Blan and Faulconer Blan (No 2)
[2014] FamCA 878
•17 October 2014
FAMILY COURT OF AUSTRALIA
| BLAN & FAULCONER BLAN (NO. 2) | [2014] FamCA 878 |
| FAMILY LAW – CHILDREN – BEST INTERESTS OF THE CHILD – allocation of parental responsibility – with whom children shall live - children have lived with mother since separation – where the father was charged with possessing child abuse material – where the charges were dismissed – where allegations of sexual abuse against another member of the family prior to the marriage – where it is found that the father did sexually abuse another member of the mother's family prior to their marriage – evidence that father may lack capacity to provide for the children's psychological needs – presumption of equal shared parental responsibility not applied – sole parental responsibility allocated to the mother – father to spend supervised time with the children. FAMILY LAW – PROPERTY – where it is just and equitable for the court to make orders altering the parties' property interests – where both parties earn a reasonable level of income – where there is an adjustment made in favour of the wife on account of s 75(2) factors. |
| Family Law Act 1975 (Cth) s 69ZT(3), s.75(2) Evidence Act 1995 (Cth) |
| Maluka & Maluka (2012) 47 Fam LR 272 MRR v GR (2010) 263 ALR 368 M v M (1988) 166 CLR 69 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 N & S & the Separate Representative (1996) FLC 92-665 Stanford v Stanford [2012] HCA 52 |
| APPLICANT: | Mr Blan |
| RESPONDENT: | Ms Faulconer Blan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central |
| FILE NUMBER: | SYC | 2791 | of | 2013 |
| DATE DELIVERED: | 17 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 29, 30 May 2014, 2, 3,4,5,6,11,12,13 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPLICANT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Power |
Orders
Parenting Orders
That all existing orders herein in relation to the children:
E BLAN born on … 1998
F BLAN born on … 2001
K BLAN born on … 2003
are discharged.
That the mother have sole parental responsibility for E, F and K, on condition that she:
2.1advises the father in a timely manner of any issue in relation to the long-term care, welfare and development of the children and the decision which she proposes to make and
2.2considers and takes into account any views expressed by the father concerning such issues and
2.3 advises the father in a timely manner of her decision.
That the children live with the mother.
That the children F and K spend time with the father as follows:
4.1until the commencement of the 2017 school year, for a period of five (5) hours once per calendar month in the presence of the paternal aunt Ms O or such other person as the parties may agree in writing from time to time, with the father to provide to the mother not less than fourteen (14) days written notice of the proposed time and date of such occasions and
4.2 thereafter, from 10.00 am until 5:00pm each alternate Sunday
4.3 at such other times as the parties may agree in writing from time to time.
That the mother ensure that E, F and K are able to communicate with the father by Skype, email and telephone at times of the choosing of the children.
That both parties are entitled to attend events at the children’s schools to which parents are invited from time to time but excluding sports fixtures.
That both parties do all things and execute all documents necessary to ensure that the father receives copies of school reports, photograph order forms, notices of parent/teacher meetings, school assemblies, sports and swimming carnivals and other significant events which are normally attended by parents.
That the mother inform the father as soon as reasonably practicable of any illness or injury suffered by the children which requires admission to a hospital.
9.1 That both parties do all things and execute all documents required to cause K to commence attendance at X School for Year 7 in 2016.
9.2That each of the parties pay one half of K’s school fees and incidental educational expenses.
That order 4 commence operation only when:
10.1the mother, the Independent Children’s Lawyer and the children’s psychologist, Ms N have conferred upon and agreed as to information to be provided to the children, or any of them, as to the court’s orders and reasons for judgment.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property Orders
That, within 28 days of the date of these orders, the wife pay to the husband a sum of $28,524.
That, simultaneously with such payment by the wife to the husband
2.1the wife shall do all things and execute all documents necessary to cause the transfer to the husband of the whole of her right title to and interest in the Mazda … motor vehicle registered number … and
2.2the husband shall do all things and execute all documents necessary to cause the transfer to the wife of the whole of his right title to and interest in the property situate at and known as Z Street, Suburb U in the State of New South Wales.
That, in the event that the wife fails to make payment to the husband in accordance with order 1, both parties shall do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as Z Street, Suburb U in the State of New South Wales and to distribute the proceeds of such sale as follows:
3.1 in payment of agent’s commission and expenses
3.2 in payment of legal costs and expenses incidental to the sale
3.3in payment of all monies necessary to discharge the mortgage, line of credit and everyday account owed to the National Australia Bank
3.4in payment of an amount equal to 91% of the balance then remaining to the wife
3.5 in payment of the balance to the husband.
That the wife indemnify the husband and keep him indemnified in respect of all liabilities arising pursuant to the mortgage, line of credit and everyday account owed to the National Australia Bank.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blan & Faulconer Blan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2791 of 2013
| Mr Blan |
Applicant
And
| Ms Faulconer Blan |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Blan (“the father”) and Ms Faulconer Blan (“the mother”) are in dispute as to property settlement and parenting orders in relation to their children:
E Blan born in 1998 (15)
F Blan born in 2001 (13)
K Blan born in 2003 (11).
A specific issue in dispute was whether K should attend X School and, if so, what arrangements should be made for payment of the resultant fees and incidental expenses.
Ultimately the only order which the father sought in relation to the child E was that the parties have equal shared parental responsibility. The mother sought an order that she have sole parental responsibility for all three children. The father sought no orders for E to spend specified times with him and was content for her to make her own decisions and arrangements.
The mother sought orders to the effect that the children spend no time with the father and that he be restrained by injunction from approaching or communicating with them. Alternatively, the mother proposed that the children spend time with the father, under professional supervision, from 10:00 am until 2:00 pm on one occasion in each school holiday period. In final submissions, counsel for the mother indicated that she agreed to supervision on these four occasions by the father’s sister, Ms O. The father proposed that the children F and K spend time with him on a graduated basis, commencing with day periods only each Sunday and leading to five nights per fortnight and half of all school holidays.
In relation to property settlement, it was common ground that the wife have an opportunity to retain the former matrimonial home at Z Street, Suburb U upon payment of a sum of money to the husband. He sought orders to the effect that the wife pay to him an amount of $194,082 and she proposed a sum of $22,000.
The parties agreed that their contributions as at the date of trial were equal and that an adjustment in favour of the wife was warranted on account of section 75(2) factors. The substantial issue in relation to alteration of property interests was the quantum of that adjustment.
The mother and the Independent Children’s Lawyer (“the ICL”) contended that the children would be exposed to an unacceptable risk of sexual and psychological harm in the unsupervised care of the father. Counsel for both the mother and the ICL contended that there should be a finding that the father wilfully accessed child pornography. On behalf of the mother it was submitted that a finding is open that the father sexually abused her brother, Mr FF, when he was aged approximately 11 to 15 years. Counsel for the ICL contended that the father’s admitted conduct with the mother’s brother illustrated his propensity to overstep personal boundaries, as was identified by the single expert Associate Professor J. The ICL submitted that the father’s “difficulty in understanding personal boundaries” constitutes an additional risk to the children.
The father conceded that he accessed consensual adult pornography but denied any interest in or viewing of material involving children. He admitted that he engaged in “skinny dipping”, viewing of pornography and discussions about sexual matters with the mother’s brother when he was aged between 11 and 15 years. Otherwise, the father denied the allegations made by the mother’s brother as to his conduct. These allegations are considered in detail below in these reasons.
The father proposed that K attend X School from the commencement of Year 7 in 2016. In 2012 the parties both signed an enrolment contract but the mother is now opposed to K’s attendance at this school.
The Evidence and Witnesses
The applicant father relied on the following affidavits:
1.Mr Blan (the father) sworn on 16 May 2014
2.Ms L (the paternal grandmother) sworn on 16 May 2014
3.Ms O (a paternal aunt) sworn on 16 May 2014
4.Mr R (the father’s treating psychologist) sworn on 22 May 2014
5.Mr NN (computer forensic specialist) sworn on 27 May 2014
6.Financial Statement verified by affidavit of the father sworn on 18 February 2014.
With the exception of Mr NN, all of these witnesses gave oral evidence.
Mr NN and Mr T, a computer forensic specialist retained by the mother, conferred and produced a joint statement dated 12 June 2014. (exhibit 18) They reached agreement in relation to all questions submitted to them by the legal representatives of the parties and the ICL. Accordingly, neither of these experts was required for cross-examination.
The respondent mother relied on the following affidavits:
1.Ms Faulconer Blan (the mother) sworn on 8 May 2014
2.Ms FF (a maternal aunt) sworn on 7 May 2014
3.Mr FF (a maternal uncle) sworn on 6 May 2014
4.Mr T (a computer forensic specialist) sworn on 27 May 2014
5.Financial Statement of the mother verified by affidavit sworn on 12 February 2014.
With the exception of Mr T, all of these witnesses gave oral evidence.
Senior counsel for the father objected to the admission of the affidavit of Mr T on a number of bases, including late service. I elected to receive the affidavit of Mr T and indicated that I would set out my reasons in this judgment. I do not now consider it necessary that I do so, as the two experts reached full agreement.
Senior counsel for the father objected to the affidavit of the mother’s brother, on the basis of relevance and because its probative value was said to be outweighed by its prejudice to him. It was contended that the allegations have no relevance because the supposed events took place between 1991 and 1995/1996 and were described in “broad and general terms”.
I elected to receive the affidavit of Mr FF. I took the view that I could not simply conclude that allegations of sexual conduct directed at an 11 to 15 year old boy by a man aged between 27 and 31 were irrelevant to the parenting issues in these proceedings, albeit that the alleged events took place in the 1990s. I considered that senior counsel for the father was well able to test the allegations made by the mother’s brother. Additionally I was conscious that these allegations were addressed by both Dr J and Mr R, who had read the evidence of Mr FF.
As appears below, however, I acceded to an application by senior counsel for the father pursuant to s 69ZT(3) of the Family Law Act 1975 (“the Act”) that the rules of evidence apply to two issues in these proceedings. One of those issues was “allegations as to the husband’s behaviour in relation to [Mr FF]”. Senior counsel for the father then successfully took objection to numerous particular words, sentences and passages in the affidavit. Consequently, a considerable volume of material in this affidavit was excluded from the evidence.
I had the benefit of a report dated 18 December 2013 and oral evidence from a single expert psychiatrist, Associate Professor J (“Dr J”). Prior to the commencement of the trial, I granted leave for Mr R to be provided with the report of Dr J.
As noted above, senior counsel for the father made an application pursuant to s 69ZT(3) at the start of the trial. He sought that the rules of evidence apply in respect of the following two issues:
“The allegations as to the husband’s possession and/or access to pornographic material” and
“The allegations as to the husband’s behaviour in relation to [Mr FF].”
This application on behalf of the father was supported by counsel for the ICL. She submitted that “the [mother’s] application would see an end to any normal relationship between the children and the father, so the rules of evidence should apply”. Counsel for the mother opposed the application and, by implication, contended that the proceedings should be governed entirely by the provisions of Division XIIA of the Act.
As noted, I acceded to the application on behalf of the father. I am loath to make findings in relation to two highly significant issues in the proceedings other than in accordance with the rules of evidence. I am satisfied that “exceptional circumstances” exist for the purposes of section 69ZT(3)(b) of the Act. I agree with the contention of senior counsel for the father that the findings which I make in respect of these two issues are likely to impact significantly upon the court’s determination of these proceedings such that “it would appear to be unsafe to afford inadmissible evidence any significant weight in the exercise of the court’s fact-finding functions”: Maluka & Maluka [2012] 47 Fam LR 272.
Background
The father was born in 1964 and is currently aged 50 years. The mother was born in 1965 and is presently 49 years of age. The mother’s brother, Mr FF, was born in 1980 and is now aged 34 years.
The parties married and commenced cohabitation in 1987. The father was then employed in the IT industry. The mother worked in the public service, while undertaking a university degree on a part-time basis. Upon graduation in 1993, the mother undertook professional practice requirements. She worked for the public service in Sydney and Brisbane until 1997. The mother then commenced work in the private sector. In 2007 she established her own business as a professional practitioner.
At the date of marriage neither party possessed any significant assets. They lived on a rent-free basis in an apartment at Suburb Y owned by the father’s brother-in-law. For approximately six months in 1989 they occupied a holiday home on the Central Coast, which was owned by the father’s family, on a rent-free basis. They rented accommodation until late 1992/early 1993 and then moved into the father’s mother’s home on a rent-free basis.
In 1991 the parties purchased an investment property in Brisbane for $82,000. The purchase money came from their savings, a payout which the mother received from the public service and a mortgage advance. The parties sold this property for approximately $67,000 in about 1999.
In 1993 the parties purchased a property at Suburb V for $216,000, utilising savings and a bank loan of $205,000. The parties lived in this property until they moved to Brisbane in 1995, when it was leased until sold in 1999.
The parties then purchased a property at Suburb RR in Brisbane for $250,000, utilising the sale proceeds of the home at Suburb V and a mortgage advance of $205,000. The RR property was sold for approximately $325,000 in 2002.
Early in 2001 the parties left Brisbane and returned to Sydney. They lived in rented accommodation for approximately twelve months and then purchased the former matrimonial home at Z Street, Suburb U for $670,000. The purchase money came from the sale proceeds of the RR property, a gift of $10,000 from the father’s mother and a mortgage advance of $545,000.
The father was made redundant in April 2005 and received a payout of $12,500, which he deposited into the mortgage account. He received a redundancy payment of $37,000 in 2009 and again deposited these funds into the mortgage account. After drawdowns in 2006, 2007, 2008 and 2010 the mortgage balance stood at approximately $691,800 as at the date of separation.
As noted, in 2007 the mother commenced a business as a professional. For some six years she saw clients in serviced offices at Suburb W and Suburb HR and otherwise worked from the family home. Since 2013 she has leased office space for her business at Suburb W.
The father contended that, in 2010, the mother informed him that she suffered sexual abuse as a child. The mother’s version of these events was that, when she was six or seven, the son of a cousin who was eight or nine years old insisted that she touch his penis. The mother maintained that she did not tell her parents on account of threats made by this boy and his brothers. She suggested that the main issue for her in relation to these events was that she experienced the conduct of the boy and his brothers as a form of bullying.
In 2009 the parties attended a series of three “Landmark” courses, independently of each other, with the hope of improving the quality of their relationship. It was common ground that sexual intimacy was a longstanding problem in their marriage.
By his own admission, the father engaged in conduct of a sexual nature which he concealed from the mother for many years during the marriage. He participated in on-line chats with sexual content between about 1995 and 2008, in particular with a woman named “AA” in Perth. The father and “AA” engaged in telephone sex on one occasion. He participated in cybersex with approximately twelve women over an eight year period. Between approximately 2006 and 2008 the father met four women for sexual encounters on five to six occasions.
The father proffered that he started to visit pornography websites during the 1990’s, accessing movies, still pictures and text stories. He found a website called “XXX”, from which he downloaded text stories. He deposed that usually he downloaded 50 to 60 stories, using his work laptop computer. He then saved this material to a drop box folder on his computer. The drop box then synchronised these stories to all devices which were connected to this service, including a 27 inch and a 24 inch Mac computer in the family home and the father’s iPad.
It was common ground that the mother knew nothing whatsoever of these sexual activities of the father until the events which precipitated the parties’ separation. She deposed that he told her on about five or six occasions that he had no interest in pornography. According to the mother he said to her: “I’m not like other men, I have no interest in porn” and “porn does nothing for me”. The father concealed these activities from the mother, in what can only be regarded as a comprehensive and long-term deception of her, over several years.
In 2011 the child E commenced high school and currently attends OL School at Suburb U. Early in her high school career, the parties were made aware of a severe impairment to her reading ability. The father read with her each night for approximately eighteen months, so as to improve her level of skill in this area.
According to the father, in about 2011 two incidents took place which involved the child K and another child being in a partially undressed state. The father maintained that he and the mother discussed these incidents, which they elected to characterise as “ordinary behaviour” and “typical of children’s general curiosity around sexuality and nakedness”.
On 30 May 2012 the parties attended a meeting at X School in relation to K’s proposed enrolment in 2014. He was offered a place and the parties signed an acceptance, paying a security deposit of $4,000.
The father maintained that the mother said to him in late August/early September 2012:
[Ms S] says that [M] told her that [K] doesn’t know how to play mothers and fathers properly.
[Ms S] said that when she asked what she ([M]) meant [M] told her that [K] asked her to lick his penis.
Apparently this happened when we were all together … for Christmas last year.
Ms S is the mother’s sister and M is her daughter, who was then aged three and a half years. The child K was approximately eight years of age at the time of this alleged event.
Mr FF maintained that he was prompted to reflect on his experiences with the father when he became aware of the alleged events involving K and M. He deposed that he decided to inform the mother of the father’s conduct toward him in mid-November 2012. He gave permission for his sister, Ms S, to provide information to the mother. The mother deposed that her two sisters, Ms S and Ms FF, arrived unexpectedly at the former matrimonial home on 21 November 2012. Ms S is a psychologist and Ms FF a police officer.
The mother deposed that she spoke to her brother on 21 November 2012, although she said in her oral evidence that the conversation could have taken place on the following day. She deposed that her brother said to her words including:
It started pretty harmlessly, just talking about sex. The he started showing me pornography, magazines and movies. Things just developed to skinny dipping and touching and masturbating. It ended in a fight when he wanted to give me oral sex.
In his oral evidence, the mother’s brother said that his first telephone call with the mother in relation to these matters was of approximately 90 seconds duration. He said that he “did not believe” that he told her about skinny dipping, touching, masturbation or the father’s wish to give him oral sex on that occasion. He said that they “had a longer conversation within about a week”.
According to the mother she was unable to sleep that night. At approximately 1:15am she entered her home office and logged on to the father’s account on a Mac computer. She opened a folder entitled “Misc.” and she observed file names such as “the stepdaughters”, “my nieces”, “…” and “the first time”. The mother copied the contents of the “Misc.” folder onto a thumb drive. During the next two days, she accessed the “XXX” website.
Ms FF deposed that, on 22 November 2014, she observed approximately 60 text files on a Mac computer in the former matrimonial home. She opened some of these files and saw titles including “my stepdaughter”, “girl next door” and “my slut”. Upon opening each of these files, she saw a paragraph headed “XXX” followed by a warning that there would follow sexually explicit material.
On 22 November 2012 the mother telephoned the father at his office. The father gave this account of their conversation:
[The mother] said to me “I have just learned that you sexually abused my brother, I don’t want you to come home. Please go and stay with your sister until I work out what I am going to do next.” I was unaware as to what, or even which of [the mother’s] brothers, she was talking about. I was shocked by the allegations and I said to her, “what?”. [The mother] repeated the allegation to which I then said, “I don’t know what is going on here but I have never abused anyone let alone your brother”. [The mother] then said to me again words to the effect, “I don’t want you here. You are not to come back to the house.” I then said to [the mother], “It is my home too, we need to talk about this, it is a very serious allegation.” [The mother] then replied, “I don’t want you at home or anywhere near the kids, stay away.” I said “I am going to come home so we can talk about this”.
The mother and the children left the former matrimonial home on 22 November 2012 and stayed at a hotel that night. They spent 23 and 24 November 2012 at Town A, in the company of the mother’s sister Ms FF.
On 25 November 2012 the mother and Ms FF attended Suburb B Police Station. The mother provided a statement and a police officer took out an apprehended violence order (“AVO”) against the father in respect of the mother and the children.
The AVO was served upon the father by police officers at approximately 8:30 pm on 25 November 2012. The provisions of this order prohibited the father from making any contact with the mother or the children. He left the former matrimonial home when served with the AVO and has since stayed at the homes of his sisters, Ms Q and Ms O.
With the permission of the mother, police officers collected a 27 inch Mac computer from the former matrimonial home on 25 November 2012. On 26 November 2012 the mother delivered to police twelve additional computer data storage devices, including a 24 inch Mac computer. On 27 November 2012 she delivered to police three additional computer data storage devices.
At 7:15am on the child E’s birthday, the mother emailed the father and his sister Ms O. The mother offered her consent to the father telephoning E at 7:30am but he did not receive the email until 8:30am. Subsequently, the mother consented to the father speaking to the children by telephone on 30 November 2012, 1 December 2012, 2 December 2012 and 3 December 2012.
On 4 December 2012 the AVO proceedings came before the B Local Court. The conditions of the orders were varied so as to allow the children to initiate telephone contact with the father on three occasions per week, with Skype and facetime as permissible alternatives.
On 17 January 2013 the parties agreed that the children would see a psychologist. They began to consult Ms N in early February 2013 and continued to see her at the time of the trial.
On 28 February 2013 the father was charged with three counts of “produce, disseminate or possess child abuse material”. He entered a please of “not guilty” on 30 April 2013 and the proceedings were listed for trial in September 2013. Judgment was reserved and the charges against the father were dismissed on 15 October 2013. The AVO proceedings were adjourned to 3 February 2014, when the father consented to a final order in relation to the children until 14 December 2014 on a “without admissions” basis.
On 1 March 2013 the father began to attend upon Mr R, pursuant to a referral from a psychiatrist. He continued to consult Mr R at the time of the trial.
On 15 July 2013 the mother indicated to the father for the first time that she wished to postpone K’s enrolment at X School. On 17 October 2013 staff at X School informed the parties that K’s placement could be deferred only if they both provided their consent.
On 31 October 2013 a Registrar made the following interim parenting orders after a contested hearing:
1.That these orders prevail to the extent that any inconsistency over any AVO.
2.The children spend time with the father for three hours each alternate Sunday on a supervised basis.
3. That the husband pay the costs of supervision.
4.The parties are restrained from discussion of any criminal, family law or any other issues arising from the marital breakdown with the children except in accordance with professional advice.
5.The father have telephone or Skype contact for a reasonable period between 6:30pm and 8:30pm each Tuesday, Thursday and Sunday.
The mother filed a Review and sought to stay these orders. A Registrar dismissed the mother’s application for a stay on 8 November 2013. On 20 January 2014 the same interim parenting orders were made on the hearing of the Review application.
On 16 November 2013 the children began to see the father each fortnight under supervision of staff at the H organisation. Contact reports (exhibit 4 and annexures to the affidavit of the father) demonstrate that these occasions are enjoyable for the children and that the father acts entirely appropriately on these occasions.
Parenting Orders
Approach To These Proceedings
In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Act sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S& the Separate Representative (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.
The Allegations as to the Father’s Behaviour in Relation to Mother’s Brother
After proper objections were taken to the contents of the affidavit of Mr FF, the following allegations as to the father’s conduct remained in evidence:
· on numerous occasions he spoke to the mother’s brother about his (the brother’s) experience, when he was 11 years old with another boy of the same age which involved nudity and looking at the other’s genitals
· he provided alcohol and condoms to him when he was about 15 years old, after the mother’s brother said that he may have sex with a girlfriend and then asked him “how did you go?”
· he and the mother’s brother skinny-dipped together on at least ten occasions when he was aged between 11 and 16 years
· he and the mother’s brother played “strip pool” on no less than twelve occasions when he was aged between 13 and 16 years. This game involved the loser of a game of pool removing all of his clothes.
· during these games of pool he and the mother’s brother touched their own and the other person’s penis and scrotum
· on three or four occasions during games of strip pool he and the mother’s brother licked the other person’s penis and genitals.
This evidence remained in the mother’s brother’s affidavit after objections:
28. I recall a trip to [SS] Island in either 1995 or 1996. [The father] and I had been for an evening skinny-dip at the beach and had gone back to the campground (just behind the dunes) to go to bed. We had a couple of beers. We went into the four person tent and lay down (on or in the sleeping bags). We were looking at …magazines. I cannot remember the exact course of events but I recall that [the father] said: “I want to suck you off…till you come…please can I…please can I…come on I won’t tell anyone…
29. I was extremely uncomfortable and said no…
30. [The father] rolled over to be right next to me. I had shorts on. He tried to persuade me. He said again: “Please can I….come on…no-one will know…I have always wanted to know what it felt like for someone to come in my mouth.”
31. I said no several times and pushed [the father] away from me.
32. Soon after the incident at the beach I stopped talking to [the father]. I felt very angry and confused and embarrassed about the situation. I did not talk to anyone or tell anyone. I stopped going to the beach and playing pool with [the father]. He still attended family functions (as did I) but I avoided him.
In his oral evidence the mother’s brother said inter alia:
· “I have a very clear recollection of what happened in that tent and some are slightly more vague.”
· “I am less clear about the number of times things occurred. Skinny-dipping became commonplace.”
· “After the 1995/1996 incident I exchanged pleasantries with [the father] at family functions. I don’t believe that we necessarily hugged or shook hands. I avoided him after 1995/1996. I chose not to be alone with him. I went to family events because there were the other people there.”
· “Yes it was a long time ago. I am not exact on the number of times things happened and I am not clear on dates.”
· “I have a clear recollection of things happening around the pool table and skinny-dipping.”
· “It is not correct that I did not discuss sexual matters with him until I was 14 or 15. I was about 12. I remember the first memorable one was walking along the headland at Port Macquarie.”
· “I viewed pornography. I have no recollection of him walking in on me but that is not something which would necessarily stick in my mind because [the father] and I often shared pornography.”
· “[The father] bought me alcohol on numerous occasions.”
· “Strip pool in my parents’ home very much added to the colour and excitement.”
· “It occurred more than once that we touched each other’s genitals with hands, tongues and other parts of the body.”
· “In my mind there was a clear distinction between fooling around at the pool table and full blown oral sex. I was very ashamed.”
The mother’s brother explained that he admired the father, whom he regarded as a brother, and generally enjoyed spending time with him. He said that they became “re-acquainted” in 1997, when he began a relationship with his now wife P. He and P socialised with the mother and the father. The mother’s brother explained that “our friendship with [the mother] and [the father] meant that [P] and I could spend time together “chaperoned” but without our parents”. He said that he and the father had “quite a close friendship after the re-acquaintance”.
In response to questions from counsel for the ICL, the mother’s brother said that he and the father camped at SS Island for three nights in 1995/1996. He said that he thought that the father requested oral sex on the second night. He described the third night as “awful” and explained that he knew nobody at the campground and “had no way of contacting anyone”. He said: “I had resolved the situation and I did not want to tell anyone that I had a homosexual encounter with a man”.
In his affidavit the father made these admissions as to his conduct toward the mother’s brother:
· he skinny dipped with the mother’s brother on two occasions
· he twice viewed pornography with the mother’s brother
· he purchased alcohol for the mother’s brother on one occasion
The father claimed that the mother’s brother told him that he and his friends intended to steal alcohol from a bottle shop to take to a party. The mother’s brother denied this allegation convincingly in his oral evidence.
The father made the following admissions in relation to his conduct toward the mother’s brother in his oral evidence:
· “We talked a lot about sex.”
· “We did view porn together.”
· “We went skinny-dipping twice, once at a beach and once at home.”
· “If I need to apologise I will because I did not tell his parents or [the mother] about porn and skinny-dipping.”
· “I acknowledge that my behaviour was inappropriate. The age gap suggests something other than what it was. If it has had an effect on his development, I sincerely apologise for that.”
· “I concede that even what I admit to may have created problems for him.”
The father otherwise denied all of the allegations made by the mother’s brother. He agreed with the mother’s contention that he said to her, on 27 March 2013,: “I crossed a line [mother’s first name]…but I never hurt [brother’s first name]”.
Doctor J discussed with the father the allegations made by the mother’s brother. She was provided with the brother’s two affidavits but did not interview him. Dr J reported as follows:
Regarding [the mother’s brother’s] allegations, [the father] is in two minds whether there is anything behind it.
[The father] had nothing to do with any of the allegations; it is crystal-clear; possibly [the mother’s brother] is misleading everyone to assist his sister. (note: [Mr FF’s] disclosure came ahead of [the mother’s] move to end the marriage).
Possibly something did happen to [the mother’s brother] in that he suffered a serious blow to the head in a skate-boarding accident when he was 15 or 16; he was in ICU. [The father] wonders whether that can cause misdirected memories.
The other possibility is that “there is really nothing in it”.
There is “the thinnest veneer of truth in [the mother’s brother’s] story. They did play pool together but never naked; “I have never touched his genitals; I have never suggested oral sex”.
They did have conversations “of a sexual nature, but I never asked about his fantasies”.
[The father] did show [the mother’s brother] porn, but this was in the context of: “two occasions when I came across [the mother’s brother] viewing porn and so I participated too so he didn’t feel in the wrong. It was not erotic for me; it was nice being available so he could talk. Our talks were informational”.
There were two episodes of “skinny-dipping”, once at the family home, after one of those times when [the mother’s brother] was looking at porn, and another time, earlier, at the beach on a family holiday. “I meant nothing by it at the time but in retrospect I realise it probably wasn’t wise.”
[The mother’s brother] has said they argued over oral sex and that he “then stayed away from me; that is strange because it is not true”. [The father] had never noticed any estrangement between them. From around age 16 to 17 [the mother’s brother] was spending more time with his friends but that seemed normal for his age. When [the mother’s brother] was 16 and 9 months [the father] contributed to helping him learn to drive and after that the two of them went to [SS] Island on a four-wheel drive.
Doctor J was asked for her opinion of the significance of the father’s admissions that he watched pornography twice with the mother’s brother and that they skinny-dipped together on two occasions. She replied: “without more, I would say that is possibly grooming behaviour”.
Doctor J was asked to comment upon the breakdown in the relationship between the father and the mother’s brother in 1995/1996, and followed by a rapprochement in 1997, in circumstances where they again spent time alone together. She said:
I did not know about weekends away alone but I knew about the joint socialising. I think that what happened to [the mother’s brother] is of concern because what the father admitted to was inappropriate and may be grooming, a violation of boundaries and trust with another family.
Doctor J was asked to comment on the significance of the father’s acknowledgement that he behaved inappropriately with the mother’s brother. She said:
I have concerns about his response, saying a head injury may have caused [the mother’s brother] to say these things, no sense that he may have caused for example confusion for [the brother]. I don’t think it was an effort to understand, it was an effort to justify or dismiss, that is not to value the concerns of the other person.
Doctor J said also: “What [the mother’s brother] describes is grooming. What [the brother] says indicates a long period of grooming. Grooming is a strategic assault as it is intended to have a particular outcome.”
Doctor J was asked to comment on the father’s contention that the mother’s brother’s allegations were part of a conspiracy with the mother to enable her to move to Brisbane with the children. She said: “This is what I was alluding to earlier, dismissiveness and lack of empathy for the victim. There are chiefly two explanations, a genuine belief and a way of dismissing what other people are saying.”
Mr R discussed with the father the allegations of the mother’s brother. He reported:
In reference to [the mother’s brother’s] sex education, he said that he “wanted to normalise that experience”. He regarded himself as an “older brother” to Mr [FF], and thought he was helping him. [The father] was in his mid-twenties at the time; however, in hindsight he now believed that it was not his role.
Mr R reported further: “In reference to [the mother’s brother], [the father] stated he could recall the skinny-dipping incident. He stated that nudity was common within the family environment in some situations. He said that he saw his father-in-law … naked during a camping holiday when he was showering. He thought nothing of the skinny-dipping incident. He again denied a sexual attraction toward [the mother’s brother].”
Mr R reported that the father informed him that the mother’s brother suffered a head injury at the age of 16. He opined that “[The father] demonstrated empathy toward [the mother’s brother] and expressed concern that [the brother] might have been sexually abused by someone and misidentified him ([the father]) as being the perpetrator.”
Mr R disagreed with Doctor J’s conclusion that the father lacks empathy. He wrote in his report: “In my opinion [the father] does not manifest a lack of empathy. In my opinion “he dismissed the allegation by [the mother’s brother]” because he does not believe he committed a sexual offence of [the brother]”.
Senior counsel for the father submitted that “a conclusion is unavailable that these allegations are made out or that there is an unacceptable risk”. It was contended that “there was doubt about the extent of his recollection without the assistance of others”. It was suggested, in effect, that he discussed his recollections with his wife and his sister Ms S. Senior counsel for the father maintained that “he had a series of conversations with [Ms S] in the context of him responding to her enquiries.” It was submitted that a Jones v Dunkel inference is available because Ms S gave no evidence in the case for the mother.
It was submitted that “there were differences between the interim and final affidavits” of the mother’s brother. He was criticised because “he said he had a very clear recollection of events in the tent but his recollection of other incidents was more vague”.
Senior counsel for the father pointed to the “continued relationship after the summer of 1995/1996” between the mother’s brother and the father. The suggestion seemed to be that this relationship was inconsistent with conduct on the part of the father as alleged by the mother’s brother.
I found the mother’s brother to be an impressive witness, who appeared to be telling the truth to the best of his recollection. I can envisage no reason why he would provide false evidence as to the father’s conduct toward him, and subject himself to rigorous cross-examination, purely to bolster his sister’s case. On the other hand, the father appeared to me to be a witness who made limited admissions in relation to the mother’s brother’s allegations for strategic purposes. I prefer the evidence of the mother’s brother to that of the father.
I am unpersuaded that Mr FF’s conversations with his sister Ms S affected the reliability of his evidence or his veracity. I could identify nothing in the evidence to suggest that these conversations added any material to his independent recollection.
In my view, it is unremarkable and insignificant that the mother’s brother’s recollection of events on the camping trip in 1995/1996 is much more vivid than is the case with other incidents. Mr FF gave convincing evidence that he perceived a significant difference between skinny dipping, “strip pool”, the viewing of pornography and discussion of sexual topics on the one hand and oral sex on the other. He conceded readily that he has a poor recollection of dates and the number of occasions when incidents occurred between himself and the father.
I am unable to give weight to alleged differences in the contents of the two affidavits of the mother’s brother. His first affidavit was not included in the evidence placed before me.
I do not regard the resumption of a relationship between the mother’s brother and the father as indicative that the former fabricated his allegations as to the conduct of the latter. The relationship prior to the summer of 1995/1996 was one between the father and the mother’s brother. The relationship after 1997 was, to a significant extent, one between two couples and was convenient to Mr FF and his now wife. Additionally, the father and the mother’s brother remained connected by family ties.
I attach little or no significance to the inconsistencies in the evidence of the mother and her brother concerning their telephone conversations in November 2012. No doubt the mother was considerably disturbed by information which she received at that time. It would be unsurprising if she now has a less-than-perfect recollection of the details of her telephone conversations with her brother. Certainly, I do not consider that these inconsistencies bolster the suggestion of the father that the mother and her brother concocted these allegations to assist her case.
Senior counsel for the father submitted that it was “to his great credit that he admitted to skinny dipping, viewing of pornography and purchase of alcohol and that he now says that he recognises inappropriate behaviour – but he had no intent to groom or be malicious; at the time he acted in good but misguided faith”. I respectfully disagree with that contention and take the view that the father made strategic admissions of only a few of the less serious allegations made by the mother’s brother. It may well be that the father, who is an intelligent man, considered that this tactic would appear to be more credible than a blanket denial of every allegation made by the mother’s brother.
Accordingly I find, to the requisite standard, that the father directed the following behaviour toward the mother’s brother:
· he discussed sexual matters from a time when the mother’s brother was approximately eleven years old
· he provided alcohol and condoms to the mother’s brother when he was about fifteen years old, after he indicated that he may have sex with a girlfriend, and later asked “how did you go?”
· he skinny dipped with the mother’s brother on at least ten occasions when he was aged between approximately thirteen and sixteen years
· he viewed pornography with the mother’s brother
· he played “strip pool” with the mother’s brother on at least twelve occasions when he was aged between thirteen and sixteen, which involved the loser removing all of his clothes
· during games of “strip pool”, he and the mother’s brother touched their own and the other person’s penis and scrotum
· on three or four occasions during games of “strip pool”, he and the mother’s brother licked the other person’s penis and genitals
· during a camping trip in the summer of 1995/1996 he asked the mother’s brother for oral sex in the manner set out in paragraph 68 of these reasons.
The Allegations as to the Father’s Use of Pornography, Including Material Relating to Children
As noted, the father admitted that he accessed adult pornography and downloaded stories from a website known as “XXX”. In his affidavit the father deposed:
301.I admit I have previously accessed the website known as “[XXX]” in the past. I would estimate that from about early to mid-2011, I began to search online for erotic stories for couples. All text files from [XXX’s] collection that I had stored on my computer were either downloaded by me directly from the website or from a zip file on a USB given to me.
302.I adopted a pattern where I would:
(a)Download a large volume of stories, based primarily on selecting stories which had multiple parts to them.
(b)Over time, I would start reading the stories and once a story was finished or I formed the view that I was no longer interested, either because it was poorly written or did not involve a subject in which I was interested, then I would delete the file.
303.After I had obtained stories, I occasionally scanned the titles and file names and clicked open the story to read the synopsis. There were stories that I knew immediately would not interest me and I deleted those. I do not recall that I saw any titles which suggested that there were text files of a paedophilic/child abuse nature or even involving underage children. Had there been any which were immediately obviously as containing such material, I would have deleted those as well. I wold not have deleted any stories because I understood them to be illegal, as I was not aware that a text file could be categorized as child abuse material or that there was a criminal element in possessing such files, but I would instead have deleted those files as I was not interested in stories involving that sort of material.
304.On the occasions that I went online to download more stories, I often hadn’t reached the end of the stories downloaded from the previous occasion. I would download new stories which would be stored in the same place as the stories already there and I would then gradually read through them. I did not work through them in any order such as date of download or title name but instead randomly selected a story to read.
305.I did not save stories. Each story was deleted once I had read it or had formed the view that it was not of interest to me.
The storage of text files
306.In about February or March 2013, I experienced some space problems with Dropbox due to the limited space available with their free service. That limited storage space arose because Dropbox was used by me to store and share information across my devices. My Dropbox folders contained not just the stories I was downloading but a wide range of other material such as files relating to household matters, finances, baseball statistics, Radio Controlled Modelling and various other topics. The children did not have access to anything stored in the Dropbox folders.
307.As a result of the space limitation, I created a folder called “HOLD” which was then compressed into a zip file called “Hold.zip”. This compressed all the text files which were in the HOLD folder at that time. The effect of this was to create more space in Dropbox. I named it “HOLD” as my intention was that the file would hold material for later reading.
308.After this, I continued downloading files from online and I believe exclusively [XXX’s] collection but I am unable to say for certain. When I downloaded a text file, I would right click, save the file in the “MISC” folder in Dropbox and then I would either:-
(a)move it into the hold.zip file for later reading; or
(b)Open the file in the MISC folder and read it straight away.
(c)If it was read straight away, then it would be deleted at the end of the story or at the stage that I determined I did not want to continue reading it.
309.At various times, I would move files back from the Hold.zip folder into the MISC folder. I would do this as I most typically accessed the stories for reading from my iPad and an iPad cannot read a zip file and therefore the files would need to be in the MISC folder to be accessible. If I finished reading a story on the iPad, or lost interest, I would delete the story directly from the iPad. Courtesy of the Dropbox service, this would mean the file was also removed from all other devices.
310.In or around June/July 2012, the storage issue was no longer an issue as Dropbox began providing greater space for free as part of an upgrade to the service. That meant I no longer needed to move files in the Hold.zip file anymore. From the point onwards, I believe I was only ever extracting and deleting files from the HOLD.zip file.
311.Of the ten stories, that I was charged with, five were in the Hold.zip file and five were in the MISC folder. The five in the Hold.Zip file had not yet been opened and read and were awaiting me to open them. The remaining five which were in the MISC folder had either been:
(a)Moved from Hold.zip to MISC and not yet read to the point that I could determine their nature; or
(b)Not opened at all as yet.
312.There was no particular pattern to my selection of which story I would move across to the MISC folder from the .zip file. I did not use the oldest files, or go by anything more than random choice and which filename happened to catch my attention at that point in time. Accordingly, I would sometimes move a file across that had been only recently downloaded and on other occasions, I might move a file that had been in the .zip file for several months.
313.I also used an application called Notepad++ on my PC. This application would allow multiple files to be opened simultaneously each appearing under a separate tab similar to a web browser. Only one of the files would be readable at once however all files would show as having been opened. This may have resulted in the metadata showing that a number of files would appear as having been opened even if they had never been read.
314.I acknowledge that I could certainly have been more vigilant in screening the files that I was in possession of by November 2012. At that stage I was unaware that I was in possession of files that allegedly contained child abuse material and I was also unaware that to be in possession of such material in textual form potentially represented a criminal offence. I was not aware of this until [the mother] provided me with the references to the NSW crimes act in late February 2013.
Allegations I changed my passwords
315.Our computer set up at home was established so that [the mother] and me, as well as the children, each had our own log in. This was necessary because [the mother] operated her business from home and stored on the computer under her user name were her files relating to her work. The 27” Mac was intended to only be used by [the mother] and I. The 24” Mac was for use by the children as well.
316.I changed my password in mid 2012 because:-
(a)I had on a number occasions suggested to [the mother] that the children not be given our passwords or permitted to use her main work machine in order to avoid a situation where the children either inadvertently deleted files or accessed client information or material related to [the mother’s] work that perhaps they should not see. Unfortunately I became aware that in mid 2012, [the mother] had provided [the child E] with my password and I therefore took steps to change it. After I changed my password, I made [the mother] aware that I had changed it, the reason why and I gave her the new password.
(b)The other reason was that we used a service from “openDNS” to provide internet security and to ensure that the children weren’t exposed to websites that were age or content inappropriate. The setup we used relied on each of the children accessing the computers via their own individual log in. I therefore changed my password to ensure that [E] used her own login rather than using mine which would offer her unrestricted internet access.
317.I had a double password set up on the routers themselves. The double password arrangement occurred after I became aware that someone had been piggybacking on our Wi-Fi network without permission. I already had the Wi-Fi connection password protected so I added in MAC address access lists known as “white listing”. This meant I had to specifically allow any device to connect to the network and therefore required the use of two passwords.
Deleting files
318.I had no reason to delete the files on my computer at 3.00 a.m. If I had deleted files, I have the necessary knowledge to do so properly and that would have included emptying the trash properly such that they were not left behind and were securely deleted.
319.In 2 to 3 hours, I would have been able to completely wipe the entire hard drive, reinstall the operating system and return all “normal” files to their previous locations. It would not have taken me till 3am to complete this exercise.
320.The material on the computers was not hidden from [the mother]. I can say this because of the following:
(a)[The mother] knew all of my passwords and was able to freely access all of the files located in my area of the computer or on the various storage devices
(b)The .ZIP file that contained the bulk of the files was completely open. If I had wanted to hide it, it would have at least been password protected
(c)The MISC folder was also completely open. If I had wanted to hide its contents, I would have password protected that directory/folder.
I appreciate that the husband likewise will be unable to access his superannuation benefit for many years. On the other hand, Ms O gave evidence that the husband has accommodation available in her home for an unlimited period. The husband earns a reasonable level of income and might be expected to re-establish himself financially within a relatively short time-frame. For these reasons, I will not make a splitting order in respect of the husband's superannuation fund.
The wife will thus take or retain the following assets and superannuation:
1.
Z Street, Suburb U
$1,050,000
2.
Honda motor vehicle
$20,000
3.
Household Contents
$27,000
4.
Shares
$2,500
5.
Business Faulconer-Blan Firm
$20,000
6.
MLC Superannuation
$19,350
7.
Legal Super
$6,600
8.
AGEST Superannuation
$35,000
$1,180,450
She will assume sold responsibility for the following liabilities:
1.
Nab Mortgage
$652,640
2.
NAB Line of Credit
$46,000
3.
NAB Everyday Account
$1,300
$699,940
The wife will thus hold net assets and superannuation to the value of $480,510, which exceeds her entitlement of $451,986 by $28,524.
The husband will take or retain the following assets and superannuation:
1.
Sailing Boat
$2,000
2.
Mazda motor vehicle
$2,000
3.
MLC Superannuation
$282,400
$286,400
He will retain sole responsibility for the following liabilities:
3.
MasterCard
$12,000
4.
Visa card
$1,600
$13,600
The husband will thus hold net assets and superannuation to the value of $272,800, which falls short of his entitlement of $301,324 by $28,524.
The wife thus will be in a position to retain the U property upon payment to the husband of a sum of $28,524. In the event that the wife fails to make such payment to the husband the parties will effect a sale of the U property and a division of the net proceeds as to 91 per cent to the wife and the balance to the husband.
This percentage of 91 per cent is calculated as follows:
·
Net equity in U property
$350,060
·
Net value of assets and superannuation held by the wife
$130,450
·
Difference between the wife’s entitlement of $451,986 and $130,450
$321,536
$321,536 is equal to approximately 91 per cent of the net equity in the U property
·
Net value of assets and superannuation held by the husband
$272,800
·
Difference between the husband’s entitlement of $301,324 and $272,800
$28,524
$28,524 is equal to approximately 9 per cent of the net equity in the U property.
The child K’s education
There is no doubt that the parties made a joint decision that K should commence attendance at X School from Year 5 in 2014. They both signed an “Acceptance of Offer of Enrolment Contract” on 10 August 2012 (exhibit 14). They paid a non-refundable fee of $4,000.
As I understood the evidence of the mother, she changed her mind about K’s attendance at X School because of concerns about the ability of herself and the father now to meet the fees and incidental costs. In final submissions, however, counsel for the mother suggested that there be orders to the effect that each of the parties bear one half of these costs in the event that K attends X School.
I will order that the child K attends X School, at the shared expense of the parties, for three reasons. Firstly, the parties entered into a contact and paid a deposit pursuant to their agreement upon this school for K. Secondly, the parties’ daughters E and F attend a private school. Thirdly, the mother acknowledged that X School “is a good school”.
I certify that the preceding one hundred and seven eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on October 2014
Associate:
Date: 17 October 2014
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