told her of his fantasies regarding underage children.  One such fantasy involved moving to the country and keeping a little girl in the basement.  The fantasy entailed the father not letting the little girl defecate until the father had his penis inside her anus. Another fantasy was the father having a daughter with Ms J and that the daughter would be in their bed with them – Ms J would be performing cunnilingus on the child while the father would be sodomising the child at the same time.

5. She said that the father often watched child pornography and would make her also view that material.  She particularly remembered a picture of a child whose face was covered with semen and that the father made a comment along the lines of “imagine how horny he must’ve been for that little girl, to come that much!”

The relationship according to Ms J (and her diaries)

1. In 2009, Ms J wrote in her diary:

   …Sometimes I wonder if Mr Biggs even loves me.  Sometimes I question whether he really wants a family with me or he just wants me to give birth to some girls… So that he can have his way with them…

2. In 2009, Ms J wrote in her diary that she felt that her relationship with the father was “nothing more than sex”.  She wrote that:

   I put effort into making him videos to come to while I am away, but rather than just waiting one day for them, he would rather relieve himself now by jerking off to some girl other than me…

3. In 2009, Ms J wrote:

   The reason I was so upset last night was because Mr Biggs was talking about starting up his own porn business.  It hurts me enough that he jerks off to girls on porn sites, so imagine how much more it would hurt me if he were actually having sex with them!  I’m sick of him lusting after other girls.  I am sick of money being so important to him.  How can he possibly love me and still want to sleep with other girls?!  I have told him it upsets me but he doesn’t get it.  He thinks it’s no big deal, it’s only sex.  But to me sex is something private and special that only partners should share with each other!

4. In 2009, Ms J wrote:

   I feel I need to think back to some of the things Mr Biggs said and write them down, if I can remember.  “We can have her (our young daughter) in our bed and you can lick her little seven year old clit while I slide my big cock up her tight little ass-hole”.  These are not going to be the exact words he used, but these are things he talked about as best as I can remember them.  I do not have dates.  At one time, Mr Biggs showed me a photo of a 7-8 year old girl with semen all over her face.  He made comments on that, but I don’t really remember them, as these are things I would rather forget.  One comment he made was: “imagine how horny at guy must have been for that little girl, to come that much!”

   Another thing he mentioned (I can’t remember his words, but I remember the story) was about wanting to keep a little girl locked in the basement.  He said we could get a house in the country and he would have a little girl live in the basement.  He would make sure she ate well and exercised…”

5. In 2010, Ms J wrote in her diary:

   …Mr Biggs is downstairs, in bed, jerking off to porn.  I want to start reading heaps again as an escape from the real world and all this stuff that upsets me.  I want to go back into an imaginary, fantasy land and be a child again.  I don’t like the dirty, perverted, too serious, adult world.  I wish I never grew up.

Possessing and Making Child Exploitation Material (CEM)

1. In 2010, Ms J reported to her school counsellor what it was that the father was doing to her.  The school counsellor notified the police.  Ms J refused to speak to the police about what was happening to her physically but did tell the police that the father was downloading child pornography on a regular basis.  Acting on this complaint, the police executed a search warrant on the residence, which the father and Ms J shared, later that day.

2. The next day, Ms J presented at the police station and withdrew any complaint against the father.  Police did not investigate what Ms J had said any further, however continued to investigate the pornography that was found during the execution of the search warrant.

3. Police seized the computer and other items during the execution of the warrant.  The police computer forensic unit examined those items and found images and film of child pornography which included pornographic films of Ms J with the father.

4. In 2010, the father was interviewed by police, notably Detective Mr L.  The father attempted to blame Ms J for the material.  The father told the police that Ms J was obsessed with taking videos of herself and that he had no control over it.  He said that he told her that he was not interested in her videos.

5. The father said that Ms J used her own digital camera but that he provided her with a laptop upon which she could download what she captured in her camera.  He described this laptop as a work laptop and kept reiterating to the police that he had no control over what it is that she was doing.

6. When the police asked the father about a video tape of the father having sex with Ms J, the father said that he did not know how that video came to be on any of his storage devices because he did not recall making any videos with Ms J.  The father said that “if I wanted to make child pornography, there’d be a lot more there than the [sic] you’ve already found”.

7. The police advised the father that it was an offence to film a person under the age of 18 engaged in an indecent act.  The father said that he was not aware that this was the law.  The father said that he made sure that he was allowed to date a 16 year old legally because he checked on websites.

8. The police asked him about other pornography that was on his devices and commented that the common thread of such pornography was females defecating.  The father said that any such pornography would have been downloaded by Ms J and not by him.

9. The father said that he did not ever download pornography but he had been given pornography by friends at work and that they may swap hard drives.

10. The father again shifted responsibility onto Ms J and told the police that she had “been looking at porn since she was 11”.

11. The father was charged with making CEM (a video and photos of he and Ms J), possession of CEM and procuring a child to make CEM.

12. It is instructive to understand the material that the police seized and I will speak of the relevance of some of this material later in these Reasons.

The Aftermath of the Charging

1. Notwithstanding that Ms J had withdrawn her complaint, there was some form of order in place that prohibited Ms J from living with the father in the aftermath of the execution of the search warrant.

2. But after the father was interviewed, and charged, it seems that he waited about a month before he contacted Ms J again.

3. In 2010, Ms J wrote in her diary:

   Mr Biggs came over yesterday, as I said.  Of course he wanted to convince me that he wasn’t/isn’t really into child porn…. 

   …But back to the real issue.  This fucking child porn!  It was as though he was completely fucking trying to blame it on his ex and myself!  Everything he said seemed to make sense, but no, there is something seriously not right there!  I was feeling really good before he unexpectedly came over!  I had let go of him, and I had had the courage to do that!  I knew it was the right thing.  I felt this huge burden lift off my shoulders.  But yesterday, when I should have told him to leave, I was weak.  I’ve had a massive setback.  I’m going to have to work twice as hard to get back to where I want to be.  But if I want to be in that place bad enough I can do it.  I am sickened by all this shit going on!  I no longer feel the way I used to about him.  I can’t be at in a relationship with him anymore.  The shit I’ve seen has damaged me too much!  I can’t look at a child for Christ’s sake!  I look at one and I begin to get emotional.  Images of what Mr Biggs has shown me, of all these children being hurt… For fun!  It makes me so mad!  It hurts!  Why’d he fucking show me that shit!”

4. According to the father, it would seem that by late 2010, the father and Ms J were back living together.  The father was on bail for the charges and there was a legal restriction upon contact between him and Ms J, which had seemingly been ignored by both Ms J and the father.  During this time, Ms J testified that the father wanted her to visit a doctor/psychologist/psychiatrist for the purpose of helping him with his charges, and the father drafted a letter for her to write out to give to such medical professional.

5. The letter that the father wrote for Ms J read as follows:

   Dear Dr

   Over the past eight months I have been going through a court case involving my boyfriend and the police.  My boyfriend was charged with making child pornography with me when I was 17 even though that wasn’t his intention as it was my camera, yet he was on it.  Since then the police have tried to build a case for the court asking me to be a witness but I refused as the video was my idea and the police have been making lies to build their case.  Because I’m not getting involved with the police lying about the charges they rang my mum and told her everything private that was on the video and have humiliated me so much that I can’t bear to have a normal relationship with my mum.  I have no friends or family in Melbourne and now I have nightmares and anxiety and depression because the police officer, Mr L, did this.  I have a good relationship with my boyfriend’s family and they have become like my own.  The police persist it keeping an intervention order in place against my wishes and this is stopping me from spending time with his family.  I used to cut myself and lately have become feeling like self harming again and can’t get out of bed and get motivated.  My life was good before, I moved to Melbourne and was studying and had my boyfriend and his family.  Now Mr L has ruined my family relationship and made me struggle with life again as I now have nothing.  I want to tell someone at the ethical standards division of the police force what has been going on and would appreciate a letter from you supporting me and my condition.

6. Ms J did not write out this letter, nor did she make any appointment with a medical professional for the purposes outlined in the letter. The evidence before me suggests that the father and Ms J spent some time travelling in a caravan before Ms J went back to Canberra and the father left Melbourne and went to City M, Queensland.  In evidence before me, the father said that Ms J came up to City M in 2011 and lived with him until 2012 when she left.  The father did not detail the circumstances surrounding Ms J’s departure.

7. In 2012, the father sent an email to Ms J with the subject “i need u”.  In the email the father said that he had been in a fight with three people and that he was sad, and had been sad since Ms J left.  He asked Ms J to call him.

8. In 2012, Ms J sent a short reply stating that she did not think she would hear from the father again and that she missed him and had looked on his “site” a few times.  The father replied within eight minutes of that email being sent.  In the email, he detailed what he was doing and ended it by saying “I guess you could say I was hoping by now you wanted to come back.  But that didn’t happen.  Then this happened.  Now I can’t bear to ignore you any longer.”

9. This then led to an exchange of emails where the father was detailing aspects of his life and imploring Ms J to come back to be part of his life.  Ms J’s responses are cordial and caring, but she at no time makes any promises to resume any form of relationship with him and does not give him any other contact details such as her address or her phone number.  The last email in this exchange was in mid 2012.

10. In mid 2012, the father sent an email to Ms J with the subject “Plan of action - Jail and what needs to be done if I go and how you can help me”.  In the email, the father talks of the preparations he is making in case it is that he is jailed when his trial concludes.  He asks Ms J to come to City M and do a number of jobs to remove all of his possessions.  He writes:

    …you are the best person to help me and it would be fair consolation to me if you did that.  I will also pay you some money for it on top of food. 

    This coincides with us staying in a relationship in the eyes of the court, as I’m moving to Brisbane to be with you, after your little vacation alone.  Now as for the court case, the plan of action, I will send to you soon.  Let me know what you think of this plan?  Any feedback.… 

    …Oh and please give me your damn phone number before we see each other at the hotel in sep...

11. In mid 2012, Ms J sends a reply, telling him that she can do all he has mentioned and that she was happy to help in any way that she could.  She told the father that she thinks that he is “too convinced” that he was going to go to jail.  She said that she was getting really stressed as that date drew nearer and that she just wanted it all to go away.

12. The father replied to that email two hours later.  He explained why it is that he thinks he is going to go to jail.  He then outlines a draft letter that he wishes to read to the court.  The letter is headed “why I am not pleading guilty”.  It reads as follows:

    Draft Letter:

    Why I am not pleading guilty:

    Because the police have understated the variables, they either don't have the knowledge or have deliberately left out variables relating to dates and times. A computer with a missing or depleted bios battery would result in corrupt dates. This is the case with the dates relating to the images in question. I feel like I am dealing with selective evidence, as the battery in the laptop in question is clearly dead. I never got around to replacing it. Your investigators are either naive or purposely evasive in dealing with the way files work. If you think we have downloaded a certain file, have you considered that a file can be contained inside a package, and the package may be named differently to what files are inside?

    Simply put pleading guilty to offences which are passive and have no direct connection with how I felt or was thinking at the time, would be overly simplified. I am not a simple person, you have no idea what my intentions were or what sort of person I was. I have been a law abiding citizen up until this point and now you come into my life and destroy everything that I had and had worked to achieve all in the name of some material which I may or may not have looked at or new was on hardware in the house belonging to Ms J and I.

    Our arguments are based on speculation and assumption, and you would go as far as to incriminate me for being a pedo, even though I have never harmed a child and my sexual interests are obviously of a legal nature, otherwise instead of being with Ms J perhaps I would have been with someone under 16, l had many options at the time I got with Ms J. Ms J was by far the youngest girl I had been with in my own adulthood, because I believed ln her on levels way beyond your disgusting insinuation that I had "procured" her for the purposes of producing child pornography, the whole charge is ridiculous in my eyes, and in everyone’s eyes who knows us or knows about the case. Just not in the eyes of narrow minded, criminal conviction hungry police

    We are good people and you destroyed us and took years off our lives in your pursuit of convictions.

    I fear the thought of how many other good people have had their lives destroyed for material that was found on their computers that they may not have known they had. For example a zip file, which is a package containing sometimes hundreds or thousands of files can be commonly downloaded under the name of "sexy teen shows her stuff+ more new girls.zip which someone may download out of curiosity, and when the file is automatically extracted using a script, the result may be hundreds or thousands of files landing on that persons harddrive, in a variety of different folders. Now if the package contains a .exe or .scr fife the result can be catastrophic, child porn could be scattered all over the computer and the computer could become infected and transmit as a client host on the internet.

    The sad part is, most people won't be able to defend against these sorts of allegations for a number of reasons, firstly the complexity of the internet. They are fighting a losing battle from the start, how can a lamen compete with the budgets of law enforcement, complete with an army of geeks with computer science degrees hell bent on creating scenarios of guilt regardless the cost? Just because X document or file was on a computer residing in our home, doesn't mean we looked at it, or wanted it, so who is to say we are depraved for having such files in the history of the computer? The history of the computer is simple and does not remotely equate in the slightest, to the history of a human beings mind. I had been charged with 7 images, now there are 200, how do we know this was not planted?

    Secondly, how can a lamen who works to support his family or himself, compete psychologically and financially with a court case which is dragged and stalled by the prosecution so that it lasts for 3 years with the threat of being dragged out in the courts for even longer? The answer is they will go broke trying to pay their legal feels, not many men are blessed with a financial arrangement such as mine, for most the financial strain will become too much.

    I am convinced that many people have been intimidated both financially and psychologically into ceeding thier innocence. Knowing what I know now, about how the system works, I wonder how any of you can sleep at night, knowing that you have completely destroyed so many lives in the trial process, you choose to knowingly humiliate and visually rape victims even after they say enough, please stop. As well you choose to knowingly destroy peoples lives in the name of the pursuit of a conviction, peer group integrity and career progression, that is unforgivable in my mind. One example of this is one afternoon when I found Ms J cutting herself and crying, blood everywhere. When I asked what was wrong she revealed that her innocence and body had been scarred by the eyes of the prosecuters, lawyers and detectives investigating our case, that she felt raped everytime she knew they had seen her shitting and naked. Some things in the world are private, and to breach a young girls privacy in this way is abhorrent, Ms J's statement that these videos were made soley for her own interest, her warnings and her begging through letters, should have been enough to have these police back off. I now understand why people call them pigs, because to me this behavior is disgusting.

    The big point to be made here is that I am prepared to go to Jail to suffer as a martyr for the cause of standing up for the liberties of ordinary internet browsers. The police and others will never know the minds of people like me, as much as they try they can never answer the question, why was he looking at that girl, why did he have a girlfriend aged 16 -19. They are limited in thier knowledge of others and this is the greatest flaw. The saddest part in all of this is the crimes are greatly passive, no person has been actively targeted or hurt in the process of extracting a file with child pornography inside it. Thier is a moral crime associated with this, however how can it be known who morally thought what, the idea that this can be known is ludicrous.

    I shudder to think of the resources that have been devoted to putting away people like myself or Muirhead the ABC presenter from Tasmania, at the expense of active and destructive crimes against people and property, and pedophiles which actively lure and hurt children. I simply believe with all of my heart that I have not committed any crimes and will believe such for the rest of my life. I have a clear conscience, and know that I am a good person. My liberties have been viliolated and my life has been destroyed. I worked for 10 years to build my dream of becomming a professional and watched my life crumble and also my things stolen by the police as part of their investigation. I lost all the collegues and friends that were my inner circle and my rock for the better part of my adult life. I lost much respect simple put I was tarnished and no one wanted to be near that.

    I have chosen to start a new life in City M Queensland. I have begun to pursue my other dream which was to be an artist, and live music for entertainment which l have been doing in City M with my beloved instrument. I have an album almost complete and ready to launch, it would be a shame to have to launch this from inside a jail. I am a passivist and an intelligent person who does not fair well in the face of destructive and chaotic personalities, and I do know that I would struggle to defend my liberties in Jail, I urge the magistrate to consider what a soft person such as myself might endure at the hands of violent or destructive criminals. 

    My history was one that shined, I served my country in the armed forces for 5 years. I spent 10 years working my way up the corporate ladder to become a successful professional working for Employer N, l commanded a enviable white collar salary for my age group and payed annually around $40,000 in tax. I now suffer from severe depression and Anxiety, and take $34,000 a year from the government in pension payments, as well as all legal fees via legal aid process. I have placed severe financial burdens on my family, especially my mother and father, due to all the expenses related to my airfares for each court appearance and also my relocation and disability treatment. The saddest part of this entire case is that no body wins, note even the public, they have gained a new dependant on a already overcrowd system, I never hurt anybody.

    I was one of the few people that Ms J had met, that understood her mental ilnesses as I too had been suffering from varying levels of mental decay for many years. I spent the first year of my relationship with Ms J trying to improve her life, to empower her. I encouraged her to get her license and helped her with this. I encouraged her to go to a real school as she had been home schooled her entire life, and I made a point of the importance of her completing her VCE, she agreed and started attending school to complete this. I encouraged Ms J to seek professional help for her depression, and helped her to stop trying to commit suicide. Ms J had regularly up till this point drank bleech, cut her wrists, arms and legs and took advantage of any pills laying around the house. I took Ms J mountain climbing in tasmania and showed her the benifits of team work, pushing the limits and never giving up to reach your goals. By the second year of our relationship Ms J no longer cut, and her bouts of depression were not as common. After Ms J and I moved to City M, her depression had all but subsided. I believe I played a major role in ensuring Ms J survived her turbulant latter teens. I stuck by her in the face of everything that she did to me, I knew that any other course of action would have related to Ms J killing herself. Ms J is now a very strong person and has even become an inspiration to me.

    I urge the magistrate to consider my need to travel in the future to promote my art, and some of those destinations might include the Country O and other advanced economies with advanced legal systems that might block my entry should l become a known sex offender. I accept in the worst possible scenario that I will find it hard to defend against the charge of production, as I was in a video with Ms J, however as I have stated previously, the camera was not mine, and the idea to film was Ms J's I simply held the camera. In fairness to both parties the production is no more mine than Ms Js, however the important thing to remember is that it is still not beyond reasonable doubt my production, so should not be accepted as being such. The proof is here, look at other videos on that sim card, from the same camera, they were all solo videos of Ms J in the bathroom fascinated with making erotic movies of herself, now do you still believe beyond reasonable doubt that I wanted to produce with Ms J? Ms J had been doing these videos long before I met her, wakeup people we are living in the digital age, everyone has a camera, teens get curious. [Spelling errors are as transcribed from the original document]

1. After he had finished with this draft letter, the father talked briefly of what he had been doing and then ended the email with these words “Now if only you would give me your number.  I don’t deserve to be treated this way I barely even said anything when you cut me off.  I know why you did and I won’t forget it.  You are afraid I might call you while you are with someone else.  Thanks for the help anyway”.

2. There is no evidence that Ms J ended up doing any of the things that the father asked her to do in these emails and no evidence of any reply by Ms J to the father after he sent this email. 

The Court cases

1. The only information about the Court proceedings that the ICL was able to obtain was from verdict and judgement records and a criminal history search.  That material discloses that, in 2012, the father pleaded guilty to one count of knowingly possessing child pornography and one count of make/produce child pornography before the Melbourne Magistrates Court.  The charge of procuring a minor for making/producing child pornography was struck out/withdrawn.

2. The Magistrate sentenced the father by fining him $750 and recording a conviction.  The Magistrate noted, on the record, that the father was sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004 (VIC). The Magistrate also noted, on the record, that if it had not been for the plea of guilty, the sentence would have been one of actual imprisonment.

3. In late 2012, an appeal by the father was heard in the Melbourne County Court.  The County Court Judge allowed the appeal and set aside the order of the Magistrate.  Instead the judge imposed a two-year bond without the recording of a conviction.  The judge noted that the length of the reporting period was eight years.

4. There was no other official material available than this.  There was no record of the factual basis of the plea of guilty nor were there any sentencing remarks of the Magistrate or reasons given by the County Court Judge.

5. The father testified that the basis of the plea was a deal that had been struck between his lawyers and the prosecution.  He said that the “making child pornography” charge involved only one video that the father filmed because of the wishes of Ms J.  He said that the “knowingly possess child pornography” charge involved nine photographs that Ms J took of herself but stored on the computer of the father.

6. The father said that he pleaded guilty on this basis and because the prosecution were going to drop the “procure a minor” charge as an acceptance that this was all Ms J’s idea.  He said that his big incentive for pleading guilty was that he would only be on the register for eight years rather than 16 years.

7. There is no evidence to corroborate what the father has said and it is a question as to whether I accept this evidence.  I will speak of this later in these Reasons.

8. On the evidence before me, there was very little contact between the father and Ms J after this date.  The father testified that he sent emails that were not replied to.  There are two letters that Ms J sent to the father: one in 2013 and another in 2014.  The letters talk of the father in glowing terms and are also somewhat self-deprecating.  Despite all of this, it is noteworthy that Ms J does not disclose her address or her phone number to the father, giving her address as c/o Brisbane GPO.

9. Ms J testified that she now suffers from post-traumatic stress disorder (“PTSD”) and is undergoing treatment for this malady.  Ms J testified that whilst she had not kept in contact with the father, she did from time to time look at his Facebook page.  In looking at that page, she noticed a photo of the mother who was pregnant.  The mother was “tagged” in this photo.

10. Ms J said that it was through seeing updates on the father’s Facebook page that she understood that the father now had a daughter and that there was conflict between the father and the mother.  Because of all of her experiences, Ms J said that she reached out to the mother by creating a “Ms K” account and messaging the mother.

Other concerning behaviour of the father

1. The mother details other aspects of the father’s behaviour that have caused her concern.  Some of this behaviour is concerning given the evidence of Ms J.

2. The mother said that, prior to their engaging in sex for the first time, the father asked the mother whether he could film the encounter.  The mother refused and said that the father did not bring the topic up again.

3. The mother said that the father asked whether he could blindfold her whilst having sex.  The mother agreed to this on one occasion but was so uncomfortable by this, she refused any further requests.  She said that the father also requested that she wear a mask with a ball gag and be “his submissive”; a request that she refused.

4. The mother said that the father made many requests for anal sex which she refused, she said that the father’s reaction was along the lines of “I will leave you if you don’t have anal sex with me as I need a person that has similar sexual tendencies”.

5. The mother said that the father made requests that the mother defecate onto her underwear so that he could have a stool sample during a week when the mother was at work.  The mother said that she complied with the request once but refused any further requests as it made her too uncomfortable.

The Skype calls

1. As previously mentioned, the orders of Her Honour Judge Turner allowed for the father to have Skype communication with X.  In April 2019, the mother could see that the father was receiving the Skype calls whilst sitting in bed without a shirt with a sheet covering below the waistline.  She saw that the father had toys in his bed and was playing with the toys whilst talking to X across Skype.

2. The mother, quite understandably, was very concerned with this behaviour.  The first aspect of this conduct is that it allows a child to accept that a bed is a place for toys, games and, therefore, fun. 

3. The second aspect of this conduct is that it also normalises that clothes are not necessary.  The mother said that the fact that the father still had a sheet draped over the lower extremities of his body, made it obvious that he was naked during these Skype calls.

4. It is a very small step to then normalise to a child that they can have recreational fun on a bed without clothes.  It may be said that it cannot be proved that this was the intention of the father, however when such actions are perpetrated by a man who has been said to have paedophilic fantasies, it is cause for alarm.

5. It is worrying that the father saw absolutely nothing wrong in this behaviour and could not understand the concerns of the mother.  When this behaviour was disclosed to His Honour Judge Coates, His Honour put in place a regime where the Skype calls would be supervised.

6. The mother was also concerned that the father was kissing X on the lips at the supervised visits.  She said that she raised her concerns with the Suburb G CCC and they then agreed to prevent any such kissing from then onwards.

Evidence of the Father

1. The father gave evidence before me.  He was an unimpressive witness.  On many occasions he simply would not answer the questions that were asked and went off on “soapbox soliloquies” proclaiming his virtues.

2. He gave evidence that Ms J “hated” him and that Ms J was a fantasist.  He said that Ms J has fantasies where she is the child and she is “abused” by a paedophile/father figure.  He said that Ms J has put herself in the role of child and has put him in the role of abuser.

3. The father spoke of finding “stories” that Ms J had written.  He said that the stories were very dark and concerning because they involved systematic torture and abuse of children.  He said that he showed these stories to his sister at whose house he was staying.  He gave evidence that his sister’s reaction was that she immediately wanted Ms J out of the house.

4. The sister did give evidence and did say that she had seen material that was concerning.  However, she did nothing about it and did not speak to Ms J about it at any time.  She said that she did not want Ms J out of the house because of this.  She said the only time she did not want Ms J in the house was after the police had charged the father (which was at a time that Ms J was not living with the sister in any event).

5. The father said of the relationship with Ms J, that Ms J was the one that was in control and that he was not in control at any time.

6. He said that Ms J has revenge in her heart for what she considers as the bad things that the father had done to her.  However, the father said that he did not do any bad things to Ms J and that he “rescued” her and put light back in her life.

7. He said that Ms J and the mother had gotten together to try and prove that the father was a paedophile for the sole purpose of allowing the mother to travel anywhere she wishes and to take X with her.

8. He said that whilst he thinks the mother does have some concerns about him, she has totally overblown them.  He gave the reaction to the Skype calls as an example.

9. The father rejected the claims that Ms J was making.  He reiterated his claim that Ms J was the one who wanted to record their sexual encounter and that he simply went along with it.  He said that the only fantasies he had were about Ms J and not any other person. 

10. He said that Ms J was the only person who was looking at child pornography and it was Ms J who had downloaded such material.  He said that Ms J was obsessed with pornography.

11. He kept talking about the help that he had given to Ms J, however when asked to particularise what help he had given to her, the only example he could tell the Court was that he had once called paramedics who had wanted to take her away to a psychiatric evaluation but that he spoke to them and was able to use the advice they gave him to calm, and protect, Ms J.

12. He denied ever having a fantasy, let alone telling Ms J of any fantasy, to have a child in their bed or to keep a child in the basement.

13. The father denied ever asking the mother to defecate in her underpants.  In response to what the mother had said, the father claimed that he had anal sex with the mother three times and had tied her up in some form of BDSM scenario on other occasions; he said not only did the mother not object, she was an enthusiastic participant.  I do note however that the father gave specific instructions for his Counsel not to cross-examine the mother on those aspects of her evidence.

14. The father admitted that he used to be a big consumer of pornography but that his attitude now is that he despises pornography.  He admitted that if he was desperate he would look at pornography but that he would feel ashamed at it afterwards.

15. He admitted that he had engaged in “emotional blackmail” and that what he had said in his affidavit “that he denied the allegations of domestic violence” was incorrect.  He said that he came to a realisation that what he was doing was not right and so he “did a course”.  He said that that course has opened his eyes as to what was wrong with his behaviour.

16. He said that, whilst he had claimed to have suicidal thoughts, he did not really have those thoughts.  He said that he has spoken to professionals and they have assessed him as not being suicidal, I do note that the father did not present any medical evidence to this Court to corroborate such testimony.

17. The father said that, as far as he was concerned, he could communicate with the mother and that he was always open to talk to her and to mediate any problem that they had.  He said that he still harboured hope that they would be able to resume a romantic relationship in the future.

18. At the end of his evidence, the father reiterated to me that he had not said anything to Ms J about any fantasies to do with children.  He said that he did not have such fantasies.  He said that he knows that his behaviour in the past was less than ideal.  He said that the Court could have confidence that, because he has done courses now, he knows how to properly behave and that he would be a very good father to X.

Evidence of the Mother

1. The mother gave evidence before me and was extremely nervous.  She presented as a very timid person. She often needed to write out the question she had been asked, ponder it and then respond to it.

2. The mother said that, from 31 October 2017, she has not felt that she could talk to the father.  She felt intimidated and unable to assert herself in his presence.  The communication between the mother and the father is actually facilitated by the maternal grandparents.  The father sends emails to the maternal grandparents and they answer those emails, obviously with some input from the mother.

3. The mother said that she could not conceive of this situation changing in the future.  The mother said that she felt harassed by emails from the father which detail how well he is doing with his business or contain any content that is not directly about the care of X.  This is especially so when the father suggests that the two of them still have a future together.

4. Whilst the mother saw no future for herself with the father, she said that she thought it was important for X to grow up knowing who her father was and having some form of connection with him.  She said that she believes that it would not be in X’s best interests for her not to have any understanding of who the father is and that if X didn’t know her father, it would be deleterious for her in the long run.

5. To my mind, this demonstrated the innate decency of the mother.  There could never, realistically, be any justification for a claim that the mother is simply a woman who hates the father and, only because of spite, is attempting to do everything in her power to deny him from seeing his daughter.  The mother is a woman who genuinely is concerned about the interactions that the father could have with X.

6. The mother said that she would abide by any order of the Court but she is terrified of any result that would mean that the father would have unsupervised time with X.  The mother said that she believes what Ms J has told her about the fantasies of the father is true.

7. The mother did not derogate from the evidence in her affidavits.  She was a witness of honesty and reliability.

Evidence of Ms J

1. Ms J also gave evidence before me.  Her affect was consistent with the medical report that gave her a diagnosis of PTSD.  She had memory troubles and could not recall peripheral events that occurred during the time in which she was in a relationship with the father.

2. She did not have any of the hallmarks of a witness who was giving evidence to meet a particular agenda.  She did not make any gratuitous comments about the father.  At one stage I asked her a question (which suggested an answer) about her time in Canberra. 

3. The purpose of the question was somewhat peripheral, however, a witness who had a specific agenda, would have latched on to that particular question and given the answer which may have been seen to have boosted her credibility.  Instead, Ms J truthfully answered that she could not recall.  This exchange convinced me that Ms J was not a witness who had an axe to grind against the father.

4. Whilst there were aspects to events that Ms J could not recall, she was adamant about those matters for which she had given specific evidence, and which were also detailed in her contemporaneous diaries.

5. I found Ms J to be a very credible witness.

The Evidence of Ms P

1. Ms P was commissioned by the ICL to prepare a sexual risk assessment report in relation to the father.  In that report, Ms P detailed the psychometric assessments that she had made of the father.

2. Ms P opined that the father had, in a general sense, accepted responsibility for his behaviour but had externalised blame to Ms J for taking the images.  She noted that the father minimises any intent or involvement in that aspect.  She said that there were a number of factors that were generally considered positive or protective.  These included that the father was employed, he had no substance abuse issues, he had a supportive family and he had not engaged in criminal behaviour more generally.  She said that he does not appear to possess antisocial, or psychopathic, personality characteristics that might otherwise increase his risk.

3. She said that if the CEM was all related to his relationship with Ms J, then this, combined with a personal history that indicates he has an interest in the capacity to foster intimate relationships with adult partners, would tend to mean that the risk of reoffending would be limited to that of a younger, though legal, partner.

4. Ms P assessed the risk of the father reoffending as being “low”.

5. Ms P was asked to update her report because there was further material from the Victorian police and Office of Public Prosecutions which included the material that was found by the police in the execution of the search warrant.

6. Upon assessment of that material, the only other information, that seemed to be relevant to Ms P, was that there were found in the father’s possession CEM other than the CEM that depicted Ms J.  But this did not change her assessment.

7. Before she gave her evidence before me, Ms P was given the other material from Ms J which included diary extracts.  Ms P said that such material had made her change some scoring on some of the assessments that she had undertaken with the father, but that it did not change the overall risk.  She found that there was a minimisation of offending.

8. She described that the father obviously did have a tendency towards copraphilia of which he had not spoken at all in his interview with Ms P.  She explained that this may be because of embarrassment but it could also be because of the manner in which the father minimises such matters.

9. At the end of her evidence, I took Ms P to what the father had written in his email to Ms J of 2012 as to why he was not going to plead guilty.  I especially drew her attention to the paragraph where the father said that he was prepared “to go to jail to suffer as a martyr for the cause of standing up for the liberties of ordinary internet browsers… The saddest part in all of this is the crimes are greatly passive, no person has been actively targeted or hurt in the process of extracting a file of child pornography inside it.  Their [sic] is a moral crime associated with this, however how can it be known who morally thought what, the idea that this can be known is ludicrous”.

10. Whilst Ms P agreed that such sentiments are extremely concerning, she tried to explain that these sorts of sentiments had already been taken into account in the assessment of risk.

11. I found this explanation totally unconvincing.  Ms P gave the very clear impression that she did not wish to change her assessment even in the face of such material.

12. Whilst it is true that Ms P gives the only evidence of the assessment of risk before me, that does not mean that I must slavishly follow it and accept it.  This is especially true if it does not follow a logical path.

The Evidence of Mr Q

1. Mr Q was commissioned by the ICL to compile a family report.  His report was very thorough.  His report was very helpful and, quite properly, he left the issue of risk as one that needed to be decided by the Court rather than by him.

2. His recommendations were that, if the Court found the father as an unacceptable risk to the safety of X, that the mother have sole parental responsibility and that the child spend no time with the father.  However, if the Court was not of the view that the father was an unacceptable risk to X, then the parents should have equal shared parental responsibility and that X should spend one day a week with the father which would extend to an overnight visit once the child was three years of age.

3. By the time that Mr Q gave evidence before me, he had been given the two reports of Ms P, the trial affidavits, the extracts of the diaries of Ms J and the material obtained by the ICL.

4. Whilst none of that material changed the recommendation of Mr Q, he was able to speak about the impact of that material.  He said that he can see that there is an immaturity to the father and an inability to both conceive boundaries and to respect them.

1. He said that, in his opinion, equal time for X would not work.  He said that he was still concerned about the ability to communicate especially in considering the evidence of the mother that the communication is still being conducted through her own parents. 

2. He spoke generally about the evidence of the benefits of a child maintaining a relationship with both parents and the detriments of not seeing one parent.  But he said that this had to be weighed up against mandating a parent to be involved with the other parent.  If the parenting capacity of one of those parents is going to be compromised by such an order, the benefits of such a regime must be weighed carefully.

3. He spoke of the benefits and detriments of long-term supervision.  He said that as the child grows, at least she has the benefit of some contact.  However, there can be a stigma as to the child asking “why does she need to be supervised” and “whether she were truly safe”.

4. At the end of his evidence, I asked Mr Q as to what could be done if it were that I found that there was no unacceptable risk to X posed by the father.  I asked this in the context of the mother, notwithstanding what I found, still believing that the father had the specific fantasies.  Mr Q was taken aback with the full description of the fantasies (as described by Ms J) and said that he, himself, could not get such an image out of his mind and did not know how he would cope if he thought that someone with such fantasies was having contact with his own child.

5. Mr Q said that there would have to be quite a deal of psychological assistance given to the mother to assist her in coping with any order for unsupervised time.

6. I asked conversely, if it were that I found that there was an unacceptable risk to X’s safety posed by the father, what benefit he could see in X spending any time with the father. Mr Q answered that he could see no benefit to X in such a situation.

The E-mails to Ms P

1. Another concerning aspect of the behaviour of the father was the e-mails he sent to the witnesses Ms P and Ms J just days before the trial.  These communications could be seen as interfering with a witness or attempting to pervert the course of justice.  Because of this, I issued the father with a s.128 certificate so he could answer any questions about this behaviour.

2. The second affidavit of Ms J was filed on 27 July 2020, about a week before the trial.  It can be inferred that the father received this affidavit very soon after the filing.

3. On 29 July 2020, at 1:03pm, the father wrote an email to Ms P.  I will reproduce the whole email so that it can be seen in context.  It reads (with my underlining) as follows:

   Hi Ms P,

   Thank you for being so rational and professional amongst all the dirt that the other side is trying to throw on me before the trial begins.  I will never forget that in the midst of all this hostility you did your best to conduct a professional assessment of me and gave me a fair chance. 

   Some things I wanted you to know before the trial.  The other party is trying to paint me in a negative light regarding my relationship with Ms J.  They are trying to say I forced her into the relationship, made her do things against her will and more.

   I am sharing this with you out of common courtesy, you deserve to know the truth.

   I moved away from Ms J numerous times over many years, to get away from her because she was mentally unstable at times with Bi-Polar and she had many opportunities to move on and get on with her life.  When I moved to City M in 2011, we have been separated for over 4 months, she contacted me and asked to come to City M and live with me.  I was reluctant but eventually agreed.  We were very happy.  I have attached a picture taken on the beach in R Beach in 2012 of us. 

   Please don’t believe the other sides lies.

   I have so many more photos and letters from her written to me after what the other side is alleging was a forced relationship.  This was never the case.  My sister will be giving evidence at the trial, so if you are listening in you will hear from Ms S, she lived with us, she is a lovely woman and she knows the truth, we were happy! 

   People seem to become filled with hate over the years.  Something changes within them.  But the past remains true as thankfully I have kept the photos and letters.  It was an unconventional but 100% consensual loving relationship over many years.  She was as curious as I was about trying new things.  The things she did not like we hardly ever engaged in, I respected her choices. 

   I have attached some letters she wrote to me years after we got together, please have a read of them to see the truth about our relationship and love. 

   Lastly, that old relationship has nothing to do with my love and care and protection for X, please remember that.  There is a lot against me at the trial, but we have a chance.  Should we succeed, X will have a loving, caring father in her life.

   Regards,

   Mr Biggs

4. Attached to the email were two letters from Ms J sent in 2013 and 2014, of which I have already commented earlier in these Reasons. 

5. It is somewhat troubling that, on the face of the email, the father appears to believe that Ms P, an expert appointed by the ICL, is personally invested in this particular matter.  But, more particularly, that Ms P has aligned herself to the cause of the father; so much so, that she “deserves to know the truth” and that the “chance” that the father has, is also her chance and the potential “success” that the father has, is also her potential success.

6. The father was asked about this particular email in his evidence before me.  He said that he knew that Ms P had conducted a fair assessment.  He said that he knew that she would read these things (the evidence and allegations of Ms J) and would feel “guilty”.  The father said that he was embarrassed by these details and, if Ms P believed them, she would feel “guilty”.  The father said that he wanted her to know that there was no truth to them and it was “common courtesy” for him to contact her.

7. Bizarrely, he then said that “I didn’t want to damage my relationship with Ms P”.  The father said that he was hoping to contact Ms P after these proceedings had concluded.  When Counsel for the ICL pointed out to the father that he did not have any relationship with Ms P, the father looked somewhat shocked and disappointed.  The father then seemed to change tack and explained that he thought that, after these proceedings had concluded, he could approach Ms P to provide ongoing psychological therapy for him.

8. The father reiterated, in answer to a question from me, that he only contacted Ms P because he thought that it was common courtesy and that she deserved to know the truth.  I then asked the father why it was that he did not send the same sort of email to Mr Q, the family report writer.  His reply was that he knew that Ms P was compiling an addendum report (which is correct because Ms P did provide an update report under cover of an affidavit filed 31 July 2020).  The father said that he did not think that Mr Q was going to be called as a witness in the trial, nor did he think that Mr Q would be given any of this new material.

9. This explanation is not logical, especially when one factors in that the father assumed (or hoped) that Ms P would be listening in during the whole trial.  It is inconceivable that the father did not hold a similar belief in regard to Mr Q.

The E-mails to Ms J

1. On 30 July 2020, the father sent three emails to Ms J.  The first email was sent at 4:20pm.  The subject was “She used you and you don’t know me anymore”.  It was sent from the father’s email address which was the same one that he had used when he sent the emails to Ms J in 2012.  The email address of Ms J was the same email address that Ms J was using back in 2012.

2. This email read as follows:

   Hi Ms J, I am just going to say this.  I am sorry that I hurt you in which ever ways is still festering inside you.  You may think you know me in 2020 but you don’t anymore, how many people do you know of that are the same person they were 10 years ago? Ms Simpkins used you, she wants sole custody of X so she can take her away from me to work as a scientist.  If you knew anything about X you would know how much she loves me.  I would never hurt X in any way - When a man becomes a father his sole instinct becomes to protect his children, believe me - you know this also. 

   What you and I experimented with, were just those, experiments. You were an open book willing to try anything and I love that so much, I had so many ideas in my head I wanted to try them with you.  I am sorry if you didn’t enjoy it some of the things we did.  When I would go to work and you would take videos and images of you pooping you said you did that for me.  We had anal sex the first night yes but you seem to have forgotten we only had a couple of time’s after that, I knew you didn’t like it so I respected that.  I thought you had potential to really like it someday so I wanted to give it a chance. 

   I don’t know what else to say other than you have no idea what a loss this is going to be if she loses her dad.  I didn’t have a dad growing up, the church took that for me.  I vowed even through all of this difficulty facing attacks from Ms Simpkins that I would never give up trying to give X the dad I never had. 

   I am not what you think I am.  I am a 41-year-old man now.  Not the young man with the boys mind who behave like an idiot so many times with you.

   I hope you are well.  I never closed my door to you, I was angry when you contacted me and the only thing you wanted was a bike and money and seem to go off at me with accusations.  All I wanted from you was to ask me how I was and if I’d become a better person. 

   I was good to Ms Simpkins, I loved her.  We had an argument and I yelled, nothing else.  I realise the error of my ways and did 26 weeks of men’s behaviour change courses.  I learned so much.  Everyone argues you know that.  I regret raising my voice to and now she had turned it into a reason to take my daughter away from me. 

   It breaks my heart every day. 

   I still think of you almost daily. 

   All the best, Mr Biggs

3. At 5:09pm on the same day, the father, from a different email address, sent the same email (with the same subject line) again to Ms J.  Ms J did not respond to either email.

4. At 5:17pm on the same day, the father, from the email address from which he had sent the 5:09pm email, sent another email to Ms J.  The subject was “I want to share with you a story about X”.  This email is as follows:

   X and I conversing about something recently at the family relationships centre and the supervising staff member Ms T said to X “That’s great X well done” and X replied to her “No, I was talking to Daddy”.  She is really bright and loves her dad, please don’t take this away from her.  If Ms Simpkins succeeds next week she will be free to take X away and she’ll lose something every kid deserves, a Dad. 

   I have tried so hard to be a good Dad to her in what little capacity I have had available.  Please don’t take this away from her.

   Mr Biggs

5. In his evidence before me, the father said that these emails to Ms J were apologies to her.  He claimed that he only mentioned the mother and X in these emails because he was trying to tell Ms J that he loved someone new and that he was a father.  It was put to the father that he sent the email to stop Ms J from giving evidence.  The father disagreed and said that Ms J and the mother “hate me and want me dead”.

6. The father said that he did not have the contact details of Ms J, but when he saw the emails in the mother’s affidavit, he saw her email address and decided to contact Ms J.  When it was pointed out to the father that the email address was exactly the same as it was eight years beforehand, the father claimed that he had sent emails to that address over the years and there had never been a response, so he believed that Ms J was not using that email address any more.

7. He could not satisfactorily explain why it was that he used two email addresses to contact Ms J.

8. It is difficult to see how either email sent to Ms J could be categorised as being “an apology”.  In all the circumstances, it is difficult to see that, by sending these emails to Ms J, the father had any intention other than to attempt to dissuade Ms J from giving evidence.

Assessment of the Evidence

1. There has been a great deal of evidence given in this trial.  Notwithstanding the amount of evidence that has been given on the subject of the allegations of Ms J, the Court is not, in any way, revisiting the conviction of the father for making and possessing CEM.  Nor is this Court passing any form of judgement upon the proclivities of the father with regard to his legal sexual preferences or fantasies.

2. The clear issue for this Court is solely whether the father poses an unacceptable risk for X.

3. I have grave concerns over the evidence of the father and especially his claim that he is a changed person who can be trusted.  The father looked me in the eye and gave evidence that the only CEM that truly involved him was the video that he made at Ms J’s insistence.  He said that any photographic CEM was created by Ms J and that it was a “technical” or “legal” possession rather than an actual possession of that material.

4. I specifically asked him whether there were any photographs that depicted him with Ms J smearing faeces on his genitalia.  He swore to me that there were no such images.

5. However, item 5 on the police list of exhibits found in the execution of the search warrant describes images of Ms J defecating on the father; images of Ms J smearing faeces on the genitalia of the father; images depicting the father engaging in vaginal intercourse, sodomy and fellatio with Ms J; and, images of the father ejaculating on Ms J’s back and mouth.

6. The father gave evidence that there was only one time where he recorded images of sexual activity with Ms J.  Item 7 from the material found by the police describes 42 images taken by the father over an 8 to 9 day period which depict sexual intercourse with Ms J, and that images were taken using a mirror reflection.

7. The father gave evidence that he did not have any fantasy of sodomising a child whilst the child was defecating.  Item 9 of the material found by the police describes video pornography of Ms J filmed by the father of him engaging in sodomy of Ms J whilst Ms J is defecating.

8. The father gave evidence that it was Ms J’s idea to film their encounter and yet, before he has had any sexual encounter with the mother, he has proposed to the mother that they film their encounter.

9. The father claimed that it was Ms J who would film herself defecating and that it was Ms J who had a predilection towards copraphilia, yet the mother gives an eerily similar description of requests made by the father - that the mother defecate in her underpants for him.

10. The father has claimed that any CEM in his “possession” was there solely because Ms J had looked at it or downloaded it.  The father claimed that he had no interest whatsoever in such material.  However the father’s own words from his draft letter contained in the 2012 email to Ms J are totally at odds with such a proposition.

11. The father claimed that he would “go to jail as a martyr for the cause of standing up for the liberties of ordinary internet browsers…” The father equates the crime of possession of CEM as being “greatly passive” and believes that no person is hurt in the process of someone “extracting a file with child pornography inside it”.  This could never be the sentiments of someone who had a distaste for such pornography and had nothing to do with the possession of such pornography.

12. I accept the evidence of Ms J that the father did tell her of his fantasies.  Such evidence is supported by her almost contemporaneous diary entry in late 2009.  The denials made by the father simply cannot be accepted.

13. The mother has described the father’s behaviour on the Skype calls as amounting to “grooming”.  As I explained to Counsel during the course of final submissions, behaviour amounts to grooming depending upon the particular circumstances.  I am not asked to make a conclusion as to whether or not the behaviour of the father amounted to grooming; and such would not be my task in any event.

14. However, all of this evidence leads me to the conclusion that I cannot put any trust or faith in the father’s statements that he has “seen the light”; that he has understood the mistakes of the past; that he has insight into the dangers confronting X; and, that he will be able to be the father that X deserves.

Application of the Act

1. The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).

2. 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.

3. 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.

4. 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”.

5. 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.

6. 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.

7. There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.

8. 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).

9. 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

1. 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

1. Turning firstly to the application of the primary considerations namely;

   a)   the benefit to the children of having a meaningful relationship with both parents

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

2. My conclusion as to these primary considerations are in summary:-

   a)   It is important to X that she has a meaningful relationship with both her mother and father, and

   b)     There is a great need to protect X from being exposed to the risk of family violence, harm or abuse.

3. My reasons for reaching those conclusions are as follows:

   a)   As Mr Q said, there is a lot of evidence of the benefit to a child in maintaining relationships with both parents.  X is no exception.

   b)     There is a large amount of evidence that the father poses a huge risk to X.

1. 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 I have, s.60CC(2A) does have relevance here.

Additional considerations – section 60CC(3)

1. Going through the considerations seriatim, I find as follows:-

   a)X is too young to be able to form any firm and considered view about this subject;

   b)I have taken into account the nature of the relationship that X has with both her parents as well as the relationship she has with her maternal grandparents;

   c)The mother has been X’s primary carer since birth and, apart from the first 20 days of her life, the father has played a minor role in X’s life.  This has not been for want of trying and the father has constantly attempted to play a much more significant role;

   ca)Whilst the mother has not been complimentary of the efforts of the father to assist her in maintaining X, I am satisfied that the father will continue to maintain any payments directed by the Child Support Agency;

   d)If the current situation were to change, I have taken into account what the effect of such changes would be in the life of X;

   e)At this point in time, the mother is working in Brisbane.  However, her work as a scientist may mean that she will have to leave Brisbane on a permanent, or semi-permanent basis.  I have looked at the effect of this circumstance and what this would mean for the relationship X has with the father;

   f)I am satisfied that the mother has the capacity to provide for the needs of X.  I have grave reservations that the father truly has the capacity to meet the emotional needs of X; in fact, he could be quite deleterious to those needs;

   g)I have taken into account the fact that X is female and is at an age younger than the age at which Ms J described the father’s fantasies;

   h)This circumstance does not apply;

   i)The mother has demonstrated responsibility. The mother understood that she needed to maintain communication with the father relating to X, even though she knew that she would not be able to cope with such communication.  Rather than have no communication, the mother responsibly enlisted the aid of her parents.  The father has not demonstrated that he has any insight into how the mother is feeling or what his true responsibilities are with regards to X;

   j)The father has committed family violence as I have already mentioned;

   k)I have taken into account the domestic violence order that is in place and why it is in place.  The father attempted to downplay this order saying, on a couple of occasions, that “I wouldn’t sign the consent to allow (the mother) to take X to Town F and the next thing that happens is that I’m hit with a DVO”.  The father would have me believe that the DVO was simply a device by which the mother could take the child to her area of employment, yet he admits that he has committed all of the behaviour that has led to the institution of such an order;

   l)In making these orders, I am mindful of the fact that an order that will allow for supervised time will, at some stage in the future need to be revisited by the Court;

   m)I have detailed, in these Reasons, all matters that I consider relevant.

Parental responsibility

1. 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.

2. In this case, having regard to the findings I have made regarding family violence, the presumption does not apply.

3. In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.

Conclusions

1. The mother and the father had a very short relationship and lived together for some 17 days after X was born.  Notwithstanding that the time that the parents lived together was so short, it was long enough for it to be obvious that the parents were not suited to a proper relationship.

2. The evidence discloses that the father was extremely manipulative and used to prey on the emotions of the mother to achieve his goals.

3. This was a case of history somewhat repeating itself in that the father used much the same techniques to prey upon Ms J.  There has been much criticism of Ms J by the father during this trial.  For instance, the father has claimed that Ms J had emotional problems he first met her, and in many messages sent to other people, describes Ms J as having a mental illness.  Even the sister of the father testified that Ms J had emotional problems.

4. Yet none of that stopped the father, who was almost twice Ms J’s age, from commencing a sexual relationship with this troubled child.  A reading of Ms J’s diaries shows how tortured she was by the manipulations of the father.  It was asked rhetorically, why would Ms J keep returning to the father if he were the vile creature he is painted out to be?

5. The answer to that is one that is obvious to anyone who has ever had to look at human relationships.  It is reminiscent of the story where a man goes to his doctor and says “Doctor, my brother thinks he’s a chicken”.  The doctor replies, “Well, why don’t you turn him in and have him committed?”  And the man replies “I can’t. I need the eggs”.  Despite all of what the father was putting Ms J through, she still needed “the eggs”.

6. The father prides himself that he was the only person who had ever helped Ms J, and yet he could never truly articulate, let alone particularise, what the help he gave actually was. 

7. The father involved this very young girl in his sexual fantasies and normalised such paraphilic behaviour as copraphilia.  This would not be so bad, in and of itself, but the father had the audacity to claim, to this Court, that such behaviour was all done on the initiative of Ms J.

8. It was the father’s idea to film the sexual escapades with Ms J.  He denied this to the police and claimed it was Ms J’s idea and not something to which he particularly wanted to involve himself.  Yet, before he ever has any sexual contact with the mother, he has suggested to the mother that they film their encounter.  This is an example of the father’s ability to lie to authority (and maybe even himself) if he feels that the truth will put him in a worse position.

9. I have little doubt that it was the father’s manipulations that caused Ms J to withdraw her complaint the day after the police executed the search warrant.  The letter that he drafted for Ms J to write to a doctor, was not meant to help Ms J but to help the father.

10. The father’s true attitude to CEM is displayed in the “draft letter” that he included in an email sent to Ms J in 2012.  Notwithstanding that he takes no responsibility himself and shifts it all to Ms J, he believes that possession of CEM is a passive crime because no one is actively targeted or hurt “in the process of extracting a file with child pornography inside it”. 

11. The father does not understand the concept of “boundaries”.  His email to Ms P is a clear illustration of this flaw.

12. The father claimed that he still cannot understand what he did wrong in the Skype calls and even asked his Counsel to submit to me that I should make a distinct finding that there is nothing wrong with the behaviour of the father in the Skype calls. Yet it is obvious that a child must understand boundaries and there should be no blurring of those boundaries.

13. The sending of the emails to Ms J amounts to conduct which, in my view, illustrates a consciousness of guilt.  The father knows that Ms J was speaking the truth and he was attempting to manipulate her, as he had done so well in the past, into not giving evidence in this trial.

14. Given the history of the relationship between the mother and the father and the evidence of Ms J, I am satisfied that the mother and father cannot communicate effectively.  I am satisfied that if the mother were forced to communicate with the father over important long-term issues for X, such would not be in the best interests of X.

15. It seems to me that in the best interests of X, I should order that the mother have sole parental responsibility.

16. It has been urged upon me, by Counsel for the father, that there is no other evidence before the Court, relating to risk, other than that of Ms P.  He has submitted that I am bound to accept it.  I reject that submission because it is a matter for this Court as to what evidence it accepts or rejects.  However, it is evidence that I should not lightly reject in the absence of evidence to the contrary.

17. In the end, the risk that the father presents to X, is one that must be looked at upon all of the evidence.  The risk may be seen as being “low” according to Ms P, but the risk is a cogent one.  It is a risk posed by a man who has had an inappropriate, albeit not illegal, relationship with a much younger girl.  It is a risk posed by a man who has disclosed fantasies of a most horrid nature which would involve his own daughter.  It is a risk posed by a man who cannot understand the evils of CEM.  It is a risk posed by a man who has Skype calls with a young child while he is in bed, surrounded by toys and has a sheet covering his nether regions.

18. I have considered whether such a risk could be ameliorated by long-term supervision as has been suggested by the mother.  I am of the view that such supervision would reduce any risk of sexual harm to X to an acceptable level.

19. However, there is a very big risk to X of emotional and psychological harm.  It is posed by a man who has a history of emotionally and psychologically harming those who have become close to him.  It is posed by a man whose boundaries are so non-existent that he cannot see anything wrong with sending emails to witnesses on the eve of a trial.  I cannot see how long-term supervision can reduce this risk.

20. I agree with Mr Q who opined that, if the Court found that there was an unacceptable risk to X, there could be no benefit to X, and no real justification, to allow the father to have contact with her.  I will make an order prohibiting contact between the father and X except on the terms that have been proposed by the ICL.

21. The mother has made an application for me to order that X have a passport and be allowed to travel overseas.  I do not see why they would need to be a separate order for this if it is that the mother has sole parental responsibility.  However, having regard to the discussions I had with Counsel during the course of submissions, I have decided, out of an abundance of caution, to make such an order.

I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 26 August 2020