Billings and Lyon
[2017] FamCA 112
•2 March 2017
FAMILY COURT OF AUSTRALIA
| BILLINGS & LYON | [2017] FamCA 112 |
| FAMILY LAW – CHILDREN – with whom the children live – with whom the children spend time – where the parents effectively implemented an equal time arrangement between about March 2011 and December 2014 – where the mother’s new partner has previously been convicted of sexual offences against children – where the mother did not tell the father of her partner’s convictions – whether the mother’s new partner poses an unacceptable risk of harm to the children – where the mother and her partner have a young female child and where the birth of their son was expected to occur in mid-2016 – whether a permanent injunction restraining the mother from permitting the children to come into contact with her new partner is considered appropriate for the welfare of the children – injunction granted. |
| Child Protection Act 1999 (Qld) Child Protection (Offender Reporting) Act 2004 (Qld) |
| Banks & Banks (2015) FLC 93-637 |
| APPLICANT: | Mr Billings |
| RESPONDENT: | Ms Lyon |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6888 | of | 2012 |
| DATE DELIVERED: | 2 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 4-8, 11 and 12 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Simonidis Steel Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Grainger, Legal Aid Queensland |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER, FROM THE DATE ON WHICH THE CHILDREN ARE TO TRANSITION BETWEEN THEIR PARENTS’ HOUSEHOLDS ACCORDING TO THE EXISTING INTERIM PARENTING ORDER, THAT
All previous orders are discharged.
The children B, born … 2004, C, born … 2004 and D, born … 2007 (“the children”) live with the father.
The father have sole parental responsibility for the major long term issues for the children, with such issues to include but not be limited to:
(a) the children’s education;
(b) the children’s religious and cultural upbringing; and
(c) the children’s health.
Except in the event of an emergency involving the children, the father shall consult the mother about decisions to be made in the exercise of his sole parental responsibility as follows:
(a)the father shall inform the mother in writing about the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)the father shall give the mother fourteen (14) days to respond in writing; and
(c)the father shall consider the mother’s written response when coming to his decision; and
(d)the father will inform the mother in writing of the final decision he has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children whenever they are in his or her respective care.
The mother be restrained, and an injunction issue restraining her from allowing the children B, born … 2004, C, born … 2004 and D, born … 2007, from having any contact whatsoever, whether directly or indirectly with Mr E (also known as Mr E, and/or Mr E and/or Mr E), born … 1973, by whatsoever name he is known.
The children shall spend time with their mother during school terms as may be agreed between the parties in writing, but failing agreement:
(a)each alternate week from after school Friday until the commencement of school Monday, or 3.00 pm if Monday is a pupil-free day or not a school day; and
(b)from after school Thursday until school on Friday each alternate week.
For the purpose of the children’s time with their mother pursuant to Clause (7), the mother shall collect the children from school at the commencement of their time with her and shall return them to school at the conclusion of their time with her.
The operation of Clause (7) shall be stayed during all school holiday periods and shall recommence in the first week after school starts for the Term:
(a)when the children have spent the first half of the holidays or the second last week of the holidays with their mother: with the time provided for in Clause (7)(a); and
(b)when the children have spent the second half of the holidays or last week of the holidays with their mother: with the time provided for in Clause (7)(b).
The children shall spend time with their mother for half of the school holiday periods at the end of Terms 1, 2 and 3 in each year, as agreed between the parents in writing and failing agreement:
(a) in odd numbered years: for the first half of the school holidays; and
(b) in even numbered years: for the second half of the school holidays.
The children shall spend time with their mother for half of the school holidays at the end of Term 4 in each year, in the manner agreed between the parties in writing, but, failing agreement as follows:
(a) for the first, third and fifth weeks in odd numbered years; and
(b) for the second, fourth and sixth weeks in even numbered years.
For the purposes of the children’s time with their parents during school holiday periods pursuant to Clauses (10) and Clause (11), the parent into whose care the children are transitioning shall collect the children:
(a)when time is to occur for the first half of the school holidays: at 9.00 am on the first Saturday of the holiday period; and
(b)when time is to occur for the second half of the school holidays: at 9.00 am on the middle Saturday of the school holiday period; and
(c)otherwise – changeovers during school holiday periods shall occur at 9.00 am on Saturdays.
Unless otherwise specified in this Order or agreed between the parties in writing, the mother shall collect the children from outside the carpark at the Suburb AA State High School at the commencement of their time with her and the father shall collect the children from the outside of the carpark at the Suburb AA State High School at the conclusion of their time with the mother.
The children spend time with their parents during the Christmas period each year in the manner agreed between the parents in writing and, failing agreement, as follows:
(a)with the father: from 9.00 am Christmas Eve to 4.00 pm Christmas Day in even numbered years and from 4.00 pm Christmas Day to 9.00 am on the day after Boxing Day in odd numbered years; and
(b)with the mother: from 9.00 am Christmas Eve to 4.00 pm Christmas Day in odd numbered years and from 4.00 pm Christmas Day to 9.00 am on the day after Boxing Day in even numbered years.
The children shall spend time with their parents on the children’s birthdays in the manner agreed between the parents in writing and, failing agreement, as follows:
(a)if not already spending time with the mother on those days: the children shall spend time with her from after school or 3.00 pm that day until before school or 9.00 am the following day; and
(b)if not already with the father on those days: the children shall spend time with the father from after school or 3.00 pm that day until before school or 9.00 am the following day.
In the event that, as a consequence of the operation of Clause (7)(a), the children would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the children shall instead remain with him for that weekend.
In the event that, as a consequence of the operation of Clause (2), the children would not otherwise be spending time with the mother on the weekend on which Mother’s Day occurs, the children shall instead spend time with her from 3.00 pm or after school on the Friday immediately before Mother’s Day until the commencement of school on the day after Mother’s Day, with the mother to collect the children from school at the commencement of this time and return them to school at the conclusion of this time.
Each parent is entitled to have another person attend changeover on their behalf, provided that any such person is known to the children.
The parent with whom the children are living or spending time shall ensure that the children telephone the other parent each Wednesday between 6.30 pm and 7.30 pm.
The children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.
Neither parent shall denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings nor the allegations made herein with the children unless such discussion occurs in either therapy or counselling, including any therapy or counselling intended to support the children in understanding the rationale underpinning these Orders, or in the manner suggested by a therapist or counsellor.
During the time the children are with either parent, that parent shall:
(a) speak of the other parent respectfully; and
(b)not denigrate or insult the other parent in the presence or hearing of the children; and
(c)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Each parent shall keep the other informed of the children’s doctors, health care and other treatment providers and, by this Order, such practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the children.
Each parent shall inform the other parent as soon as reasonably practicable of any significant medical condition, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to release the children’s medical information to both parents.
Each parent shall keep the other informed of any day-care, school, educational facility or extra-curricular activity provider and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or day-care, school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including, but not limited to, carnivals, sports days, fetes, concerts, plays and parent/teacher interview.
Each parent shall keep the other parent informed at all times of their residential address, contact telephone number and a contact email address and notify the other parent at least 30 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.
The parties shall keep one another informed of those matters required by this Order via email to an email address advised by each party to the other.
Neither parent shall enrol any child in any extra-curricular activity which is to occur during the time the children are with the other parent without first consulting with that parent.
The parents shall cause the children to attend upon their counsellors at F Psychology Centre, at such times as can be accommodated by that service, for the purpose of explaining the Orders made by the Court to the children and, in order to facilitate this attendance and explanation:
(a)the parties shall attend upon F Psychology Centre for such periods as is recommended by the children’s counsellor/s from F Psychology Centre; and
(b)both parents shall follow the reasonable directions of the children’s counsellor/s from F Psychology Centre in relation to the children’s ongoing attendance there; and
(c)pursuant to s 121 of the Family Law Act 1975 (Cth), the father has leave to provide a copy of this Order and Reasons for Judgment to the children’s counsellor/s at F Psychology Centre; and
(d)the father shall be solely responsible for the costs of the children’s counsellor/s from F Psychology Centre.
The parties are at liberty to provide a copy of the Reasons for Judgment published with this Order to any therapist or counsellor upon whom the children attend.
Within seven (7) days of the date of this Order, the Independent Children’s Lawyer shall provide a copy of the Reasons for Judgment published with this Order to:
(a)the Department of Communities, Child Safety and Disability Services; and
(b)the Commissioner of the Queensland Police Service.
Upon compliance with Clause (34), the Independent Children’s Lawyer’s shall be discharged.
All outstanding applications are dismissed and removed from the list of pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Billings & Lyon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6888 of 2012
| Mr Billings |
Applicant
And
| Ms Lyon |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Many cases which come before this Court each year involve the determination of whether children will be at an unacceptable risk of harm if they spend time with a person (usually a parent) in respect of whom there are allegations of inappropriate conduct. The deliberations in such cases frequently involve determining whether an allegation that a parent has “touched” their child in a particular manner is indicative of abuse or explicable in the context of usual, day-to-day parenting. That is, the issues to be resolved include whether, in fact, the parent or person engaged in behaviour which is, in fact, inappropriate or abusive and, if so, whether children will be at an unacceptable risk of harm if permitted to spend time or unsupervised time with that parent or person.
This is not such a case.
In this case, a significant issue is whether the parties’ 12 year old twin boys, (B and C) and nine year old daughter (D) are at an unacceptable risk of suffering harm via sexual abuse if they resume contact with the mother’s partner, Mr E[1] who, on his own plea of guilty in 2002, was convicted of a number of offences of child sexual abuse.
[1]Mr E, also known as: Mr E, Mr E and Mr E.
Other issues include the mother’s capacity to provide for the children’s needs (particularly in acting protectively of them) in light of her attitude to Mr E’s previous offences, the impact on the co‑parenting relationship of the manner in which the mother dealt with her knowledge of Mr E’s abusive behaviours and, given the manner in which he learned of Mr E’s past behaviours, the impact on the father’s willingness to trust the mother to act as a protective co-parent.
There is no issue here that the children have, to date, benefitted from the fact that they have a meaningful relationship with both of their parents. The importance to them of having such relationships was implicitly recognised by the parental agreement which saw the children live for equal periods of time with each parent from after the parental separation in March 2011 until early December 2014.[2] After a period of approximately eight weeks (when they remained living primarily with their father and spent much more limited time with their mother) and after an interim Order was made on 3 February 2014, the children resumed a week-about living arrangement.
[2]The parties implemented a week about living arrangement for the children from about October 2014.
By this Order, Judge Coates restrained the mother from permitting the children from having any further contact with Mr E. There is no evidence that the mother and Mr E have not complied with the Order.
Consequently, since that time, it seems Mr E has lived elsewhere during the week the children live with their mother. This has meant there has been a restriction on his ability to spend time with G (his now two year old daughter with the mother), whose birth in 2014 precipitated the dissemination of information about his previous convictions. That is, Mr E and the mother parent G (and, presumably, the child who was due to be born in mid 2016) together during the week B, C and D live with their father but Mr E moves out during the week these children live with their mother. Mr E has, however, continued to spend time with the mother and G at the home when B, C and D are at school.
The father seeks that the interim order restraining the mother from allowing the children to come into contact with Mr E be made final. The mother’s formal position is that the interim order should be discharged.
In implementing the equal time parenting arrangement since their 2011 separation, both parents have, apart from any issues associated with the revelations about Mr E’s history of child sexual abuse, generally participated in decision-making about major long term issues relating to the children and have otherwise been fully involved in their lives; both have fulfilled their respective obligations to maintain their children and both have demonstrated (by their actions in parenting their children) that they are committed to discharging the responsibilities of parenthood. The longevity of the parenting regime has also demonstrated that there are no practical difficulties or expenses, associated with this regime, which have substantially affected the children’s right to maintain personal relations and direct contact with both of their parents on a regular basis.
Whilst the mother now raises various concerns (including assertions of family violence – which the father denies) about the father’s parenting capacity, the reality is that, until he retained the children in December 2014, she was content for them to live with him in an equal time shared parenting arrangement. Similarly, until the father learned of Mr E’s previous convictions, he was content that the children live with their mother in an equal time shared parenting arrangement. That is, despite their respective views of any asserted difficulties or deficiencies (other than those arising out of or associated with the fact of Mr E’s convictions for child sexual abuse) in the manner in which each parent approached the care of their children during those periods they were living with them, neither parent took any action before December 2014 to bring about a change to the amount of time the children spent with each of them.
There is no real issue here that the children generally have good and well established relationships with each of their parents. It is also accepted that, until they were prevented from spending time with Mr E from late 2014, each child had a good and relatively well-established relationship with him: these relationships had developed since no later than about July 2013 when Mr E started to live with their mother.
It is far more likely than not that B, C and D each have a good and well-established relationship with both grandmothers - each of whom have been regularly involved in their day to day care at varying times. It is also highly likely that each has a good and well-established relationship with their two year old half-sister, G. Provided they are afforded sufficient opportunity to spend time with him, it is also highly likely that they C, over time, develop good and well-established relationships with the son (their half-brother) who was due to be born to their mother and Mr E in 2016.
All of the children want the equal time parenting regime to continue. Each child has expressed the view that this is the best parenting regime for them.
Whilst all of the children initially expressed some distress and upset at their inability to spend time and interact with Mr E, C has been the most vociferous in expressing his anger that he has been prevented from seeing Mr E. He, in particular, blames his father for this fact. Consequently, it is highly likely that C’s relationship with his father has been damaged - to some extent - by the changes which followed the revelations about Mr E’s past behaviours.
I accept that the father has said nothing to the children about Mr E’s sexual offending against children. I accept he has deliberately shielded them from this knowledge. Consequently, none of the children know[3] the specifics or particulars of Mr E’s offences against children. Whilst it seems to be more likely than not that the children have now forgotten much of this, they have previously been told by Ms H[4] that, a long time ago, Mr E was supposed to keep some children safe and did not do his job and that, whilst there were some serious consequences for him (Mr E) because of this, their father is still worried he might not have learned his lesson.
[3] From him at least.
[4] A therapist engaged for this purpose.
I find that the father has maintained his silence about the reason he has acted to prevent the children from spending time with Mr E in the face of what is highly likely to have been particularly vehement and harsh criticism of him by C, in particular. That he has stoically shouldered the burden of this criticism and borne the negative impact on his relationship with C of his decision to act to end the children’s interaction with Mr E without yielding to the temptation to make sure the children know the ‘truth’ underlying his position is, in my view, a credit to him as a parent. It is also a clear demonstration of his capacity to date to keep his own views and opinions about Mr E’s conduct from the children.
As it seems likely that such capacity has been buttressed by the existence of an order prohibiting the mother from bringing the children into contact with Mr E, his future capacity to maintain this silence, if the children resume interaction with Mr E, is unknown.
Rather than appreciating his conduct, the mother has continually and stridently criticised the father for failing to tell the children why they have been prevented from spending time with Mr E. I am unable to comprehend the basis of her criticisms. I have found it impossible to understand how she cannot appreciate that the father’s silence about Mr E’s abusive behaviour toward children has likely protected her relationship with B, C and D: it has meant that she has not yet been placed into a situation of having to justify to them why she is in a relationship with a man who, on four occasions, inserted his finger into the anus of a four year old male child, who placed his penis against the anus of that male child, who took and retained photographs of those behaviours, who photographed an eight year old male child’s genitals and who had many other photographs and videos of child pornography in his possession.
I also fail completely to understand how the mother has not appreciated that, in maintaining his silence to the children about Mr E’s abuse of other children, the father has acted to protect them from having to attempt, at this time, to understand and deal with the information that the person who is the father of their half-siblings is also the perpetrator of such abuse.
Issues such as these will clearly need to be addressed therapeutically at some time in the future, if for no reason other than that – as opined by Ms I (the author of the Family Reports) - not all of those with whom the children interact may be as understanding of Mr E’s past abuses of children as their mother.
It is clear to me that it is in the children’s best interests for the orders to be explained to them by someone other than their parents - preferably, by someone with the expertise to outline, if it is thought appropriate and beneficial to the children and in an age-appropriate manner, the reasons which underpin them.
Mr E
Ms I succinctly summarised the manner in which these parents have approached the issue of whether or not Mr E poses a risk to their children when she said that the father believes that no risk is acceptable, whilst the mother believes that there is no risk.[5]
[5] Exhibit 1 at [109].
The strength with which the mother believes that Mr E is not a risk to the children is demonstrated by the fact that, when asked by a child safety officer in January 2015 whether she was prepared to take the risk of sexual abuse of her children, she said “Yes”. [6]
[6] Exhibit 2, Tab 9, p 14.
Given that, when the trial commenced, the orders sought by the mother included a discharge of the current prohibition on the children spending time with Mr E, it is clear that her current, underlying position remains as expressed during the January 2015 interview.
It is accepted that none of the children have ever suggested that Mr E has abused any of them in any way. Further, Mr E says that, despite having regular contact with the children from about March 2013 until early December 2014, he has never abused them, has no interest in harming them in any way and does not intend ever to harm them.
Irrespective of the absence of complaint by the children and Mr E’s assurances, the father’s position is that Mr E’s previous convictions for child sexual abuse mean that the children will be at risk if they spend any time with him in the future. He advances that, even if it is thought that this risk is ‘low’, any risk is unacceptable. Further, he says that, when considered overall, the mother’s actions have demonstrated clearly that, where Mr E is concerned, she is incapable of acting protectively toward the children - consequently, he says, she is incapable of supervising Mr E’s interactions with the children in a manner that will ensure their safety.
Given the manner in which the mother has managed the issue of Mr E’s previous convictions for child sexual abuse, the father does not trust that she would hear any complaint by any of the children if it suggested inappropriate behaviours by Mr E toward them or was in any way critical of his interactions with them. Additionally, the father considers the mother would positively act to ensure he was not made aware of any matters which might, in any way, suggest that any child had been harmed by Mr E and, as such, would positively act to undermine his ability to act protectively of them. In essence, the father says that the mother’s loyalty to, and support of, Mr E is so absolute that it has completely overwhelmed her ability to assess issues involving Mr E dispassionately and/or free from Mr E’s influence.
The mother has always maintained that Mr E is not a risk to the children. She has, I think, been steadfast in her refusal to accept even the suggestion that there is any chance at all that the children may be at risk if they spend time with him. She has repeatedly stated that Mr E’s offending occurred long ago and that he has “done nothing” since then. She has enjoined with him in an attitude that challenges the necessity for any assessment of his past offending: her position is simply to state that “that” was all in the past.
She has, I think, supported Mr E in holding and advancing the view that he is the victim of an unfair and unnecessary inquiry conducted through these proceedings. She has struggled to understand why the father has not simply accepted her assessment of Mr E: from her perspective, it should be an answer to all of the issues associated with Mr E’s presence in her home (and, thus, in the children’s lives) for her simply to state her assessment of him as someone who does not represent a risk to the children.
One of the mother’s consistent responses to the father’s position about Mr E has been to suggest that, in taking issue with Mr E’s interactions with the children, the father has been motivated by a desire to control her behaviour, or has acted as he has because he has not accepted the end of their intimate relationship.
I do not accept that this is the case at all.
In arriving at this conclusion, I have relied on a number of matters. The first is that the parents’ equal time parenting relationship persisted after Mr E moved to live with the mother in mid-2013. The second is that, in an affidavit sworn on 22 April 2014[7], the father said that a conversation he had with Mr E on 18 January 2014 (during which he says Mr E expressed concerns about the mother’s aggression toward the children and offered him his mobile telephone number) put his mind at ease: that is, it put the father’s mind at ease to know Mr E was looking out for the children. This evidence - given about nine months after Mr E moved to live with the mother and about seven months before the father learned of Mr E’s past convictions for child sexual abuse - is not, in my view, the evidence of a person who is attempting to control the mother’s behaviours, nor that of someone who has not accepted the end of an intimate relationship. Thirdly, when first spoken to by Departmental officers[8] on 1 December 2014 (before he knew anything about Mr E’s history of offending), the father said he had always thought the children were okay because Mr E was there.
[7]Annexure ‘SB-10’ to the affidavit of the father filed 28 August 2015; a document created for use in proceedings commenced by the mother under the Domestic and Family Violence Protection Act 2012 (Qld).
[8] From the Department of Communities, Child Safety and Disability Services.
In order properly to understand why the father submits that Mr E now poses a risk to the children that is not acceptable and that cannot be guarded against by the presence of their mother in the same home, it is necessary to consider the evidence about Mr E’s previous convictions. Such evidence, and that touching upon matters which have occurred since Mr E’s release from prison in 2005, is clearly relevant to the assessment of the magnitude of any risk Mr E may now pose to the children if they are permitted to resume spending time with him. It is also relevant to an appreciation of the father’s attitude to Mr E and of his attitude to the mother’s acted-upon resolve to attempt to keep information about Mr E’s past from him. The mother’s actions and her knowledge about Mr E’s past abuses at various times are also relevant to an assessment of her overall parenting capacity and her capacity to act protectively of the children in the future.
Mr E’s offences and associated deceptions
The victims of Mr E’s actual physical sexual abuse were two male children. They were unrelated to Mr E and unrelated to each other. They were four years of age and eight years of age respectively at the time he offended against each of them. He digitally penetrated the anus of the sleeping four year old on four occasions; he placed his erect penis against that child’s anus on two occasions; he parted that child’s buttocks to expose his anus. He fondled the genital area of the eight year old and parted the child’s fly to expose his genitals. He took extremely explicit photographs of each child and of his abuses of them. He also took other photos, with sexual overtones, of each child.
In addition, Mr E also participated in the vicarious abuse of an unknown number of children: namely, those whose images, captured in photos and on videos, he collected and possessed. He also had possession of a text, entitled “DY”, which described a nine year old boy and his father performing various sexual acts – these included anal penetration by tongue, finger and penis, oral sex and masturbation.
All of the offences occurred when Mr E was babysitting his victims. He had taken care of one of these victims – the four year old male child – on a number of occasions over an approximately 12 month period. In the case of his other victim – the eight year old male child – he had babysat him on a couple of occasions before offending against him in the manner summarised briefly above. The siblings of the victims (in the case of the four year old: his nine year old and six year old brothers; and, in the case of the eight year old: his five year old sister) were also present in the homes when Mr E offended.
None of Mr E’s offences against the children in his care would have come to the notice of authorities without adult intervention. Neither the four year old boy nor the eight year old boy said anything to their respective parents to alert them to the fact of their abuse. There is nothing in the evidence to suggest that either set of parents observed anything in their child’s behaviours to indicate that he had been sexually abused by Mr E.
Mr E himself initially attempted to divert his suspicious adult flatmate with a fanciful story that he had looked at certain website addresses - which included a number of named child pornography sites - because he was assisting the Australian and American governments in their fight against child exploitation. He attempted to convey that he was only trying to help prevent child pornography, such as that found on these sites, from being published on the internet. If his deception of his victims’ parents is excluded from consideration, this was his first known deception – or attempted deception – of an adult about his behaviours. It was also his first known attempt to justify, or excuse, or try to divert attention from, his behaviours.
At the time of his arrest, Mr E was working at a holiday care programme for children. When first spoken to by police at his home, Mr E told them he might have a few images of child pornography on his computer: “boys on boys.” This was his second attempt at deception and/or minimisation of the extent of his offending behaviours and his first attempt to deceive authorities and/or deflect them from appreciating the extent of his offending behaviours.
When told that police intended to obtain a search warrant to permit them to seize his computer, Mr E said there were about five images of child pornography, which involved acts of mainly teenage boys (some of whom might have been pre-pubescent), on his computer. This was his next attempt at deception and/or minimisation.
Mr E also told police he had obtained these images of child pornography from illegal clubs on the internet. There is no record he told them he had done so after receiving encouragement or ‘counselling’ over the internet from anyone, or that he had obtained these images in order to address the consequences of his own asserted childhood sexual abuse.
Mr E initially portrayed his involvement with child pornography as altruistic: that is, in actioning his professed motivation to stop the illegal child pornography sites from continuing, he sought out and accessed the ‘club sites’ (the names of which he was unable to remember because there were ‘too many’) using search phrases such as ‘little boys’ and then emailed Yahoo, an agency called American Child Protection (“ACP”) and even the ‘club sites’ themselves in his attempts to stop these sites from operating. This was a further attempt at deception and/or diversion and/or manipulation.
There is no evidence to suggest that, during these discussions with police about contacting the ‘club sites’, Mr E mentioned any internet interactions with a ‘counsellor’ or any person professing to be a ‘counsellor.’ There is nothing to suggest he told police, at this time, that he had been accessing these club sites in an attempt to gain assistance to deal with the aftermath of his own asserted childhood sexual abuse.
Mr E told police, in essence, that he had been emailing Yahoo, ACP and the ‘club sites’ for 12 months in his attempts to cause the cessation of the operation of these sites. However, computer crime squad investigators found no evidence that this was ever the case[9]: another example of Mr E’s attempted deception and manipulation.
[9] Exhibit 2, Tab 6, p 1.
However, this information does, it seems to me, amount to an admission by Mr E that he had been accessing the ‘club sites’ (which hosted what he said was “shocking child pornography”) for no less than 12 months. This admission counters any later suggestion that his interaction with child pornography internet sites was limited to that which occurred during the three to four week period which preceded his physical acts of abuse. This, in turn, is relevant to the evaluation of the bases on which later assessments of the risk currently posed by Mr E to children have proceeded.
Despite the fact that the ‘club sites’ were obviously illegal, contained this “shocking child pornography” and were set up so that visitors to them could see pictures of child pornography and enter into chat rooms (where they could see child pornography, have conversations and even post pictures themselves) Mr E did not report them to police: rather, he said he had been ‘thinking’ about doing so. I consider such assertion highly likely to be untrue.
Mr E also told police he had accidentally downloaded the ‘five or so’ images of child pornography (which he claimed was the extent of such material stored on his computer) and other material and had only been partially successful in deleting the same. However, examination of the computers, a hard drive, some CDs, floppy discs, media cards and a digital camera seized by police when they searched Mr E’s home revealed a far greater number than five images of child pornography. Given this, Mr E’s explanation about accidentally downloading images of child pornography was clearly another attempt at deception.
When police reinterviewed Mr E in relation to this discrepancy, he exercised his right to silence and declined to answer any further questions. It is in this context that his more recent claims to have co-operated fully with police at the time of their investigation into his behaviours needs to be seen.
Subsequent investigations of the devices seized from Mr E’s home revealed the following data: [10]
a)34 of 1715 webpage files (that is, two per cent) contained references to child pornography websites; and
b)less than one per cent (or less than 136) of 13,635 graphic image files contained images of child pornography; and
c)approximately 50 per cent of a further 1443 graphic image files (that is, approximately 721) contained images of pornography or child erotica and approximately 10 per cent contained images of child pornography; and
d)contained within compressed files, which could only be accessed via an encryption password “[password]”:
i)in zip file 1: approximately 95 per cent of 600 graphic image files (that is, approximately 570) contained images of child pornography and approximately 95 per cent of 27 movie files (that is, approximately 25) contained images of child pornography; and
ii)in zip file 2: 17 of 19 graphic image files contained images of child pornography; and
iii)in zip file 3: 33 of 34 graphic image files contained images of child pornography; it was here that the text document entitled “DY” was stored.
[10] Exhibit 2, Tab 21, p 6.
In addition to those images detailed above, police isolated and identified at least 143 photographs which Mr E had taken of the children he sexually abused.[11] Included within these images is what is described as a ‘catalogue depicting images of a young male person titled “MY”’.[12]
[11] Exhibit 2, Tab 21, p 9, [24], [14]-[17], [21].
[12] Exhibit 2, Tab 21, p 7.
When police attended at the homes of each of the victims, the four year old victim’s mother identified him in the images printed by police from Mr E’s devices; she recognised her kitchen, living room and the cargo pants, underpants and doona cover belonging to her child in these photos. Unsurprisingly, she was horrified and extremely distressed when she saw photographs of her son’s genital and anal areas, digital penetration of his anus and contact to his anal region by an adult male’s penis.
The mother of the eight year old victim was shown images of her son which focused on his mouth and his groin: one image also showed an adult male’s fingers opening the fly region of the child’s pyjamas to expose his genitals.
The parents of each child had engaged Mr E to babysit because, amongst other factors, he worked with children and had been involved in recreational activities which involved children. All clearly thought he would be a suitable role model for their respective children. Once informed of his abuses of their respective sons, the families understandably felt angry, upset, betrayed, deceived and violated.
When police reinterviewed Mr E about two weeks after their first contact with him, Mr E again exercised his right to silence - he declined to answer any questions posed by them in their attempt to put to him what they then suspected to be the wider scope of his offending behaviours.
As a consequence of the investigations summarised briefly above, Mr E was convicted, on his own plea of guilty, in the County Court of Victoria of the following offences:
a)producing child pornography – Count 1: a representative count constituted by having taken photographs (which include those within the catalogue titled “MY”) of both the boys, on a digital camera, between 2000 and 2001; and
b)sexual penetration of a child under 16 years (namely, digital penetration of the four year old) – Counts 3, 4 and 5: Count 3 itself is a representative count incorporating two acts of digital penetration in the lounge room whilst Counts 4 and 5 are constituted by further separate acts of digital penetration in the child’s bedroom; and
c)wilfully committing indecent acts with a child under 16 years (involving the four year old child) – Counts 2 and 6 to 9: Count 2 itself is a representative count incorporating two separate acts of placing his erect penis against the four year old child’s anus, whilst the other counts are constituted by fondling the child’s genital area with his hand, touching the child’s genitals and parting the child’s buttocks to expose his anus and genitals (at which time there appeared to be a glistening substance of some kind on the child’s buttocks and perineum region); and
d)wilfully committing indecent acts with a child under 16 years (involving the eight year old child) – Counts 10 and 11: parting the child’s fly to expose his genitals and photographing the child’s groin area whilst he (the child) was wearing boxer shorts; and
e)being in possession of child pornography – Count 12: constituted by Mr E’s possession of:
i)the digital images he had taken of the two boys; and
ii)the hundreds of other images of child pornography (referred to earlier) which showed naked pre-pubescent boys being fondled and penetrated by adult males, in various sexual poses and performing various sexual acts, including penetration of each other; and
iii)the 12 page text entitled “DY”.
The Court Outcomes Report[13] establishes that, on 6 May 2002, a charge of sexual penetration of a child under 16 years was either struck out or withdrawn in the Magistrates Court.[14] This charge is also mentioned in the “Summary of Charges”[15] which, whilst prepared as a guide only, outlines that Mr E was originally charged with two counts of penetrating the four year old child’s anus with his penis.[16]
[13] Exhibit 2, Tab 3, p 1.
[14] Exhibit 2, Tab 3, p 2.
[15] Dated 11 October 2001.
[16] Exhibit 2, Tab 6, p 1.
The first affidavit filed by Mr E in these proceedings (which were commenced after the father became aware of Mr E’s convictions for child sexual abuse)[17] contains no reference at all to a charge or charges alleging penile penetration. In a later affidavit, Mr E’s evidence is that he was ‘never charged with or convicted of penile penetration’.[18] Insofar as his assertion relates to a denial of being charged with penile penetration of a child, it is false.
[17] In January 2015.
[18] Mr E’s affidavit filed 2 February 2015 at [8] and [11].
Mr E attempted to explain this falsehood by blaming the mother’s then solicitor, who had prepared the affidavit. However, the affidavit is Mr E’s evidence: at the time he swore to it as being true, he alone - the person against whom the charges had been brought - was in the unique position of knowing that what he voluntarily swore to was, in this respect, false. I regard Mr E’s positive assertion that he was never charged with penile penetration to be an attempt at subterfuge, deception and minimisation.
The basis upon which Mr E was sentenced
In August 2002, a County Court judge sentenced Mr E[19] to a total effective sentence of five years imprisonment, with a non-parole period of three years imprisonment.[20] In doing so, she described his conduct as depraved; she thought it had an element of planning and premeditation to it. She noted the circumstances of his offences “comprise a dark and sinister shadow over a lifestyle which presented all the overt elements of decency and involved family support, widespread involvement in community groups, including sporting and education bodies, and other activities, and even [working] and babysitting” – activities which she described as involving extensive and continued contact with children of all ages.
[19]Who then had two known aliases: namely, Mr E and Mr E, although there is nothing in the evidence to establish why this was the case.
[20] Exhibit 2, Tab 3, pp 1 – 7: which detail the individual sentences for each offence.
As is now known to the father, her Honour said the following about Mr E:
You presented at all times as a harmless, responsible, caring and inoffensive man. You won the unstinting trust and confidence of the families of the victims and of the victims as well as colleagues, neighbours, your associates and family and all other people connected with you and your involvement in that wider local community and as well as in your … career.
The tragic circumstances of your sexually deviant behaviour and its deleterious effects on the victims and their families provide accordingly a sharp contrast to the aura of decency, friendship, trust and confidence which you projected. In all the circumstances words cannot express the shock and revulsion at your conduct.[21]
…
… It would appear that there was nothing at all which caused concern or suspicion on the part of the parents during the time that you were babysitting their children … By engaging in such abhorrent and depraved conduct whilst babysitting each of these young victims, you have breached the trust of each of the victims and each of their families. Furthermore, each of the young victims were in your care at the time you engaged in the shocking conduct, and you were responsible for their wellbeing and care and control. You clearly betrayed their trust.[22]
…
[Mr E], anyone in the community and anyone in this court who hears what has happened here cannot fail but to be shocked and reviled at your conduct, and the abuse of trust and betrayal that has taken place. This is worse for the parents of the victims who have been here in court and others who are close to young [XXXX] and [XXX] and their families … Words cannot express the shock, revulsion and concern and anxiety experienced by each of the parents of young [XXXX] and [XXX] in respect of these matters, and in particular, when they had to view the vile and evil photos you took of their innocent babes. Your offending impacts on the victims and their families in a way that is hard to imagine. You betrayed, and I say it over and over again, you betrayed and abused the trust of each of the victims and their parents and your offending took place when these young and innocent victims were in your care and control. Your conduct was that of a predator exploiting the young placed in your care, and as said previously, had a degree of planning and premeditation. One cannot conceive of the deviant and evil nature of that conduct.[23]
[21] Exhibit 2, Tab 21, p 25.
[22] Exhibit 2, Tab 21, p 34.
[23] Exhibit 2, Tab 21, p 42.
To the mother, Mr E presents as a harmless, responsible, caring and inoffensive man – a person with whom she has chosen to have two children. She has given him her unstinting trust; he has her complete confidence. The sentencing judge’s comments have made no discernible impact on her assessment of him. However, it is only common-sense to recognise the significant impact they have likely had on the father’s assessment of the risk to the children of interaction with Mr E. His assessment of the mother’s general parenting capacity and/or willingness to act as a protective co-parent has also been significantly negatively affected by the fact that the mother has persisted in her support of Mr E in the manner that she has, even when armed with knowledge of such comments.
The judge’s sentencing remarks also record that it had been put to her in a very positive way during the sentencing process that Mr E was in a “heterosexual and purely natural and ordinary relationship” with a Ms J,[24] whom he had met whilst on bail awaiting sentencing. She was about 19 years of age - nearly 10 years his junior. Given the nature of his offending, the existence of their relationship was asserted to be a positive future factor for Mr E.
[24] Who, it seems, gave evidence on Mr E’s behalf at the sentencing.
The sentencing remarks also record the judge’s acceptance of the evidence given by Dr K, a consultant psychiatrist. This evidence included his opinion that Mr E was “correctly described as a paedophile”.[25]
[25] Exhibit 2, Tab 21, p 36.
The sentencing judge also accepted the evidence of Dr L, Mr E’s treating psychologist. This was to the effect that his preliminary assessment of Mr E was that he was genuinely disturbed by his offending behaviour and his sexual thoughts and fantasies at the time, in that he genuinely did not want to harm children or to be a person who is sexually attracted to them. Dr K also reported that, in recent sessions, Mr E appeared to have been slowly starting to acknowledge that, as a teenager and a young man, he was confused about his sexuality, engaged in inappropriate use of pornography and experienced deviant sexual thoughts and fantasies involving teenage boys and young men.[26]
[26] Exhibit 2, Tab 21, p 40.
The reference to Mr E being sexually attracted to children and having sexual thoughts and fantasies involving teenage boys is, of course, particularly relevant given C and B’s age. Again, it is only common sense to conclude that the father’s concerns about Mr E’s interactions with his children – in particular, his sons – can only have been further heightened when he learned of these assessments.
Her Honour also referred to Dr K’s evidence that the photos of the boys were an obsession on Mr E’s part.[27] Whilst it is strictly unnecessary for the purpose of determining the issues in the present case, such assessment certainly provides at least some explanation for Mr E’s behaviour in failing to destroy the images stored on his electronic devices in the two day period between when he was confronted by his flatmate and when he was arrested by police.
[27] Exhibit 2, Tab 21, p 58.
Perhaps consistent with his initial approach to police, the letters of apology Mr E wrote to each of the victim’s families appeared to the sentencing judge to attempt to minimise his involvement. They did not specifically deal with the nature and extent of his offending.
Having earlier provided his flatmate and police with the accounts outlined in paragraphs [38] to [47] above, Mr E later advanced that his offending occurred in the context of attempts to deal with his memories of his own asserted childhood sexual abuse: that is, he asserted that, having engaged in counselling with an unknown person over the internet, he was, in essence, counselled to sexually offend against his victims in order to relive his own childhood abuse and, thereby, deal with the consequences of the same.
On the evidence before me, it appears that the first occasion on which Mr E advanced publicly that he had been sexually abused as a child arose after he had been charged with these very serious offences for which, on his evidence, he thought he was going to jail for life.
Additionally, the only evidence that Mr E was, in fact, sexually abused as a child comes from Mr E. This casts a very significant shadow over such assertions because he is clearly a person quite prepared to mislead and deceive and deliberately convey a false picture in order to advance his own objectives. Whilst some bases for these conclusions have already been discussed, more will become apparent later in these Reasons.
Dr K’s evidence[28] during the sentencing hearing certainly conveyed to the sentencing judge Mr E’s description that he had been the victim of what was described as an isolated, but particularly traumatic, incident at the hands of a predatory adult male. Whilst counsel for the prosecution before the judge submitted that she should not accept Mr E’s version of the incident - because his accounts to the various experts upon whom he had attended were inconsistent - her Honour accepted Mr E’s account that the event took place.[29]
[28] Exhibit 2, Tab 21, p 36.
[29]She did not, however, take it into account as a causal factor in his offending or as a mitigating factor in her determination of his sentence.
I do not know what Counsel for the prosecution relied on in particular as the basis for the submission to the sentencing judge that Mr E’s accounts to professionals were inconsistent. However, the evidence before me contains some inconsistencies in the reports by Mr E about his asserted sexual abuse as a child – for example:
a)in a Relapse Prevention package document dated 11 May 2005, Mr E described choosing the “five year old” victim because his age was close to his own abuse age;
b)during her first interview with Departmental officers on 26 November 2014, the mother said Mr E told her that, when he was about eight years of age and waiting for his mother after school, a man was in the toilet – he did not tell her any other details and had never told anyone until he was in his mid-20s, after his breakdown (which seems to have occurred after he was charged);
c)whilst he provided graphic accounts of his sexual abuse during his participation in the Sexual Offenders Program in jail, when he attended on Mr M in April-May 2015 for the preparation of a Risk Assessment, Mr E told him that he could not recall the details of his assault other than that he was violently sexually assaulted by an adult male in a school toilet block when he was about eight years of age;[30] he was very reluctant to discuss the event and said he blacked out at the time of the offence or had blocked the trauma from his mind;
d)when he spoke with Dr N in October 2015, Mr E told him he was the victim of a sexual assault in a toilet when he was about five or six; he had never spoken about this experience with anyone during his childhood and over the years had attempted to avoid thinking about it;[31] he said he was sexually abused in a public toilet in Grade One or Grade Two; was late getting picked up by his mother; the abuser followed him into the toilet, locked him in a cubicle and anally penetrated him; he believed he passed out for a moment; the abuser threatened he would ‘get’ his family and friends if he told anyone; he was terrified, in pain and bleeding – he did not report the abuse to his family.[32]
[30] Mr M’s report dated 4 June 2015 at [3.3].
[31] Dr N’s report dated 16 November 2015 at [18].
[32] Dr N’s report dated 16 November 2015 at [37].
During his three year incarceration, Mr E completed an intensive Sexual Offenders Program under the supervision of a prison psychologist. This programme required daily attendance for six months. During his participation in this course, Mr E authored various documents which are in evidence before me. These contain more graphic and detailed accounts of his asserted childhood abuse and his offending against his four and eight year old victims.
It is apparent from these accounts[33] that Mr E:
a)concocted a fantasy of digitally penetrating his four year old victim the night before he acted out this fantasy; and
b)decided to take a torch with him so as not to wake the children and also because his camera did not have a flash; and
c)chose one of his victims because he had to put pull-ups on him each night, he would be semi-naked (which would make it much easier to photograph him) and had his own room; and
d)started to see the child as a sexual object when he saw the child with an erection: that is, because he saw the child as “sexually active” as a consequence of this observation, he thought the child “probably wanted it”; and
e)thought that the child would be okay because he was asleep when violated and would not remember this; and
f)invented a situation in his own mind where he thought/felt that: his actions did not involve hurting the children (“it’s not hurting him”), he did not really do anything wrong, “just” taking photos was okay and not really bad; and
g)had decided that, if the child awoke, he could hide under the bed or would just tell him he was just putting his nappy on and that, as it was dark, the child would not even know who was in the room.
[33] Affidavit of Mr E filed 14 April 2016, Annexure “CJK4”
Such information now obviously forms part of the father’s knowledge of Mr E’s way of seeing the world at the time he committed the offences for which he was sentenced.
As well as the Sexual Offenders Programme Mr E also completed a Relapse Prevention Plan before his release from custody.[34]
[34] Affidavit of Mr E filed 16 January 2015 at [13].
What happened after Mr E was released from jail?
After he was released on parole on 10 August 2005,[35] Mr E travelled to Queensland to live with his parents. His parole conditions included that he submit to psychological assessment and treatment as directed, have no contact (supervised or unsupervised) with children or young persons without the written permission of his Community Corrections Officer and participate in the Sexual Offender Supervision Program as directed by that officer.[36] In the period from 31 August 2005 to 30 November 2005, he subsequently attended a Sex Offender Maintenance Program each Wednesday for two hours.
[35]His parole expired on 31 July 2007: Affidavit of Mr E filed 14 April 2016, Annexure “CJK5”.
[36] Affidavit of Mr E filed 14 April 2016, Annexure “CJK5” .
Mr E’s relationship with Ms J - referred to in the judge’s sentencing remarks – did not continue long after his release from incarceration. In fact, on his account, they separated immediately after his release and move to Queensland.
Whilst Mr E appeared to say that he had a number of other intimate relationships with adult females in the period between the end of his relationship with Ms J and the commencement of his relationship with the mother, his evidence about this issue is, I think, somewhat unclear - for example:
a)he told Mr M in April/May 2015 that, after his relationship with Ms J ended, he then had a ‘few’ casual relationships which commenced via introductions at work or via internet dating;
b)having told Dr N that he estimated having between 20 to 25 adult female sexual partners and a small number of long term relationships,[37] he outlined that, after the end of his relationship with Ms J, he remained single for a period, said he was only interested in forming a ‘meaningful’ attachment to someone and was less interested in pursuing sexual contact with women;[38] and
c)during his cross-examination, he said that, after his release from jail, he had relationships with one or two women per month over a two to three year period: of these, about half related to sexual encounters and about half were with women who had young children.
[37] Dr N’s report dated 16 November 2015 at [39].
[38] Dr N’s report dated 16 November 2015 at [43].
Such discrepancy as exists might, of itself, be of no moment in another case. Here, however, it assumes a little more relevance because one of the factors relied upon by those who provided opinions[39] about Mr E’s risk of re-offending is the extent to which he has been able to have, and maintain, intimate relationships with adults. It is clear that, whatever the nature and extent of Mr E’s prior intimate relationships, both risk assessments placed significant weight on the fact of his ongoing relationship with the mother and that their relationship has been productive of children. Further consideration of the mother’s role in her relationship with Mr E will follow later.
[39] Mr M and Dr N.
Mr E entered into a Relapse Prevention Strategy/Agreement in April 2007.[40] This records his commitment to be honest and take full responsibility for his sexual offences and behaviour. It contains the assertions that:
a)those times when his defences may be weak include when he is being secretive; and
b)he will be alert to possible danger signals, which include “beginning to lie – to other people and myself; having secrets including irrelevant unimportant ones”; and
c)he acknowledged, and was aware, that his high risk factors and behaviours included being inappropriately alone with children and keeping secrets from family and his support network.
[40] Exhibit 2, Tab 9, pp 22 & 23.
Counsel submitted, in essence, that Mr E has done nothing but be secretive (for example, about the nature and extent of his past sexual abuse of children) and tell lies to both the mother (for example, about the nature and extent of his past sexual abuse of children) and himself (for example, in denying that he had previously experienced sexual thoughts and urges about boys when the contents of documents he authored during his incarceration[41] make it clear that he concocted a fantasy about digitally penetrating a four year old and enacted the same).
[41]Relapse Prevention document dated 11 May 2005: Affidavit of Mr E filed 14 April 2016, Annexure “CJK4”.
There is much force in such submission.
Mr E’s approach to telling the mother about his past behaviours and his approach to his ongoing obligation to report specified information to police pursuant to the relevant legislation[42] provide opportunities to evaluate his established behaviours against these identified risks.
[42] Child Protection (Offender Reporting) Act 2004 (Qld) (CPOR Act) or by its earlier iterations.
Reporting obligations
Mr E’s obligation to report in the manner prescribed by the relevant legislation will end on 10 August 2020: that is, 15 years after his release on parole. As he first reported his personal details on 24 September 2005, he is required to report personal details each year within the month of September[43] and also to report changes to his personal details to police every quarter. Further, changes to matters such as his address, living arrangements and employment have to be reported to police within prescribed time periods.
[43] Exhibit 2, Tab 6, p 3.
The legislation also requires Mr E to report the names and ages of any children generally residing in the same household in which he resides and the names and ages of any children with whom he has unsupervised contact. Incidental contact with children is excluded from the obligation to report.
The legislation[44] requires that the officer who receives information from an offender (whether in person or by email) complete a document entitled “Acknowledgement of the Making of a Report”.[45] A reporting offender must be provided with a copy of this document – no doubt to ensure that there is clear proof on both sides about what has been reported by whom, to whom and when.
[44] s 28 of the CPOR Act.
[45]See, for example, the documents completed in relation to Mr E's report about joining the Suburb AA tennis club.
Because Mr E asserted that he was unaware of his obligation to report certain information on occasions or did not appreciate that he had to report in certain circumstances, it is instructive to consider what the evidence establishes about his previous reporting.
Reference to the records in evidence before me establishes the following in relation to Mr E’s reporting to police and police oversight of him between September 2010 and 1 July 2011:
a)on 6 September 2010: he made his annual report to a police officer at the Suburb O police station – at that time he was living at an address at Suburb P and he reported an affiliation (Suburb P RSL);[46] and
b)on 28 October 2010: he reported he intended to travel on a cruise ship travelling between 11 December 2010 and 18 December 2010;[47] and
c)on 9 December 2010: during a Compliance Check conducted by police, Mr E said he did not reside with, or have regular contact with, any children;[48] and
d)on 6 January 2011: Mr E reported he had returned from his cruise on 18 December 2010;[49] and
e)on 24 May 2011: Mr E reported, by telephone, the fact of his ownership of a new vehicle and its registration – he remained living at the Suburb P address.[50]
[46] Exhibit 2, Tab 7, p 15.
[47] Exhibit 2, Tab 7, p 17.
[48] Exhibit 2, Tab 7, p 19.
[49] Exhibit 2, Tab 7, p 20.
[50] Exhibit 2, Tab 7, p 23.
That he reported these matters to police establishes the extent of Mr E’s knowledge of his obligations to do so.
From at least 1 July 2011 onwards,[51] the obligations imposed on Mr E to report relevant information to police included, in summary, that:
a)within 24 hours of a change to the same, he report the details of any child who generally resided, for at least three days (consecutive or not) in any period of one year, in the same household as he did; and
b)within 14 days after a change, he report details of any change to, or in, the place where he generally resided (defined as being in a place at which he had resided for at least 14 days, consecutive or not, in any period of one year); and
c)at least seven days before leaving Queensland (or, if circumstances made it impracticable, then at least 24 hours before the intended travel) he report any intended travel outside of Australia and also report his return to Australia within 14 days of the same.
[51] Exhibit 2, Tab 7, p8.
On 24 July 2011, DS Q served Mr E with a “Notice of Reportable Offenders’ Reporting Obligations (as at 1 July 2011)” at the Suburb O police station. This document detailed the personal information Mr E was required to report to police and the time periods within which he was required to report any changes to such information.[52] It makes plain that, in addition to the matters outlined above, Mr E was to report ‘regular unsupervised contact with a child’ (defined to mean contact with the same child on at least three occasions in a one year period) within 24 hours of the same occurring.
[52] Exhibit 2, Tab 7, p 3.
I do not accept Mr E’s evidence to the effect he thought he had to report contact with a child only if he had contact with that child on 14 occasions in a one year period.
Reference to the records in evidence before me establishes the following in relation to Mr E’s reporting to police and police oversight of him between 2 July 2011 and the end of January 2013:
a)on 24 July 2011: Mr E reported a change to vehicle registration; removed a vehicle; provided details of an internet service provider; added two email addresses; provided details of an internet user name for Facebook and an internet identity for eBay and removed an old employment record[53] – he remained living at his Suburb P address;[54] and
b)on 14 September 2011: he made his annual report in which he reported “no changes”; and
c)on 12 December 2011: he added the details of a 4WD motor vehicle – he remained living at the same address at Suburb P;[55] and
d)on either 12 January 2012 or 23 January 2012: police conducted a Compliance Check by attending at Mr E’s Suburb P residence – nil issues and no offences were detected;[56] and
e)on 26 March 2012: police undertook another Compliance Check by attending at Mr E’s Suburb P residence: he provided details of his email addresses; he reported “Nil child associations” and reported having two cars;[57] and
f)on 20 September 2012: he made his annual report in which he said there were “nil changes”; he added an email address and changed his education details by adding (a then deferred) course. [58]
[53] Exhibit 2, Tab 7, p 26.
[54] Exhibit 2, Tab 7, p 32.
[55] Exhibit 2, Tab 7, p 36.
[56] Exhibit 2, Tab 7, p 37.
[57] Exhibit 2, Tab 7, p 38.
[58] Exhibit 2, Tab 7, p 44.
Again, that he reported these matters to police establishes the extent of Mr E’s knowledge of his obligations to do so.
When the mother met Mr E in about late January 2013, he was still living at his Suburb P address.
Matters relevant to Mr E’s[59] first offences of failing to report
[59] Under the name ‘Mr E’.
On 3 February 2013, water police issued Mr E with an Infringement Notice arising out of his operation of a boat that day. Whilst he was the only adult in the boat at the time, he had four young boys with him in that vessel. Two of these were children of a Ms R (a friend of his) and the other two children were their friends. Mr E subsequently admitted that this event was the second occasion during which he had been unsupervised in a boat with two of the R children. He also said he had been friends with Ms R for a long time, but she did not then know about his history of offending.
During his cross-examination, Mr E said that, after this incident, he telephoned Ms R and told her he had something to tell her about himself: “it’s in relation to child pornography”. His evidence did not include the assertion that he actually told Ms R he had been charged with, or convicted of, any offence. His evidence was that, after he told Ms R this very limited piece of information about his past, she told him she was confident he had not done anything to her children. Mr E was clear in his evidence during cross-examination that he did not, at that stage, tell Ms R about his convictions for digital penetration of a child, nor about anything other than possession of child pornography.
When he spoke with Mr M in April/May 2015, Mr E told him that he had not notified authorities of ongoing contact with a family he had met who had children. It seems the family to whom he was referring was Ms R and her male children. He said that, after spending some time at their place and later being invited to stay overnight, he had probably “already gone too far” for reporting requirements, thought he would be in trouble and avoided reporting out of fear of being in trouble. He said that, when stopped by the water police for a lifejacket check, he had just left the mother and grandmother of the children at the shoreline and was in the company of the children alone; he also said that the family continued to be supportive of him and “are aware of his offence history”.[60] Given my conclusions about Mr E’s overall approach to full disclosure about his past offending behaviours and that Ms R was not a witness, I hold considerable doubts about whether this is the case.
[60] Mr M’s report dated 4 June 2015 at [4.8].
The mother said that, in 2013, she had wanted to speak with Ms R to “clarify if she had been told the same story as I had”. Mr E provided her with Ms R’s telephone number to facilitate communication between them. It is more likely than not that he did so only after he had first spoken with Ms R. In that way, he could be sure that, when the mother spoke with her, Ms R would confirm to her (the mother) that she ‘knew’ about Mr E’s past: in fact, at that time, the most both women knew was that Mr E had previously been found in possession of child pornography. Such conclusion is consistent with the mother’s evidence that, when she asked Ms R what Mr E had told her, Ms R recounted “the same story he had told me”.
When the mother was asked during her cross-examination to particularise what specifically she was talking about when she used that phrase, she said: “Well, it was that – that he had possession of the pornography, for taking his own pornography, for receiving pornography, for, you know, photo-shopping photos for digital penetration …” (my emphasis). This suggests that the mother thought then that any photos showing digital penetration were ‘creations’ rather than records of actual events. However, in his Relapse Prevention document dated 11 May 2005, Mr E wrote (in effect) that, whilst he had faced approximately 15 counts/charges about photos, there were “only eight actual photos” and he had duplicated and lightened some of these on the computer.
On 8 February 2013, DS Q attended Mr E’s Suburb P residence to speak with him about the Infringement Notice issued on 3 February 2013 and the fact that children had been observed in the boat with him.[61] It was only then that Mr E reported the following “change of details” by providing or adding:
a)Ms R’s address at Suburb S as a secondary address; and
b)her three (male) children – who he said he was “regularly with” - as three child associations; and
c)details of a boat (inflatable) and a boat trailer; and
d)details of work phone numbers (both landline and 1300 number); and
e)change of employment details to a new work address at Suburb T; and
f)details of a new online gaming (PlayStation) username: “…”.[62]
[61] Exhibit 2, Tab 7, p 60.
[62] Exhibit 2, Tab 7, p 51.
DS Q spoke “at length” with Mr E about his reporting obligations in relation to children and about him residing overnight at Ms R’s residence. Mr E was warned about the time period/s for reporting the changes he had notified on 8 February 2013.[63]
[63] Exhibit 2, Tab 7, p 61.
Whilst the evidence suggests that DS Q faxed an Intake Advice Form to the South West Regional Intake Service of the Department of Communities, Child Safety and Disability Services (the Department) after this information had come to his attention,[64] there is nothing in the documentary evidence before me about what happened after that.
[64] Exhibit 2, Tab 7, p 11.
The records in evidence establish that, on 11 February 2013, the reported secondary street address at Suburb S[65] was noted: for reasons which are not apparent (other than my conjecture that this somehow relates to the date on which water police intercepted Mr E), it was said to have a start date of “3/2/13”. If this ‘start date’ is intended to indicate that it is the date on which Mr E’s obligation to report the existence of that address crystallised, then - given his admission that, for approximately two years before water police took up with him on 3 February 2013, [66] he had regularly been spending time at that address, including staying overnight on occasions when Ms R’s three male children (then 15, 13, and 10 years respectively)[67] were there - it is clearly wrong.
[65] Which is reported as having ‘ended’ as at 19 September 2014.
[66] “for the last couple of years”: Exhibit 2, Tab 7, p 3.
[67] Exhibit 2, Tab 7, pp 48-50.
As at 11 February 2013, Mr E was still recorded as living at his Suburb P address.[68] When he was interviewed by police that day, he said he knew he should have reported Ms R’s address and his interactions with her children but had made no attempt to do so.[69] At the end of his interview, he was issued a Notice to Appear for two charges of failing to comply with reporting obligations.[70] Charge 1 related to failing to report three child associations. Charge 2 related to a failure to report a secondary address.[71] Each charge was framed to encapsulate Mr E’s failure to report over the nearly 19 month period between 24 July 2011 and 11 February 2013.
[68] Exhibit 2, Tab 7, p 4.
[69] Exhibit 2, Tab 7, p 3.
[70] Child Protection (Offender Reporting) Act 2004 (Qld) (“CPOR Act”), s 50(1).
[71] Exhibit 2, Tab1, pp 8 and 9.
Whilst Mr E asked that the matter be heard as soon as possible (namely, on 19 February 2013)[72] he was, in fact, dealt with in the Magistrates Court at U Town on 19 March 2013. At that hearing, Mr E did not raise that he had a reasonable excuse[73] for failing to comply with his reporting obligations nor did he seek to avail himself of the defence that he had not received notice and was otherwise unaware of his obligation to report.[74]
[72] Exhibit 2, Tab 7, p 3.
[73] CPOR Act, s 50(3).
[74] Provided by s 50(4) of the CPOR Act.
It is, I think, relevant to note that, on two occasions during the period covered by the charges (namely, on 14 September 2011 and 20 September 2012) Mr E made his required annual report. On each occasion he reported ‘no change’ to his current circumstances. This was clearly false on each occasion.
Additionally, during a Compliance Check conducted on 26 March 2012, he reported “nil child associations”. This, too, was clearly false and seems likely to have involved him either lying directly, or by omission, to the police officer who conducted the check.
That is, there were three separate occasions before he was observed by water police on 3 February 2013 on which Mr E was specifically called upon to report changes to his personal arrangements, including those to his previously reported absence of ‘child associations’. The fact of these specific reporting opportunities erases any credibility from Mr E’s explanation that he simply forgot to report these child associations.
Despite the purpose of the legislation and despite failure to comply with reporting obligations being a crime[75] (the maximum penalty for which was then $33,000.00[76]or five years imprisonment), Mr E was convicted and fined $500.00 in total for both offences.[77]
[75] CPOR Act, s 50(2).
[76] 300 penalty units: a penalty unit being $110.00 in March 2013.
[77] To be paid within 28 days, in default of which he was to serve five days imprisonment.
Given the purpose of the legislation, such a sentence seems, with respect to the sentencing magistrate, to be wholly inadequate to reflect Mr E’s deliberate flouting of his reporting requirements over such a long period. It could hardly be thought to send to offenders, such as Mr E, a stern message about the need for strict compliance with the mandated reporting requirements.
In saying this, it is, I think, vital also to record the manner in which Mr E approached his sentencing and the information he placed before the Magistrates Court when he was sentenced on 19 March 2013. Whilst it is impossible to be 100 per cent certain, there is sufficient evidence to persuade me that it is more likely than not that Mr E approached his sentencing with the knowledge that there was a very real prospect that he might be imprisoned.
In the course of representing himself that day, he deliberately conveyed to the presiding magistrate that he had:
… a partner with a young family who are aware of the situation and she fully supports me. (my emphasis)
I have notified the relevant authorities about my new relationship and interactions with her children before I was legally required to report. All I wish to do is settle down, raise a family and enjoy my new found life…
However, at this time, his relationship with the mother could not in any way have been seen as one involving ‘partners’: after all, they had met no more than about six weeks earlier, any interactions he had had with the children could only have been extremely preliminary and all she knew about ‘the situation’ was his highly sanitised account that he had previously been in possession of child pornography (combined with the information he provided, at that time, that he was a victim of childhood sexual abuse).
When Ms I interviewed C again in June 2016, he was 11 years of age and in Grade 6 at CC School. He told her his parents were at Court because the children were not allowed to see Mr E. He thought his father thought Mr E was dumb - he had figured this out by himself.
C told Ms I Mr E should be allowed back in the house because he had done nothing to the children at all. He said his father was the only one who thought he had done anything to them. He clearly held his father responsible for keeping Mr E away from him. He also thought his father was lying to the children because he kept telling them it was the Court that was keeping Mr E away. It was clear to Ms I that C held his father responsible for Mr E’s absence from his life. When asked why he thought his father would want to keep Mr E away from the children, C said: “I have no idea. I do not know if dad’s gone mental or something.” C also expressed his view that, whilst his mother was the one who made his parents “split up”, his father was now trying to get “revenge”. No doubt the ideas underpinning these comments are the type of matters best addressed in supportive, therapeutic counselling.
Whilst C could remember attending on Ms H, he could not tell Ms I what she had explained to him. Rather, he said she did not explain anything and was “just weird”.
When Ms I referred C back to Ms H telling the children about Mr E touching children in their private parts, C said he had been told this and Mr E had got into a lot of trouble but it was dealt with. He said if that was the case, that was the end of it. C said Mr E had done nothing to hurt them at all.
He also expressed that “once” Mr E is allowed back with the children, he would like two weeks with mum and one week with dad until they have made up the time they were kept from her; after this, the parenting regime should revert to alternate weeks. The concept of ‘make-up’ time with the mother is a matter advanced by the mother also.
C said it mattered a lot to him to be able to see Mr E: they had lots of fun times, Mr E helped him conquer his fear of scary rides and helped him with his homework. He said his father helped with his homework too but his mother did not. He also told Ms I that, if he did not get to see Mr E in two weeks, he would “go out and call the police on everyone.”
There was no evidence before me at trial to suggest that C had acted on this statement.
D
When Ms I first interviewed her in February 2015, D was 7 years of age and in Grade 2 at CC School. She said she did not like it when they could not see their mother: she missed her. She told Ms I about how much she had missed her mother when they were not able to see her. In fact, she had asked her father if she could sleep with him because she had missed her mother. She said she liked Mr E and missed him - he was funny. She knew her father did not like Mr E. She thought her father thought he (Mr E) had been rude to them. She said she would like to live with her mother for more time than she presently did.
D attended five sessions of Personal Safety Education counselling at Bravehearts between 17 March 2015 and 28 April 2015. Despite initially presenting as quite shy, she reportedly engaged quite well.[233]
[233] Exhibit 2, Tab 9, p 47.
As at August 2015, D was assessed to be “faring the best” of all the children. However, she was scored “high” in the emotional area and is presenting with separation anxiety.
Having interacted with D for three sessions, Ms H concluded that, like B, she was accepting of her explanation about Mr E and, in essence, content for the adults to work things out.
When Ms I interviewed D again in June 2016, she was 8 years of age and in Grade 3. D told Ms I that, while she was not sure about why her parents were fighting in Court, some of it was about Mr E. She said she used to get on well with him; she was not sure why her father did not like him. Whilst she could remember seeing Ms H, she could not remember what she had spoken to her about.
D told Ms I she liked being with each of her parents equally. She wanted the week about arrangement to continue. She reported a preference for changeover to occur on a weekend day because she did not like having to take all of her belongings to school.
Ms I’s assessment of the children
After the June 2016 interviews, Ms I concluded that she was unable to determine whether the children did not want to think about Mr E’s previous behaviour towards children or whether they actually did not grasp what Ms H had attempted to explain to them about such behaviour.
Ms I assessed that, whether or not Mr E is permitted to return to the family unit, B and D were likely to settle down and continue with daily matters in their lives without too much disruption. She considered C to be carrying a great deal of anger - some of which she thought appeared generalised. She opined it was possible that Mr E’s exclusion from the children’s lives was (at least, partly) providing a focus for his expression of this anger.
I accept Ms I’s assessment that she doubted C would place himself in danger by running away if Mr E continues to be excluded from his life. Whilst it is certainly possible he may engage in challenging and potentially disruptive behaviour at home if this remains the case, the contents of Dr HH’s notes of his sessions with C (and each of his parents), suggest to me that it is impossible to casually link C’s behaviour and functioning to his inability to spend time with Mr E.
Effect on children of changes to their current parenting arrangements
The mother has said the children ask her on a daily basis when they are going to be able to see Mr E. She says this is the case because they miss spending time with him. She also says they often become anxious when she is driving them to extra-curricular activities because they are worried they may pass Mr E in his car: they have said that they would get into trouble if their father found out that they accidentally saw Mr E.
Given that such a belief is more likely than not to lead to the children concealing any interactions with Mr E from their father, I think it imperative that those entrusted with the difficult task of explaining the Orders (and, to the extent that it is thought beneficial for the children, the bases on which they have been made) to the children ensure that the children are clear in understanding that this is certainly not the case.
That this apparent belief remains even after the children have attended Bravehearts and their sessions with Ms H highlights the inherent limitations in expecting, even with the assistance of focused and expert counselling, that children appreciate that they are not to blame or at fault if adults choose to behave in a manner contrary to that which Orders require. It also highlights, for me, the necessity for it to be reinforced with the children that they will not be in any lasting, ongoing or irredeemable trouble with their father if they are open and honest with him about matters in their lives.
As already noted, I accept that all of the children want their week about living arrangements to continue. I am prepared to proceed on the basis that at least both boys positively want Mr E to be able to be at their mother’s home when they spend time with her and that D would certainly not be in any way oppositional to such a result.
I also accept that it is likely the children (D, in particular) will suffer some feelings of grief, loss and distress to varying degrees if their time with their mother is diminished. Obviously, any diminution in the children’s time with their mother will also limit their opportunity to spend time with G, their half-brother and their maternal grandmother.
Likely impact on the mother if the injunction continues
Ms I assessed that the mother will feel shattered emotionally if it is decided to continue to restrain her from bringing the children into contact with Mr E. She recommended that, if such an order was made, the mother engage in a therapeutic process to assist her to work through her feelings and, as far as possible, to be able to quarantine the children from her distress at such an outcome.
Given that the mother has previously engaged with her general practitioner, Dr EE in about mid-March 2015 and, via this engagement, obtained assistance provided under a Mental Health Plan,[234] I am confident she will be able to access such support again if necessary.
[234] Exhibit 2, Tab 19, p.1.
What orders are in the children’s best interests?[235]
[235]Whether the subject of specific discussion in these Reasons or not, I have considered all of those legislative provisions required to be considered so as properly to determine the issues in this case: Banks & Banks (2015) FLC 93-637.
I may, subject to s 61DA[236] and s 65DAB[237] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[238] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[239] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[240]
[236] Presumption of equal shared parental responsibility.
[237] Parenting plans.
[238] s 65D of the Act.
[239] s 60B of the Act.
[240] s 60CA and s 65AA of the Act.
I proceed on the basis that the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for major long term issues[241] applies. However, the circumstances here are such that I consider it is not in the children’s best interests for their parents to have equal shared parental responsibility for them.[242]
[241] as that term is defined in the Family Law Act 1975 (Cth).
[242] s 61DA(4) of the Act.
I have arrived at this conclusion taking into account that, if the Court makes an order that the parents share parental responsibility for their children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, then such order requires the decision to be made jointly by the parents.
The combination of the father’s complete absence of trust in the mother’s decision-making capacity; her hostility toward him and contentions that he has previously overborne her will; the matters which saw the instigation of this litigation; the impact of the mother’s determination to maintain her support of Mr E on the father’s assessment of her parental judgement and those matters otherwise already discussed in my consideration of the parental relationship, interaction and communication, persuades me that these parents are now highly unlikely to be able to make decisions about matters relevant to their children jointly.
The injunction
I have no confidence the mother will limit or monitor Mr E’s interactions with the children in any way if there is no restraint imposed upon her to do so. Her willingness to lie about her knowledge of Mr E’s history of sexual offences against children persuades me that she cannot be relied upon to act protectively vis-à-vis the children’s interaction with Mr E.
Further, when the children are living with her each alternate week, her household is comprised of five children. The demands of caring for them, given their respective ages and developmental stages, are likely to be such that – even if she were more committed to the task than I consider it likely she would be - she is unlikely to be able to know where all of the older children are at any given time; she could not realistically supervise Mr E’s interactions with all of the children all of the time.
Whatever her submissions, her actions establish that she has completely discounted the possibility that the children might be at any risk during any time with Mr E; she has resolutely ignored his complete deception and manipulation of her, despite the long-standing nature of the same. When considered in toto, her actions persuade me that she cannot be relied upon to watch vigilantly or to assess whether any actions by him toward the children – and the boys in particular – would place them at risk.
After much reflection, I have concluded that I cannot completely discount the possibility the mother would not properly listen to her children if they made a complaint to her about Mr E. It is much more likely, in my view, that she would find some way to explain away or excuse any such report – as being, for example, a misinterpretation of events or a mistake by the children or as being without foundation or as them over-reacting or being ‘silly’ or as something dreamed.
Given my considerations about her attitude to Mr E, her inability to countenance that he may pose a risk to the children, her willingness to act to deceive the father by failing to inform him about matters relevant to the children’s safety and her ongoing determination to support, excuse and explain away Mr E’s deception of her, I am not persuaded that the mother’s presence during any time the children might spend with Mr E provides a sufficient safeguard as to justify taking the risk that they may be harmed by him in the future.
Despite all of the matters revealed at trial, the mother’s submissions included – and, in my view, focused on - that it would be unreasonable for the children not to have the opportunity to see or interact with Mr E for the remainder of their childhood and that his absence from their lives would adversely impact their mental health[243] and negatively affect their well-being.
[243] There is no expert evidence to support such contention.
Given my conclusions about Mr E and the mother, I consider that an injunction restraining her from bringing the children into contact with him in any way is an order which is appropriate for the children’s welfare.
The children’s future living and care arrangements and the allocation of parental responsibility
When she spoke with Ms I in June 2016, the mother said she believed the week about parenting arrangement could not continue to operate. She also said she had never liked it.
However, the mother ultimately submitted that, in the event the injunction restraining her from bringing the children into contact with Mr E remained, the children’s current living arrangements should continue and Mr E would continue to absent himself from her home every second week.
I have given her submission about this issue significant consideration. Others may have concluded that, having determined that an injunction in the terms discussed is appropriate, the strength of the children’s relationships with their mother, the presence of two half-siblings in her home and the likely impact on the children (and, in particular D) of any change to the long-standing equal time parenting regime mitigates against making any change to the same.
After all, it might be thought that compliance with the injunction will remove all risk to the children in the mother’s home and nullify the impetus for any change to a long-standing parenting agreement which all of the children want to see continue.
However, after careful consideration, I accept the thrust of the submissions made by Counsel for the Independent Children’s Lawyer to the effect that a reduction in the children’s time with their mother may well ameliorate the likelihood of ongoing manifestations of the difficulties the children will likely face if they continue to be required to live every second week in such an environment.
In addition, I consider that the manner in which the mother has approached the issue of whether Mr E poses a risk to her children is demonstrative of a fundamental deficit in parental judgment and to the discharge of the responsibilities of parenthood. In contrast, I am easily persuaded that the manner in which the father approached the issues associated with Mr E’s presence in the mother’s life have demonstrated significant parental strengths.
Further, the mother’s views about Mr E and about the father’s attitude to the children spending time with him are unlikely to ameliorate in the future: a continuation of week about time with her will mean that there is an increased risk that the children will be exposed to the same, particularly after the orders make it clear that the previously interim injunction will continue on a final basis.
I have also taken into account the mother’s comments to Dr EE in about mid-March 2015,[244] when she complained of difficulty in managing the children given the requirement for Mr E to be absent from the home every other week. She reported having anxiety attacks and stressing every few days. The subsequent births of her other children are likely to have further exacerbated these difficulties and issues.
[244] Exhibit 2, Tab 19, p.1.
In arriving at the decision that it is in the children’s best interests for there to be a change to the current week-about parenting regime, I have also taken into account Ms I’s concerns (expressed in the clear knowledge of the children’s repeated wishes for a continuation of the current week about parenting regime) about the future viability of the week about parenting arrangement, given that the dispute about Mr E has eroded the parents’ trust and confidence in each other.
Whilst the most recent Family Report contains a recommendation that the week about parenting arrangement continue, Ms I departed from this during her oral evidence to ultimately express a tentative opinion in favour of increasing the children’s time with their father. In so doing, she also expressed significant concern about the impact of such a change to the current parenting regime – particularly upon D, whom she assessed as likely to miss her mother if unable to spend as much time with her in the future as she has in the past.
Whilst I have given this concern significant weight in my deliberations, I have ultimately concluded, after balancing all of the relevant considerations, that the children’s best interests will be better met by changing the current week about parenting regime to one in which they live predominantly with their father, the parent with whom there is absolutely no risk that they will be exposed to any belief system in which the sexually abusive actions of an adult toward children are minimised, justified or excused.
Whilst the Independent Children’s Lawyer advanced that the children’s best interests will be met by an order which affords them the opportunity to spend alternate weekend and holiday time with their mother, half-siblings and members of their extended maternal family,[245] I accept the submissions made by Counsel for the father in support of orders which afford the children the opportunity to spend time with their mother on a weekly basis.
[245] Excluding Mr E.
I have concluded that such a regime is better likely to ameliorate the impact on the children – and D in particular - of a reduction in their time with their mother. Weekly time will also provide the children with a greater opportunity to continue to develop their relationships with their younger half-siblings. Such a regime will better permit them to continue to maintain their relationships with their mother than a restriction of time, during school terms, to alternate weekends only. Additionally, time each week will mean that the children will not spend more than seven nights without face to face interaction with their mother and siblings and it will also mean that, whilst their time with them will be less than what it has historically been, it is not as limited as it would be if the children spent only each alternate weekends with their mother. The terms of the orders for the children’s time with their mother will also afford her the opportunity to interact with the children’s teachers and other relevant school personnel on a regular basis.
The allocation of parental responsibility
Given my conclusion about the parents’ likely inability to make necessary decisions jointly, my conclusion that the children’s best interests will be met by orders which see them live primarily with their father and spend frequent and regular time with their mother in the absence of Mr E and my conclusion about the parents’ respective parenting capacities[246], I consider that it is in the children’s best interests for their father to have sole parental responsibility for decisions about major long-term issues relating to them.
[246] As discussed in paragraph [522].
However, given the mother’s previous involvement (during the time they lived with each parent in the week about arrangement) in decision-making about matters relating to the children, it is appropriate that the father is required to consult her before arriving at his decision about any long-term issue.
Father’s Day and Mother’s Day weekends
Both parents submit that, if the children are not in their respective care on the relevant day (that is: with the mother on Mother’s Day and the father on Father’s Day), they should transition into their care on the afternoon before the celebratory day and return to the other parent late on the celebratory day. However, I consider it likely to be less disruptive for the children - particularly in terms of being required to transition between their parent’s homes – if the orders simply provide for them to spend the entire weekend on which the celebratory day falls with the relevant parent. This will also have the added benefit that changeovers can occur via school, something which I consider is highly likely to be better for the children in all the circumstances.
School holiday time
I accept that it is in the children’s best interests for them to spend equal time with each of their parents during each school holiday period. For all holiday periods other than that at the end of the calendar year, this will mean that the children have the opportunity to spend no less than a week with each parent.
The parents and the Independent Children’s Lawyer all advanced that the children should spend the first half of the end of year holiday period with their mother in odd numbered years and the second half with her in even numbered years. This, obviously, would see them spend a continuous period of no less than three weeks in her care.
If this is the case, the existence of the order prohibiting the mother from allowing the children to come into contact with Mr E will mean that she will be required to manage the care of all five of her children during this period without assistance. I am not persuaded that this is likely to be beneficial to the development of the children’s relationships with their mother or their younger half-siblings.
Consequently, whilst it is appropriate that the children spend half of the end of year school holiday period with their mother and their half-siblings, I consider this will be better spent in periods of no longer than a week at a time. In reaching this conclusion, I have taken into account that this will increase the number of transitions for the children and that both parent’s ability to travel away with the children for periods longer than a week at a time will be restricted.
Time on Christmas Day/Boxing Day
The mother’s evidence is that the children dislike leaving each parent’s home during Christmas Day to spend time with the other parent. Therefore, she proposed that the children spend alternate Christmas Days with each parent rather than share that day as has previously been the case. However, the father proposed that the children have the opportunity to spend time with both parents during this celebratory period in each year.
Whilst there are reasons which favour each of these competing proposals, I have concluded, on balance, that it is in the children’s best interests to have the opportunity to spend time with both of their parents and, presumably, members of their respective extended families, each year during this celebratory time.
In determining the times for the children’s transition between their parents, I have been mindful of the importance of attempting to limit the disruption to the children and the parents (and members of their households) of the same and have endeavoured to ensure that the children’s opportunity to have an enjoyable time in each of their parent’s homes is maximised.
If the mother wishes not to avail herself of time with the children each year during this period – whether to accommodate Mr E’s interaction with his children or for any other reason – it is open to her to propose to the father that the children remain with him.
Time on the parents’ birthdays and the birthdays of the children’s half-siblings
The mother proposed that specific orders be made to accord the children the opportunity to spend time with each of their parents and their half-siblings on the days of those relatives’ birthdays. Whilst such a proposal is certainly understandable, I am not persuaded that the disruption likely to be associated with the children transitioning between their parents’ homes on these occasions makes this beneficial for them. The regularity with which the children will be spending time with their mother and half-siblings will easily permit them to be involved in birthday celebrations close to, if not on, the actual days.
Changeover during school holidays
The mother seeks that the children transition between their parents at the Suburb AA train station. The intention of the orders is to limit parental interaction at transitions so as to minimise the risk that the children will be exposed to conflict. As there is probably little difference between transitions that occur at or near a school carpark and those which occur at or near a train station carpark, I consider that it is simply more consistent for the children and less likely to be productive of confusion between the parents if all changeovers occur at or near the Suburb AA State High school carpark.
Overseas travel
The parents agree that the children should be permitted to travel out of the Commonwealth of Australia to countries which are signatories to the Hague Convention. However, the mother does not approve of the children travelling with the father to countries (such as Thailand) which are not signatories to the Convention.
The relevant risk associated with children travelling outside of Australia to any country – whether a signatory to the Hague Convention or not - is that the travelling parent may not return them to Australia.
There is nothing in the evidence to suggest the father is likely to fail to return the children to Australia.
I consider the most appropriate way to deal with the issue of the children’s travel outside of Australia is simply to require the parent who intends to remove the children from Australia for holiday travel to notify the non-travelling parent of such intention and to provide information which is detailed enough to enable the non-travelling parent to decide whether, in fact, he or she opposes that proposed trip to that particular country.
If such opposition is maintained once the details and purpose of the travel are notified by the travelling parent, it will be for the non-travelling parent to bring the matter to Court to seek to restrain the children leaving Australia.
Counselling and therapeutic support for the children
During her submissions, the mother pointed out that, as she and Mr E and the father all live within the same area, it is highly likely they may see each other at shops or even attend the same activities – especially as G becomes older and starts to attend school. That this is the case reinforces the need for the children to receive therapeutic support to assist them understand the Orders.
Orders about schooling
Both parents live within the catchment area for Suburb AA State High School. Each lives approximately five minutes’ drive from the school. The boys were enrolled to attend this school from the beginning of 2017.
The mother seeks orders that, in the event ether of them do not “flourish” at the school, the parties act to enrol them at other schools, such as JJ School.
The father opposes such an order. He says the children want to attend Suburb AA and have friends who will be attending there also. He says the parties cannot afford to send the children to privately funded schools and that, if an order was made to require him and the mother to share equally in meeting the costs of the same, it is highly likely she will be unable to do so, with the result that the children have to cease to attend. In essence, he submits that continuity of schooling will best met by a continuation of the children’s existing enrolment at Suburb AA State High School.
Given her parenting responsibilities, it seems to me that the mother is unlikely to be able to afford to send the children to a private school without financial assistance from someone else (like her mother or Mr E). Even if the evidence established that the parties were likely to be able to meet the ongoing costs of the children attending private schools, it is clear that both C and B looked forward to attending Suburb AA State High School.
C told Ms I in June 2016 that he and B wanted to go to Suburb AA State High School. He said this despite knowing his mother wanted them to go to a private school. He commented that he did not know how she would afford it. Further, he did not like the idea of a private school because he considered it would be connected with religion - something which he did not like at all. Similarly, B confirmed his wish to go to Suburb AA High School to Ms I. He explained that, whilst his mother wanted them to go to a private school, he and C wanted Suburb AA - which his father supported - therefore, his mother was overruled, because it was “three against one”.
Having regard to the boys’ stated views and wishes, the fact that they have friends who will be attending Suburb AA State High School in 2017, that the mother and Mr E now have two children for whom they are financially responsible and the father’s realistic concerns about the parties’ inability to afford the children’s attendance at a private school on an ongoing basis, I am easily persuaded that the children’s best interests will be met by them continuing to attend at Suburb AA State High School in accordance with their current enrolment. [247]
[247]Or such other publicly funded school as may in the future be thought to better meet their needs.
To the extent that the orders which are outlined at the commencement of these Reasons do not include any other specific provisions sought by any of the parties, this is because I am not persuaded that such orders are in the children’s best interests, necessary or proper.
I certify that the preceding five hundred and fifty-five (555) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 March 2017.
Associate:
Date: 2 March 2017
Key Legal Topics
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Family Law
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Injunction
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Jurisdiction
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Remedies
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