Delaney & Carberry

FAMILY COURT OF AUSTRALIA

DELANEY & CARBERRY

[2008] FamCA 1113

FAMILY LAW – CHILDREN – allegations against the father relating to voyeurism of his sister, women in shower block and a young girl – allegations against the father relating to exposing himself to young girls – allegations against the father relating to child pornography – children live in Western Australia and father lives in Australian Capital Territory – the father’s time with the children has been supervised since 2005 – whether there is a meaningful relationship – whether the father is a risk to his own children

FAMILY LAW – PROPERTY – seven year marriage – initial contributions from both parties – initial contributions used for joint assets – characterisation of costs of supervision, legal and expert fees – adjustment in favour of wife for contributions during the marriage – adjustment in favour of wife for s 75(2) factors – just and equitable

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

M v M (1988) CLR (1988) 166 CLR 69
B v B (1988) 82 ALR 584
Briginshaw v Briginshaw (1938) 60 CLR 366

APPLICANT:

Ms Delaney

RESPONDENT:

Mr Carberry

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

FILE NUMBER:

586

2005

DATE DELIVERED:

22 December 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

17 June 2008; 12 - 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gill

SOLICITOR FOR THE APPLICANT:

Ms Simpson

COUNSEL FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

The mother have sole parental responsibility for the children, a son T born on … April 2002 and a daughter E born on … December 2003.
The children live with the mother.
The father will spend time with the children on two occasions per year:
(a) The first occasion will occur on the last weekend in April. This occasion will occur in Perth.
(b) The second occasion will occur on the last weekend in November. This occasion will occur in Melbourne.
The time the father will spend on each of those occasions will be from 4pm Friday until 8pm Friday; and from 10am Saturday until 5pm Saturday and from 10am Sunday until 3pm Sunday.
The time the father will spend will be supervised by a professional supervision agency.
The mother will ensure that the father remains on the S Company travel staff register.
The father will pay for his travel to Perth and all associated costs of his stay including accommodation and car hire. The father will pay for any costs of entertainment for the children if they are not included in the cost of supervision.
The mother will pay for her and the children’s travel to Melbourne and for any costs of the overnight accommodation during the time in Melbourne. The father will pay for any costs associated with collecting the children and their entertainment, if they are not included in the cost of supervision.
The mother will pay one third of the cost of professional supervision in Perth and in Melbourne. The father will pay two thirds of the cost of professional supervision in Perth and Melbourne. Such payment will be made in accordance with the method and time requested by the supervision agency.
Notwithstanding the above periods of time referred to, the two occasions in the year will be determined by the availability of a professional supervisor. Each of the parents will do whatever is reasonable to cooperate to ensure that the two periods of time with the father occur to meet the availability of the supervisors.
The father may communicate by telephone with the children for periods not exceeding 10 minutes for each child. This telephone call may be made by him on each Sunday evening and on Christmas day and on each of the children’s birthdays and on the father’s birthday and on Fathers’ Day between the hours of 6 – 7pm (Western Australia time) unless the parents agree on another time and day.
The mother may monitor the telephone calls by the father with the children (but not otherwise interfere with the call) for a period of one year from the date of these orders.
The father may communicate with the children by letters from the date of these orders and by e-mail after E turns 10 years old.
The father may send the children gifts on their respective birthdays.
The mother will encourage the children to receive the father’s telephone calls.
The wife retain all shares in her name and the proceeds of sale of the Ford Festiva motor vehicle.
The husband retain all shares in his name and the Magna Mitsubishi motor vehicle.
The wife receive $250,460.85 from the proceeds of the sale of the house being held in the joint cash management account.
The husband receive $$90,617.02 from the proceeds of the sale of the house being held in the joint cash management account.
If there is any money remaining or any liability remaining in relation to the joint cash management account, it be divided in an amount of 62% to the wife and 38% to the husband.
The wife transfer to the husband all her right, title and interest in the max-direct account, the shares in Century Australia and the Commbank investment account.
Each party retain all other items in his or her possession.
Any submissions about costs will be in writing and filed in the Family Court Registry in Canberra on or before last working day of January 2009.
All material produced subpoena will be returned to the person producing it (or destroyed at the option of the person producing it) by the Registry at Canberra at the conclusion of the Appeal period.
Any exhibits tendered in the proceedings will be returned to the person from whose custody the material came, or if tendered from subpoenaed material, to the producer of such material.
This matter is removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CA 586 F of 2005

MS DELANEY

Applicant

And

MR CARBERRY

Respondent

REASONS FOR JUDGMENT

Introduction

This is a very troubling matter. The parties have spent many hours in court before me (as well as previously before the Federal Magistrates Court) and the issues involved are both complicated and disturbing.
There are two children, T aged six and E aged almost five. The children have lived with their mother in Perth since December 2004 - the vast majority of their lives. The father has been accused of being what could be described as a sexual deviant. He has been diagnosed with paraphilia, which the Macquarie dictionary defines as “a preference for or addition to unusual sexual practices.” The following incidents have been alleged: sexually interfering with and watching his sister when he was a teenager; participating in voyeurism of women in a shower block at the military base he was employed at; peeping in lit windows in his neighbourhood; exposing himself to three young girls that lived next door; watching the elder girl that lived next door change her clothes; and very heavy use of pornography, some of which may be child pornography.
In essence, the issue for me to decide is whether the children would benefit from spending any time with the father and if so, what conditions if any are necessary to protect the children from any harm. To do this, I must make findings of fact about the incidents alleged so far as I am able to, and assess whether there are consequences for his own children. There is no evidence that he has in the past directed any sexual attention to his own children although his opportunity to do so, if he was so inclined, has been limited by the supervision of his time with them since June 2005.
There are also applications with respect to a final property division.

Background

By way of brief background (which is not intended to be exhaustive), the father was previously married in 1988. In 1991 he engaged in the voyeurism of the women in the shower block. He was diagnosed with paraphilia around the same time. His first marriage ended in that year.
The father met the mother in 1993 and they commenced a relationship. They were married in 1997. In 2002 their first child, T, was born and the following year their second child, E, was born. The parties had some trouble in their relationship and the mother went to Perth with the children in September 2004 for approximately six weeks. The mother and children returned to Canberra in October and then to the family home in November.
In December 2004, the parties’ neighbour, Ms R, became aware that the father had been exposing himself to her daughters and had been watching Y change her clothes over the previous 18 months. She told the mother. Approximately one week later the parties separated finally.
Around this time the father sought psychiatric assistance and was admitted to hospital. Also at this time the mother commenced proceedings in the Federal Magistrates’ Court and sought to relocate with the children to Perth. The mother was granted interim orders on 23 December 2004 that the children live with her, noting that she intended to move with them to Perth. They left two days later.
Two reports were made by the father’s treating psychiatrists, Dr K and Dr M in January and March 2005 respectively. In June 2005, orders were made by consent for the children to spend time with the father on a supervised basis.
Further assessments of the father were conducted in July 2005 by Dr F (treating psychologist), Ms H (a psychologist specialising in the area of sexual offenders) and Ms S (a court-appointed expert psychologist).
Between July and October 2005, the father’s computer hard drive was transported between his home and his then solicitor after allegations were raised about his possession of illicit sexual material. He delivered it to his solicitor and then regained possession of it in August. He purchased a new hard drive and software that is known as BC Wipe. He used that software on his hard drive to erase its contents. His explanation for this was that he needed to delete sensitive material that was related to his work at a government agency. He then gave the hard drive, now erased (at least in part) to Forensic Data Services.
Further reports were received from Dr M (February 2006) and Ms S (March 2006).
In mid-2006 an Anton Pillar order was made requiring the father to make his premises available for inspection and seizure of his computer. This was for the purposes of investigation of the allegation that he possessed child pornography. At this time the father was continuing to spend supervised time with the children.
The Australian Federal Police and the Online Child Sex Exploitation Team were informed of these events in August 2006. In October they concluded their investigation after comparing the web addresses on the hard drive with known sites containing illicit material and visiting the web site to determine its current content. They reported that “No URL for websites with illicit content was located on either drive.” No further action was expected by OCSET. Two hard disk drives were then returned to the court and placed in safe custody.
In February 2007 Forensic Data Services made a further copy of these hard disk drives. This third copy was released to the mother’s solicitor who engaged a private expert, Mr I, to examine the material. He located what he believed to be illicit images and wrote a report in March 2007. The father at one point questioned the expertise of Mr I and whether the hard drives were accurately copied and kept in a secure chain of custody. The hard drives have been securely stored in the Family Court of Australia registry at Canberra. Mr I has shown himself to have a high degree of expertise and experience and his evidence has been of great assistance in these proceedings.
Orders were made in March 2007 requesting the Australian Federal Police to undertake further investigations.
The final result of these investigations was that they did not intend to press charges against the father. Their letter written on 15 February 2008 reveals that two files containing what may be considered an illicit image were found. They also found a file containing a newsgroup e-mail containing child exploitation terms and hyperlinks to websites and noted that “the titles of these websites are suggestive that they contain child exploitation material.” However, those web addresses were no longer operable and they were unable to assess the material.
They also located a video with pornographic content. The assessment of the video was that it depicted a “post pubescent girl involved in sexual activity. However, due to the combination of the camera angle, field of vision, duration of video, the activity being performed and the physical attributes of the female which are visible, an accurate determination of the female’s age is unable to be made.” Given these impediments, they were not able to determine beyond a reasonable doubt as to whether the video met the definition of child pornography.
Their reason for not prosecuting the father was recorded as:
§ “The inability to confirm the existence on the hard drive of the images identified by Mr [I];
§ No other material has been located on the hard drive which is assessed as child pornography material;
§ No evidence to suggest any particular person was involved with placing, retaining or deleting the subject material on the hard drive;
§ Similarly, no evidence to exclude any particular person from involvement in the placing, retaining or deleting the subject material on the hard drive.”
On 17 June 2008, Mr I gave his evidence. His evidence-in-chief was to repeat the technical process of searching the hard drive and retrieving images. Those images were displayed to the court and descriptions of them were transcribed. The Independent Children’s Lawyer cross-examined Mr I but the father declined to do so.
The following day the matter was before me after the father made an application to restrain the mother’s solicitor from acting due to a potential conflict of interest. I delivered judgment on that matter on 20 June 2008 and declined to order the restraint.
In October 2008 the father filed a contravention application. It was not pressed at the final hearing.
Throughout this time, the matter has come before me on many occasions to deal with interim arrangements for the father to spend time with the children as well as a number of issues relating to property and subpoenas in readiness for the final hearing.
Since these proceedings began, the father has spent time with the children only on a supervised basis. At the time of final hearing, the orders for the children to spend time with the father were that it would be on three consecutive days each month being Friday, Saturday and Sunday. This was to occur in Perth for two months and Melbourne the third month and be professionally supervised.
I note that it has been challenging for the father to continue to participate in these proceedings given that he has found it too difficult to engage legal representation. I have endeavoured at all times to provide assistance to him within the bounds of my role and to explain points of law or procedure that were unfamiliar to him.
The finalisation of the hearing was set down on five occasions before it was finally heard in November and those adjournments were granted for the purposes of the parties collecting further evidence where necessary and at times at the request of the father.
On 10 June 2008 the father indicated that he no longer felt competent to participate in the proceedings. He agreed to file his final affidavit material but stated that he would otherwise not call witnesses or seek to cross-examine the mother’s witnesses. On that day I appointed an Independent Children’s Lawyer, notwithstanding the lateness in the proceedings and the final hearing dates were adjourned to provide time for the ICL to participate meaningfully, in the face of the father’s apparent refusal or declared inability to do so.
Subsequently the father did participate in the proceedings and filed his final case summary documents within time. Considering his position as a self-represented litigant, he competently presented his case.
I was urged by the father to remember that during the week of the final hearing in November, his mother was undergoing heart surgery. He indicated that this was a very difficult time for his family. He did not seek an adjournment of the proceedings. He had his brother at the bar table with him to assist and the support of his sister and other brother at various times. While I understand that the week of the final hearing was particularly difficult for him, I did not observe him to suffer any additional impediment. The matter has been before me on 21 occasions over a period of three years. During this time I have had ample opportunity to observe the parties. I did not notice the father to behave in a way which was out of character from my previous observations of, and interactions with him.

Possible Parenting Orders

The father indicated (finally) that he does not oppose the relocation to Perth and concedes that the children will live principally with the mother.
The range of possible orders I could make about the time the children might spend with the father are:
§ No time - in any form, physical, oral or written communication;
§ No physical time but some telephone and written communication;
§ Professionally supervised time in Perth/Melbourne/Canberra, noting that the number of times this could occur in a year will be limited by the cost of travel and of the professional supervision service;
§ Supervised time in Perth/Melbourne/Canberra, supervised by the father’s family or his partner Ms G, noting again that the number of times this could occur in a year is limited by the cost of travel;
§ Unsupervised time in Perth/Canberra.
All of these options are subject to my assessment of how they fulfil the best interests of the children. In particular I must assess the risk of any harm to the children as a consequence for their relationship with their father as well as the practical impediments (including that travel across Australia is onerous for young children and the availability and suitability of people to act as supervisors).
The mother, in the end, sought an order that there be no contact between the father and the children. In the event the court did not grant this order, she sought that the children spend two consecutive days with the father from 9am – 4pm on two occasions per year, amounting to four days per year, such time to be professionally supervised. She termed this ‘recognition contact.’ She sought sole parental responsibility. She did not seek any orders about telephone calls or written communication.
The father sought orders at the final hearing that there be equal shared parental responsibility. He sought that all time spent with the children be unsupervised or in the alternative that time with T be unsupervised and time with E be supervised until the Court deemed it unnecessary; and that if there was to be supervision, it be carried out by his family members. In terms of the quantum of time, he sought that he spend half of each of the school holidays with the children in Canberra or Melbourne and such other time in Perth as agreed between the parties. He also sought that he spend Fathers’ Day, the father’s birthday and the children’s birthdays with them wherever the children are residing at the time. He sought that there be telephone calls on four occasions per week as well as the use of webcam and Skype.
The Independent Children’s Lawyer in her final submissions suggested supervised time for the father but noted that this is limited both by practical considerations and the extent to which it would enable the children to develop a meaningful and natural relationship with their father. She did not suggest an order for unsupervised time.

Best interests of the children

Under the Family Law Act 1975, the primary consideration in matters relating to children is the best interests of the children. There will of course be significant consequences for the parents in any Orders I might make– and particularly for the father – but the task before me is to make the best decision I can for the children to enable them to benefit from the opportunities available to them and to enjoy those in safety.
In determining what the best interests of the children are, the Act prescribes two primary considerations and a number of additional considerations.
The primary considerations are:
(a)The benefit to the children of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
In this particular matter both of those matters are substantially intertwined. I acknowledge that ‘meaningful relationship’ is not an absolute term and must be considered in the context of the circumstances of the parents, the age of the children and the possibilities for the children to spend significant time (or substantial and significant time) with each parent. As a result of the geographical separation of the parents it is difficult for these children to spend frequent or substantial time with both parents. This may very well limit the meaningfulness of the relationship to the children at their young age

. 40.This issue is further complicated by the various allegations that have been raised in relation to the father. This necessitates a consideration of protecting the children from physical or psychological harm or being exposed to abuse.

Accordingly, it is appropriate for me to consider the various allegations, particularly of a sexual nature, made about the children’s father and to make findings in relation to those matters so far as I am able to do so. Upon completion of that exercise, I am conscious of the fact that I am still obliged to consider (whether or not I can make findings either positive or negative about some of the allegations) whether orders in relation to the children would expose the children (in the circumstances of those findings or my inability to make them) to an unacceptable risk.[1] I will consider this matter more fully when I come to a determination of the appropriate orders to be made in this matter.
[1] B v. B (1988) 82 ALR 584, M v. M (1988) CLR (1988) 166 CLR 69.

Preamble to a consideration of allegations of a sexual nature directed towards the father

I have the following information available to me in making my findings: the extensive nature of the material filed in these proceedings, the evidence that has been given, the large number of reports and opinions that have been offered by those who have an area of specialty in some parts of the evidence. I have had the advantage of being able to consider all of the evidence and to determine to some extent the level of disclosure made by the father to each of the experts, some of whom were his treating therapists. It goes without saying that I do not have any expertise myself in these areas. I am reliant upon the expert evidence put before me and it is appropriate that I should examine such evidence critically in the light of the material that has been made available to the expert and the extent of his or her experience in the matters specifically the subject of the opinion.
The father has exhibited a continuing and sincere commitment to pursuing a relationship with his children. My observations of the father, however, over what was an extended time not only in the days spent in court but because of adjournments, over a considerable period in elapsed time, lead me to conclude that the father’s ability to judge his own actions is impaired by his self-absorption and to some extent by the nature of the therapy that he has undertaken. It was difficult not to be moved by the father’s emotional sequence of apologies at the beginning of his oral evidence in November. Again I do not doubt his remorse about some of his actions or even his desire to put things right. I do however, seriously doubt his ability to understand the full implications of what he has done on occasions or to understand the inconsistencies in the way in which he presents some of his justifications and explanations for what has happened.
The father’s lack of self-awareness is illustrated in part by his continued assertion during the course of his oral evidence that he was interested in adult websites and he was only interested in consensual sex between adults. He nominated an interest in girls between the age of 18 and 19 and stated that it was his understanding and belief that the proprietors of the various websites sometimes presented girls as younger than legal age but that the people involved were over that age.
The anomaly in the evidence of the father and his activities is that he conceded freely that he searched websites with names such as Lolita or something similar incorporated into the title of the website, knowing that “Lolita’s” were young girls seducing older men or engaging in similar sorts of activities. He asserted that it was his knowledge and belief that anyone appearing on such a website would in fact be over the age of 18.
I include the following portion of the cross-examination of the father in regard to this issue:[2][3]
[2] All references to transcript are provided from an extract of transcript of the father’s evidence and the page numbers are derived from those extracts
Mr Gill: Mr [Carberry], was it your view that you could lawfully search for girls aged 18 or 19?
[The father]: That’s correct.
Mr Gill: And that specifically you wanted to go as low as you could, at least legally?
[The father]: Well, yes, I didn’t want to break the law.
Mr Gill: But assume for the purpose of this question that you were trying to remain compliant with the law, you wanted to get as young as possible?
[The father]: No.
Mr Gill: Mr [Carberry], did you look for girls younger than 18?
[The father]: No.
Mr Gill: Did you look for Lolita’s?
[The father]: Yes.
…
His Honour: Can I just ask, Mr [Carberry], when you were talking about that, you’ve said 18 and 19 year olds pretty regularly and I’m not suggesting otherwise; are you saying that your taste in these things related specifically to girls of 18 or 19 or that you were conscious of the illegality of pornography relating to people who were of lower age than that and that therefore you avoided it as an intellectual exercise rather than a preference?
Mr [Carberry]: It was a combination of both, your Honour. The last thing I want to do is break the law. So I did look at the website – if I was entering a website but other than that at a given time I did have a specific interest for 18 or 19 year old and 20, 21.
His Honour: But – not that I claim to be any expert about this at all – but what’s – apart from the obvious fact of one year – what’s the difference between, for example, a 17 year old image – an image of a 17 year old and an image of an 18 year old? Is there some discernable difference?
Mr [Carberry]: I honestly don’t know. It’s known that images are doctored, photo-shopped. So to be honest I’m relying on the – what the information is I’m given on the website.
…
Mr Gill: Mr [Carberry], is it the case that you would have gone younger if you could have?
[The father]: No.
Mr Gill: Right. Because, you just weren’t attracted to 17 year olds but you were attracted to 18 year olds, is that what you’re saying?
[The father]: I’m not interested. What I was after is 18 and 19 year olds, 21, young girls and that’s 18, 19, 21.
…
Mr Gill: So you specifically looked at the Lolitas?
[The father]: Because I had found it once before.
Mr Gill: Step by step. You specifically looked for Lolitas?
[The father]: Yes.
Mr Gill: You knew that Lolitas referred to an age of under 18?
[The father]: Yes.
Mr Gill: You’re saying the websites made things look how people wanted them to look?
[The father]: No, but the website that I looked at, the Lolita website, had teenage models of 18 and 19.
Mr Gill: Made to look like what, Mr [Carberry]?
[The father]: The name, I’m talking about the name, not the - - -
Mr Gill: Made to look like what? What were the models made to look like?
[The father]: Eighteen and 19 year – young.
Mr Gill: And there wasn’t just one Lolita website you visited was there?
[The father]: No.
Mr Gill: It was something that you regularly searched for?
[The father]: Yes.
Mr Gill: Is that right? And you did so in the knowledge that Lolita was a term which referred to girls under the age of 18?
[The father]: That’s correct.
The problem for the father in this is simply that irrespective of whether or not the people involved were over the legal age his interest was obviously in people who looked as if they were under the legal age even if they were actually over the legal age.
This tends to diminish the effectiveness of the father’s protestations about where his interests lie in this sort of thing to the extent that I do not accept his evidence that his particular interest is in girls of aged 18 or 19. I believe that he thought that this was the right thing to say in the context of this matter. While he has been an extraordinarily forthcoming about some of his activities in some circumstances, it is noticeable in respect of each of the events that I am about to analyse there has been a reticence to be completely straight-forward. It is possible that the father in his attempts to deal with his affliction (and I regard it as such) finds that he has to engage in a measure of self-delusion to maintain his self-esteem. I am not a psychologist and have no ability to make such a diagnosis or deduction but the extent and nature of his conduct in this regard means that such a conclusion might be drawn even by a lay person.

The fathers actions in relation to his sister

The father conceded to some, though not all of those engaged in either assessing him or engaged in therapy with him, that he had watched his little sister in the shower. It was also asserted that he had reported that he had fondled her. He became less certain of this latter fact as the evidence unfolded and thought that he may have just said that to Dr K. I include this part of the father’s cross-examination:[4]
[4] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 5
Mr Gill: Did you tell Dr [K] that you began to explore your own sexual curiosity by peeking at your sister while she was in the shower? Did you tell him that?
[The father]: Yes
Mr Gill: Was that accurate?
[The father]: Yes.
Mr Gill: Have you repeated that to Dr [M]?
[The father]: Yes.
Mr Gill: To Dr [O]?
[The father]: Yes.
Mr Gill: To Dr [F]?
[The father]: Yes.
Mr Gill: Did you go on to say to Dr [K] that this continued for a number of years – that is the peeping? Did you tell him that?
[The father]: Yes.
Mr Gill: Have you told your other three doctors that?
[The father]: To my knowledge, I think I did.
Mr Gill: You think you did?
[The father]: Yes.
Mr Gill: That you were peeping at your sister in the shower for years?
[The father]: It would be a fair chance that I did say that I was peeping at my sister for years.
Mr Gill: Because that’s what you were doing?
[The father]: Yes, sir, that’s correct.
Mr Gill: So that’s not distorted, that is what you were doing?
[The father]: Yes.
Mr Gill: Right. And that there was one moment – sorry. Did you tell Dr [K] that there was one moment of sexual activity with her, involving fondling?
[The father]: Yes.
Mr Gill: Was that accurate?
[The father]: No.
Mr Gill: That was inaccurate?
[The father]: That’s correct.
Mr Gill: So the peeping for years was accurate but the fondling was inaccurate?
[The father]: That’s correct.
Mr Gill: In what way was that inaccurate?
[The father]: Because my sister and I – when I approached her, never ever mentioned that I had even done that to her.
Mr Gill: Sorry, you’re saying it’s inaccurate because your sister never mentioned it to you. Is that what you’re saying?
[The father]: I mentioned it to my sister. I said that, “I – I apologise for al the things and – and – and for – for – for the fondling and all that,” and she never acknowledged it occurred.
Mr Gill: So, because she hasn’t acknowledged to you that it occurred, you now think it didn’t occur? Is that what you’re suggesting?
[The father]: No.
Mr Gill: So did it occur or not?
[The father]: I don’t know.
It is not clear to me why he would have made such a statement if it had not been true and in keeping with the course of conduct that I had commented on above, it seems to me that on the balance of probabilities it is more likely than not that he did engage in some inappropriate sexual touching of his sister. I am prepared on the whole of the evidence and based on the admission by the father himself to Dr K, to find that he did in fact inappropriately sexually touch his sister.

Voyeurism

The father admitted having voyeuristic tendencies to Ms H. These are shown by two sequences of events: the first is peeping in lighted windows in his neighbourhood; the second is an incident of watching women in the shower block at the military base.
In relation to the neighbourhood voyeurism, Ms H records the following in her psychological report:
“In discussion about his voyeuristic behaviour [the father] said that over a three year period he ‘developed’ and ‘nurtured’ his tendency to voyeurism.
[The father] stated that seeing lights on in houses led to feelings of wanting to look into the windows, which he did. This behaviour was sexually arousing to [the father] who had erections while looking through the window, and when he later masturbated he recalled his observations.”[5]
[5] Report of Ms H dated 22 July 2005, annexure E to Ms H’s affidavit sworn on 20 February 2006, at page 4 of the report
In cross-examination in regard to this neighbourhood voyeurism, I record the following part of the transcript:[6]
Mr Gill: Did you speak to any of those three doctors about previous episodes of voyeurism on your behalf – that is, prior to the [R] children? I’ll come to the [R] children in a moment, but episodes of voyeurism on your part that predated the [R] children?
[The father]: Yes.
Mr Gill: What did you tell them?
[The father]: I told them that I got caught in the [women’s] quarters and subsequently punished by the [Defence Force], that – that the trigger of a light in a window would trigger a – a process in – in my thinking that there could be somebody changing and “Why don’t you go and have a look?” And in that process of thinking there’s two parts; one of – one side of my thinking process is saying, “Go on, one more time,” and then you go, “Stop it,” and the other person is saying, “You’re a fuck-head. You’re – can’t you see what you’re doing? Can’t you see you’re going to get caught?” So until I sought treatment I struggled with my mind to do things and not to do things.
[6] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 7
It seems that the father engaged in some sort of mental debate. One part of him wanted to simply seek the gratification or the stimulation of seeing the women undressed and the other part of him suggested that he was stupid or wrong to do so or, more particularly, worried about being caught. This is important in two scenarios. If he thought it was wrong, but was unable to control himself, this demonstrates that he has some insight but no ability to restrain his conduct even if he wished to. On the other hand, if his hesitation in pursuing the voyeurism was because of a fear that he would be caught rather than because he thought that it was wrong behaviour, this demonstrates that his primary concern is himself rather than reflecting on the effect his behaviour would have on someone else that was in a vulnerable position. In any case, regardless of the fact that he engaged in some debate with himself, he decided to continue the behaviour. Neither a sense of its wrongfulness nor the risk of being caught could prevent him at that stage.
The fact that this conduct was not once or twice but a course of conduct suggests that it is more often that he gave into his urges rather than resisted them. These incidents in themselves would not represent necessarily any particular basis for concern that there could be some direct physical action in relation to the father’s own children by him. Nevertheless it represents part of a history and that is important in the evidence of Ms H about the assessment of risk of something possibly happening to the children.
The father’s evidence in regard to the voyeurism at the military shower block was a little confusing. It was suggested by counsel that the father had reported to Dr K that it had occurred at Y Base (which is in Queensland), with which the father agreed. However, the father later recanted from this and explained it occurred in Western Australia.
I repeat the relevant part of the father’s cross-examination:[7]
[7] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 8
Mr Gill: Just going back to the issue of voyeurism, is it the case that you told Dr [K] that you engaged in voyeuristic activities while you were at [Y Base]? Is that right?
[The father]: Beg your pardon?
Mr Gill: Did you tell Dr [K] that you engaged in voyeuristic activities while you were at [Y] Base?
[The father]: I – I don’t know.
Mr Gill: Did you engage in voyeuristic activities while you were at [Y] Base?
[The father]: Yes, I did, and that’s to – pertaining to the women in the shower blocks.
Mr Gill: Right. And what often accompanied that was masturbation; is that right?
[The father]: If that’s what I said, then it’s correct.
Mr Gill: Well, was that correct, was that the case?
[The father]: No, because, as I’ve said to all my psychologists, I lived in fear – when I had that – when I was performing voyeurism, or conducting it, I – I lived in fear of getting caught, so I was – one part of me was pushing me to – to conduct the action, the other part was fearing; I was fearing that I was going to get caught.
Mr Gill: But it was something that you didn’t feel that you could control?
[The father]: Beg your pardon?
Mr Gill: Was it something that you didn’t feel that you could control?
[The father]: At that time, no.
Mr Gill: That being, no, you couldn’t control it?
[The father]: Yes, that’s correct.
Mr Gill: As well as behaving in a voyeuristic manner at [Y Base], did you also do so when you were posted to WA?
[The father]: Yes, the shower-block incident is in WA.
His Honour: Didn’t you say that happened in [Y Base]?
[The father]: No, it’s in – it’s in WA, your Honour.
Mr Gill: We just said “[Y Base]?”
[The father]: My apologies.
The father gave evidence that it occurred on only two occasions in the shower block. Notwithstanding the confusion about where this was and how many times it occurred or how many military bases it may have occurred at, I am satisfied that probably it only happened at one military base but that the conduct involved, as the father himself admitted his looking into shower blocks at women dressing and undressing and showering. Nothing in the evidence about this suggests that they were young (that is below the age of 18) but there seems no doubt, notwithstanding some equivocation on the matter by the father, that it was intended to, and did sexually arouse him. The extent to which he masturbated as a consequence of his observations is not clear but the fact that he did it at least once is.

Exposure to and voyeurism of the neighbour’s daughters (Mrs R’s children)

This incident was described by the father in a number of ways, some of which were more damning of him than others.
The incidents involved the child Y primarily, but her two younger sisters were also affected. The father admitted to watching Y undress as well as to exposing himself (in various forms, either in his underwear or without underwear) to Y and her younger sisters. This was brought to Mrs R’s attention when her daughter Y reported it to her. At the time of swearing her affidavit on 22 December 2004, Mrs R’s three children were aged 14, 12 and 10. This was reported by Y to be approximately 18 months after the father’s behaviour had begun, which, if accurate, meant that the children could have in fact been 9, 11 and 13 at the oldest when some of the activities occurred.

It appears that Y would, after swimming, remove her bra top as she went from the pool to the house. Apparently this was within the father’s line of vision and he observed this, it seems, on a number of occasions. He reported it to his therapists and it is quite clear that this was not simply an accidental matter but something that he was interested in even if not stimulated by it. There is no evidence to suggest the latter proposition.
However, more concerning is the fact that subsequently the father would go close to the house in which Y lived and observe her dressing and undressing through a lighted window without a curtain down. In at least one explanation for his behaviour, the father asserted that he had been egged on by Y and that she obviously wanted him to watch because she did not close the curtain.
I include the relevant portion of the father’s cross-examination about the peeping, after he had admitted two incidents of seeing her take her top off after being in the swimming pool:[8]
[8] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 12, 13, 14
Mr Gill: Right. Aside from those two incidents, when else did you peep at her?
[The father]: When I took – because her window is facing the roadway, when I took [T] for a walk, it would be on sunset, we would be walking – our – on our side of the block and I would be looking, hoping that she would be there, changing.
Mr Gill: So you took your son for a walk at that time, hoping that you could have a peep at this young woman, or young girl, is that right?
[The father]: No.
Mr Gill: You’ve said that you were taking [T] for a walk?
[The father]: That’s correct.
Mr Gill: And you were looking in the window, hoping that you’d see her changing?
[The father]: No, because at the time, as I said to you, the – my stimuli was the trigger of the lights and that – not necessary – whenever I went for – for a walk with [T], or even by myself, was there any – the blind open or any lights on. If I happened – if I happened to be coming back and the light’s on, then I was hoping that I would get a peek.
Mr Gill: Is that why you were walking at sunset, in the hope that lights might go on?
[The father]: No, because at the time I was trying – after coming home from work, I was trying to take [T] away from my ex-wife, to giver her some time to allow her to do other stuff.
Mr Gill: And was [Y’s] the only window that you were peeping at?
[The father]: Yes.
Mr Gill: So, whatever walk you took [T] on, the only window that you were interested in was of a young girl, who you thought might be aged 14. Is that right?
[The father]: That’s correct.
Mr Gill: Her window specifically?
[The father]: That’s because it faces on our – if you look at my affidavit, the pictures, the – her window is the only one that faces our house. The other bedroom windows actually face to another road.
Mr Gill: Out of all of the people that you could have peeped at, it was the girl that you thought was maybe 14?
[The father]: That’s correct.
Mr Gill: And you kept this up for, you say, a year?
[The father]: That’s correct.
Mr Gill: Do you think it might have been as much as 18 months?
[The father]: Don’t know.
…
Mr Gill: This looking at the window, trying to see [Y] getting changed through the window, hoping that she might get changed, was that looking something that you couldn’t control?
[The father]: At that point in time, yes, I couldn’t control it.
…
Mr Gill: Sorry, can I just backtrack for a moment, please, Mr [Carberry]? Is it the case that, when you were looking at [Y], you became very aroused by that?
[The father]: I was sexually curious.
Mr Gill: Did you say to Dr [K] that you would note her taking her top off in her bedroom and you found it very arousing? Did you say that to Dr [K]?
[The father]: If that was in the report, then I – yes, I did say it.
Mr Gill: Would you like to see the report?
[The father]: Yes, please.
Mr Gill: Fourth-last paragraph, underlined in red, Mr [Carberry]. Did you tell Dr [K] that you found it very arousing?
[The father]: Yes, I did.
…
Mr Gill: Do you agree that that observation of [Y] was something you found very arousing?
[The father]: I don’t know.
Mr Gill: If you told Dr [K] it was, chances are that it’s right?
[The father]: Then that’s – that’s correct.
In further cross-examination, the father gave the following explanations for his conduct:
Mr Gill: In relation to – sorry, let me ask you this: did you tell Dr [K] that [Y] had made no effort to put the blinds down?
[The father]: That is correct.
Mr Gill: Why did you tell him that?
[The father]: Because I was trying to justify that – as Ms [H] said, that – and in my words, that she egged me on.[9]
[9] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 15
In response to questions as to why he exposed himself on three occasions (this is the number of times he admitted in cross-examination[10]), he gave the following explanations:[11]
[10] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 17
[11] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 17
Mr Gill: Because – why?
[The father]: Because I thought they – they enjoyed it.
Mr Gill: And why would you think that they might enjoy it?
[The father]: Because the first incidence [sic], they were giggling, they were looking though our bushes, into our young son’s window, to see if it – they can see me through they – through the house, which was facing the toilet.
Mr Gill: And you thought that they were sexually curious?
[The father]: Yes, that was my thoughts at the time.
Mr Gill: So it was a sexually-oriented act towards the girls?
[The father]: Yes.
Mr Gill: And in particular, it was a sexually-oriented act towards [Y] - - - ?
[The father]: Yes.
Mr Gill: - - - who you found quite arousing?
[The father]: No, I think at the end they – I just wanted their attention.
Mr Gill: So we’re now moving away from the proposition that you found [Y] very arousing; you’re saying that’s not so?
[The father]: No, it became a game.
Mr Gill: So it wasn’t a question of arousal for you?
[The father]: No, I had no gratification. I couldn’t masturbate, I can’t – couldn’t ejaculate. I was sexually dysfunctional.
I do not accept any of these explanations as justification for the father’s behaviour. The sexual interaction between three young children and the father was not sought by them, nor can they be considered to be responsible for his attention or actions. The fact that he refers to this kind or interaction with children as a game, or attention-seeking, or something they would enjoy is an indication of his continuing inability to fully understand his own behaviour.
Dr F, the father’s treating psychologist, considered that the father’s looking in windows represented in some ways a desire by the father to engage in a fantasy of intimate family life that he wanted for himself or his fantasy about wanting to be seen and to be understood. He analysed it as being in a fantasy relationship although not necessarily a sexual one; being an interaction that connected him back to a period of innocence and delight and discovery that was not necessarily at all times sexual. He assessed that the father would fantasise himself as a young man of similar age to Y and that this watching and exposure was a way that he could reconnect with a period of ideal life and an idyllic past. He believed the father to be having images of discovery, innocence, harmony, sweetness and some sexual interest.[12]
[12] Evidence of Dr F given in cross-examination by Mr Gill, 14/11/08 at approximately 4:18pm – 4:26pm
I do not accept the explanations offered by Dr F. This was a grown man deliberately seeking to stare through windows at a young girl undressing. As the Independent Children’s Lawyer remarked in her opening comments in her final address, an enduring and highly disturbing image is that the father would take his young son for a walk (and I accept and find that he did so on occasions), hoping if not expecting to be able to observe Y undressing at the open window.
His subsequent exposure of himself to Y and her two younger sisters (all apparently younger than she was) is bizarre and to the extent that the father suggested that this was some sort of attention seeking by him or a request that people look at him (not taken to be a literal suggestion that they should look at his genitals) is also in my opinion, an example of self-delusion by the father.
My views about this matter have been in some parts informed by the fact that the father has reported the number of times that this has happened differently to a number of different therapists. For example to Dr F it was some about eight times,[13] to Ms H it was between six and twelve times over a 12 – 18 month period,[14] to Dr M and Dr O[15] it was once that he exposed himself and a number of occasions over a period of a few weeks that he watched Y and in his own cross-examination it was three times that he exposed himself.[16]
[13] Evidence of Dr F given in cross-examination by Mr Gill, 14/11/08 at approximately 4:30pm
[14] Report of Ms H, dated 22 July 2005, annexure E to Ms H’s affidavit sworn on 20 February 2006, at page 5
[15] Evidence of Dr O and Dr M given in cross-examination by Mr Gill, 14/11/08 at approximately 3:06pm
[16] Cross-examination of the father by Mr Gill, 13/11/08 transcript page 17
It is obvious that it happened over a period and hence was not a spontaneous action on the part of the father. It happened on a number of different occasions. It was, and is convenient for the father to minimise the number of occasions and it is difficult to know precisely how serious the minimisation is because I accept that on all occasions he may not have exposed his genitals themselves to the girls.
It was part of the father’s anguished sequence of apologies that he wanted in some way to make reparation for this action by going to the girl and in some way apologising to her or explaining to her what had happened. Even this attempt on his part, which I accept was substantially sincere, illustrates that the father has little concept of what effect such an action would have on someone of that age, particularly in the light of all that had transpired including finally the girl’s having enough courage to discuss the matter with her mother and subsequently to report the matter to the police.
I accept that this behaviour was an example of the father’s paraphilia and it may not be his fault in one sense of the word in that he has the affliction he has. That however, is not the question that I am obliged to answer. It is not necessary that I should make findings that would result in some form of criminal guilt so far as the father is concerned. Nor does it matter in the long run whether his conduct is driven by some personality disorder or some psychological condition or whether he simply deliberately seeks some form of sexual gratification. My concern must primarily be, to ensure that the children, the subject of these proceedings, are safe.
The sequence of matters referred to above leaves me with no doubt that the father has had an interest in very young girls either at either a pubescent or immediately post-pubescent stage. I am concerned there has been at least some progression of his interactions with them, other than simply gratifying himself by looking at them. His exposure and voyeurism must to some extent be regarded as compulsive. He cannot possibly have thought, if he were thinking rationally, that he could continue to do this without somebody drawing this to her parents’ attention, with the consequences that would necessarily flow. The debate in the father’s mind, to which I referred previously, was again being lost in favour of his accepting the urge to carry out the behaviour he felt compelled to carry out rather than resisting it, regardless of the risk to himself.

Use of pornography

A significant part of the early evidence in this matter related to the possibility that the father had sought out and viewed child pornography. The history set out at the beginning of this judgment details in part the circumstances in which the father’s computers were examined and re-examined. To some extent what these searches revealed is not crucially relevant to my determination about the nature of the father’s conduct because of his own admissions about what he did.
I am unable to say from the evidence before me, including the evidence of the father denying that it was so, that the father deliberately set out to remove from his computer hard drives any material that may have satisfied the description of child pornography. I remain doubtful about whether his application of the program B C Wipe was intended exclusively to remove the Department of Defence material on his computer or whether it was also intended to remove any references to child pornography or to other forms of pornography.
The images found on the computer hard drive by Mr I and presented to the court are profoundly disturbing. The depiction of a young girl (certainly a girl as opposed to someone masquerading as a girl it would seem) gagged and exposed to sexual activity was deeply distressing. It is possible, as the father suggests, that his search for pornography, which he undertook regularly and extensively, may have brought about his connexion to various websites that he did not intend directly to access.
He explained this by saying that when he was viewing some sites there would be a sequence of “pop-ups” that would arrive in cascades to the extent that on some occasions he had to pull the plug out of his computer to stop the flow. He also asserted that he did not look at child pornography but “a page would be depicted with literally hundreds of thumbnails. Okay, and but the time they all get downloaded, whether I walk away as such, it does not necessarily mean that I’ve moved and viewed them.”[17] He later said: “So as I’ve said, I’ve tens of thousands of images – like – I said – at that time I’ve surfed quite a bit of adult material.”[18]
[17] Cross-examination of the father by Mr Gill, 14/11/08, transcript page 41
[18] Cross-examination of the father by Mr Gill, 14/11/08, transcript page 58
This activity is corroborated by a review of exhibit M3 which is the TPG record of some of his activity. I have examined, at some length that record of websites accessed. It is of some interest because, over the short period that was able to be recorded being 1 May 2005 – 3 July 2005 it showed the amount of time spent looking at or for pornography, in some cases it was hours per day. This is consistent with his own admission about the matter.
Moreover, when he was cross-examined about the nature of the sights that he observed, although he was somewhat disparaging or Mr I’s investigations, in particular in his early affidavit, he suggested that he was not even in the country when the observations referred to had happened. The father conceded that there were a number of websites he visited. It is clear he had an interest in Lolita sights and I have already made comment about that above. He was also interested in viewing erotic pregnant women and claimed that he was primarily interested in the actions of youngish girls about the age of 18 or 19 engaging in consensual sex.
I repeat, I find it impossible to accept the proposition that if the father were deliberately searching sights which purported to represent under-age girls engaging in sex, that it was not an area in which he was interested and one which has caused him either obsession, compulsion or stimulation - or all of these.
I find it unnecessary to determine whether or not the father actively sought out child pornography. I find as I suggested above that I cannot determine whether or not he deliberately tried to remove from the computer any evidence of his involvement with pornography. I find however that the father either deliberately sought out sites in which very young (below legal age) girls were involved with sex or alternatively placed himself in a position where it was likely that such images would be displayed to him or sent to his computer.

Future implications

In the light of the last finding, it seems to me, in conjunction with the earlier evidence referred to above, that the father does or did have at the relevant times an interest in very young girls in a sexual manner and I have no convincing evidence that would lead me to conclude that this would not remain some sort of interest on his part into the future.
I am partly led to that conclusion by the fact that he denies any such interest while all his actions support it. While the past is the past and does not necessarily determine what is in the future, it does represent the best opportunity for determining what is likely to happen in the future. The revealing self-accusatory debate going on in the head of the father, referred to by him, illustrates that in the past he has been unable to resist his impulses and compulsions.
The evidence I have to suggest that that the father might not be able to handle the situation in the future is an assurance from him in cross-examination that his paraphilia currently causes him no trouble.[19] I repeat this part of his evidence:
[19] Cross-examination of the father by Mr Gill, 13/11/08, transcript page 20
Mr Gill: The paraphilia – that it’s dealt with, that it’s in the past, it’s not going to be a problem for you in the future?
[The father]: No, because, like alcoholism, there’s – it’s not a cure, it’s – it’s the processes that you put in place to – to manage it.
Mr Gill: Right. So your position is that this paraphilia is something that you’ll need to manage for the rest of your life?
[The father]: As a layperson’s point of view, at this point in – in my time, I have – I don’t even think about it.
Mr Gill: You don’t think about the paraphilia?
[The father]: Not at all.
Mr Gill: So you don’t try and manage it in any way?
[The father]: There’s no need to manage it because there’s nothing occurring in my mind, my though processes, as such. You have no idea how much relief that it is that you don’t have to struggle every day because, when you see a light on, that – your mind is – is playing with you, “Go on and go and have a look.” No, to me, I don’t even get these – any form of thoughts of desires to do anything that is inappropriate.
Mr Gill: So It’s just simply not an issue for you at the moment?
[The father]: Not at all.

Assessment of expert evidence

In addition to the father’s assertion about his current condition, Dr F has engaged in over 200 hours of therapy or thereabouts with the father and one would think that he probably knows him better than anyone else. The father also engaged his current girlfriend Ms G in this therapy as well and that is a matter to his credit. Dr F gave clear and unqualified evidence that “it is possible to say with confidence that, within the reality of human concupiscence, [the father] is free from the likelihood to engage in his previous dysfunctional and unacceptable behaviours. Depth-analysis shows that [the father] has no sexual interest in minors of either gender. He therefore poses no threat of sexual misbehaviour with his own children or other minors.”[20]
[20] Report of Dr F dated 30 July 2008, annexure B to his affidavit sworn 30 July 2008 at page 4 of the report
However, I was unsatisfied by this evidence from Dr F. He appeared, as may well be appropriate for a therapist, to have concentrated almost exclusively on the father and his mental well-being to the exclusion of those who might have been and who might be affected by his conduct in the past and in the future respectively. I have discussed above Dr F’s evidence about the father’s staring through the window to see the young girl undressing and the reason and background to it. While acknowledging Dr F’s expertise, I find this explanation on his part unbelievable and out of keeping with the rest of the evidence. It may be that he did not have in front of him all of the information that I have and the other findings that I have made may have caused him to take a different view about this conduct. Nevertheless, I found his evidence, particularly about those sorts of matters, unconvincing.

On the other hand, although the father was self-represented, he exposed Ms H to quite extensive cross-examination, but did not, in my opinion, in any way diminish the credibility of her evidence. I found her evidence clear, concise and well-informed. Her experience in the particular area in which she was asked to given an opinion exceeded that of any of the other experts called, given that she has practiced exclusively in the field of sexual offending behaviour for the last 11 years, is at supervisor level as a member of the Australian Association for the treatment of Sexual Abusers and is a clinical member in the New South Wales Child Sex Offender Counsellor Accreditation Scheme. I put more faith in her evidence than I do in the evidence of Dr M, Dr O or Dr F, who have generalised psychology practices.
In this regard, I do not call into question for one moment the professional competence of any of those doctors. I am concerned however, that as the cross-examination of Dr M and Dr O revealed, there were matters which either they had not consciously taken into account or were unaware of when they wrote their respective reports. In particular, Dr O and Dr M were prepared to change their opinions when pressed about those matters by Counsel for both the mother and the Independent Children’s Lawyer.
In particular, both Dr O and Dr M were under the impression that he had only exposed himself once to the girls next door; that the age of the girls was 14; that he had not held his penis and waved it around on at least once occasion; that the watching of Y occurred over a period of a few weeks. When it was put to them that in fact the father had exposed himself between three and 12 times, that the oldest girl was between 12 and 14; that two of the other girls were two and four years younger than her, making them either 8 and 10 or up to 10 and 12; that he did in fact hold his penis and that he had watched for Y over a 12- 18 month period their opinion was that these facts are of significance.[21]
[21] Evidence of Dr O and Dr M given in cross-examination by Mr Gill, 14/11/08 at approximately 3:06pm – 3:15pm
Dr O indicated that the frequency of the act (in this case the exposure) is an issue in assessing sexual risk and that it increases the estimate of overall risk of sexual violence. She commented that this would increase the risk to be “higher than we were led to believe.”
Both Dr O and Dr M indicated that their opinions as to the risk the father posed were reliant on the father’s not expressing an interest in pre-pubescent girls. The significance of the ages of the girls was explained by Dr O as being that they were more likely to be pre-pubescent and appear as children.
Both Dr O and Dr M agreed that the significance of the father’s holding his penis while exposing himself was that it indicated that the was sexually stimulated by the activity.
Dr M commented that the length of the period over which he was watching Y suggested that it was an entrenched problem.
Both agreed that they would change their opinion as to the risk the father posed and would change their recommendation (which was previously that he have full and unfettered time with his children and that there would be no concern about him spending overnight time with the children).
Interestingly, Dr O commented that the risk of sexual offence is increased where there is a larger range of types of offence or types of victim or ages of victim.
I accept that the father was deeply disappointed about the fact that Dr M had apparently not recalled that he had available to him at the time he gave his original opinion some of the information that he now appeared to regard as significant and which caused him at least in part to change his opinion under cross-examination. Dr M seemed to assert that this was not the case. I think on balance it is likely that the information was there but was clearly not to the forefront of Dr M’s or Dr O’s minds respectively when they came to the conclusions that they did. It was to their credit that they were prepared to adjust their opinions in the light of the additional information put to them in cross-examination. In the end, their evidence was more corroborative of Ms H’s than of anything else.

Risk to the children & meaningful relationships – primary considerations

What conclusions therefore should I draw?
The evidence of Ms H is the most telling and the most concerning. As the matters that I have examined at some length above were outlined to her, Dr H affirmed in her view that there was a risk of some physical interference by the father with his own children (I suppose in reality his daughter).
As Ms H somewhat ruefully expressed it, we would not know whether that was true until it happened. However, it is within my power to make orders that will prevent the possibility of its happening.
In summary, I accept the evidence of Ms H that the father’s course of conduct illustrates that there is a real risk that something might happen in the future. Everyone, including the father I believe, would hope that this would not be so. However, the father’s inability in the past to control his impulses together with the fact that even after 200 hours or thereabouts, of therapy, there are still significant gaps in his ability to comprehend the nature and consequences of his actions lead me to conclude that I must take some step to ensure that the children are protected from the father.
To avoid any measure of doubt, I am satisfied about the potential risk to the children on the balance of probabilities in accordance with the Evidence Act 1995 but also on the basis of the gravity of the situation and the extent of conviction that I must feel which is prescribed in Briginshaw v. Briginshaw.[22]
[22] (1938) 60 CLR 366
What sort of meaningful relationship can the children therefore have with their father, if any? The father during the course of the proceedings abandoned his application that the children live primarily with him. He also, in my opinion to some extent courageously and appropriately, conceded the children would continue to live with their mother in Western Australia. These factors seriously inhibit the capacity of the father to spend anything more than occasional time with the children. This in itself reduces the opportunity for the children to benefit from the relationship. The ambit of the relationship itself is circumscribed further by the need for me to impose orders which will protect the children from harm in accordance with the analysis I have just undertaken of the father’s past actions.
The Act mandates that I consider “the benefit to the child of having a meaningful relationship with both of the child's parents.” This requires me to assess whether there is a benefit to the children at all. I come to this in my consideration of the nature of the children’s relationship with the father, below.
The need to protect the children would suggest at least in part that if the father is to spend time with the children, he should do so in circumstances where he is supervised. The father, in some of his orders that he sought, accepted that this might be a possibility at least in the short term. He seeks, however, as would be reasonable in many cases, for his partner or his parents or siblings to be the supervisor(s) of such time with the children.
I do not accept that any of these options is appropriate or practicable in the context of this matter. One would hope because of their closeness to him that the father’s parents and his partner would be supportive of him and seek to place upon his actions the best possible construction consistent with his “innocence”. In saying that I do not think they would be appropriate supervisors I am not in any way impugning the integrity of any of them. Their support for the father, who in fighting against his infliction needs all the support he can get, must be a source of great comfort to him and is indicative of a high level of familial commitment on their part. The father had his sister and at least one of his brothers in court with him for the whole of the last part of the proceedings and they have heard the evidence.
It seems clear again however, that the full story has not been told to his family previously. It is difficult to believe that even if I were now to order that a copy of my judgment be given to any potential supervisor and that that person acknowledge before any supervision began that they accepted my findings and would take action accordingly if the need arose, that the father’s family or his partner could genuinely make such a commitment. Their loyalty is such that I believe that they would not be able to accept the findings that I have made and in that context it is not fair to them, to the father or to the children to have them placed in the position of being supervisors.
In those circumstances, it seems to me that the only possible order I could make in this regard is an order that the father should spend time with the children under a professional supervisor, as has been the case for his time with them since 2005.

Additional considerations

The children are not of an age where their particular views about whether they want to spend time with their father or not could be significantly taken into account.
In regard to the nature of the children’s relationship with their mother, there is no doubt that they are close to her and that she has adequately and properly cared for them. The children’s relationship with their father is from all reports (including those of the professional supervisors) a warm and friendly one when they are together. This is probably not entirely surprising given that on the occasions that they meet are relatively rare and that accordingly they should be good fun times for the children. It is to the father’s credit that given the time between these meetings, the children still exhibit familiarity and warmth towards him. I find there is a relationship there which needs to be and should be encouraged to the extent that it is consistent with the children’s safety in the future. This is qualified by the fact that the Act refers to the benefit to the children in having a meaningful relationship with their, in this case, father. It is necessary for the Court to give careful consideration to the financial, physical and other effects associated with making some provision to allow that to occur.
The children have spent some limited time with their extended family on the father’s side. If supervised time occurs in Melbourne, this will allow that relationship to continue.
The father has not sought to inhibit the children’s relationship with the mother and in the end, appropriately conceded that she would remain their primary carer.
I am satisfied that the mother has not felt able or committed to trying to facilitate a proper relationship between the children and their father. The mother had a somewhat disconcerting habit in the witness box of smiling somewhat inappropriately and at inappropriate times. I think this was just a mannerism and I found no reason to doubt her evidence generally. I am satisfied however, that she certainly bears very little affection towards the father and does not trust him. In those circumstances, it would have been hard for her to encourage the children to have a loving and meaningful relationship with their father and I find that she has not necessarily engaged in that as well as she might. The father filed a contravention application against the mother in October of this year. That application was withdrawn on the first day of the hearing in November. I do not accept however, that she has deliberately tried to turn the children against the father.
The change that would occur for the children if I make orders for supervised time with their father is minimal. If the children were to see their father only in the limited circumstances of supervision, they will not be separated from their mother in a way that will generate any anxiety for them. This is particularly so as it is the form of time they have spent with their father for the majority of their lives. I accept that earlier when the children were much younger and the mother was working and the parties were together, the father spent more time with them than the mother did at least in some periods. That has not been the recent arrangement.
There is significant practical difficulty in making orders for supervised time in either Perth or Melbourne or Canberra. This places an enormous financial burden on both of the parties, or on whoever has to bear the cost of the supervision. It also means that there are serious questions about whether it would be appropriate for that time to occur in Western Australia, in Melbourne (close to the father’s family) or in Canberra. I propose to accept the father’s submissions about the need for the mother to be directed to leave the father as part of her familial travel entitlements with her employer. That reduces but does not eliminate the cost of travel. In the past, the cost of travel has come out of the joint funds of the parties as a result of the sale of assets. After the property division has been accomplished, this is not going to be possible and it will fall to either or both of the parties to contribute to the cost of supervision and travel. This may operate to restrict, if not prohibit, the amount of time that the father can spend with the children even on the limited basis proposed.
The capacity of the mother to provide for the children’s needs is not in issue. The capacity of the father is potentially inhibited by the risk he may pose to the children - a risk that will be mitigated by supervision.
I accept that the father wants to give the children an opportunity to participate in his European heritage and this will be limited by this form of supervision in the form of orders that I propose to make. Nevertheless, this is not, in my opinion, an imperative in the overall well-being of the children although it is a desirable side-issue to the father’s involvement with the children and to the involvement of his family. There are no other issues of maturity, sex, lifestyle and background that I need to consider.
I have commented to some extent in the past about the attitude of each of the parents towards his or her responsibility as a parent and to developing a relationship with the other parent.
While I am happy to find that the father has a genuine concern and commitment to trying to maintain a relationship with his children and to give them the benefits of both his and his family’s background and experiences, the father has to some extent been unrealistic in some of his approaches to his parental responsibilities. For example, notwithstanding his greater income over a long time, he has been content to allow the joint assets of the parties to diminish in providing funds for the time that he spends with the children.
This is understandable in a way because he would see the accusations against him as being ill-considered and wrong in which case he may well consider that this was the least that anyone can do in circumstances where he should not have to have borne the expense personally. For reasons I have set out above I do not agree with his analysis. On the basis that my findings are correct, then he either knew or ought to have known that there were justified reasons why there should be some restriction of his time with the children. Accordingly, as these circumstances were primarily brought about by him it would have been appropriate as the higher earner of the two parents that he should have made a larger contribution.
I do not believe there are any issues relating to family violence which substantially affect the decision that I am making.
These parties need to have relief from further proceedings before this Court. The orders that I make will apply - so far as they can - permanently. This does not mean that there cannot be changes in the future if the parties agree or the circumstances of the parties change. Nevertheless, so far as it is possible, the parties should not have to return to the Court if that can be avoided. The children have not been seriously involved in the dispute between their parents but may become so if litigation between the parents continues.
I have considered the parents fulfilment of parental responsibilities above in relation to the nature of the children’s relationship with the parents, the ability to facilitate the other parent’s involvement, the attitudes to parenthood and the capacity of the parents.

Conclusion

This is a most troubling matter and I have endeavoured to ensure that the children are protected and benefit from the love of their parents. I am hopeful that the parents will accept my decision and abide by it for the sake of their children, save for the need to alter the arrangements if the needs of the children change.
The father sought orders in regard to the non-face-to-face communication he might have with the children. It seems to me to be appropriate that he be able to communicate by letter and, after E turns 10 years old, by e-mail. To some extent this is an arbitrary age but it will ensure that the children are old enough to understand his communications with them and to choose whether or not to receive the communications.
In regard to telephone call, it is again difficulty to make a determination about the extent to which telephone communication would be beneficial to the children. On balance, it seems they may derive a benefit from some verbal communication with the father. This should occur once per week, preferably on a Sunday evening and the call be confined to 10 minutes for each child. Appreciating how emotional the father is and probably will be, I believe it appropriate that the mother be able to monitor the calls (but not otherwise interfere), for one year after the date of these orders.
The father should be allowed to give and the mother should facilitate the children’s receiving gifts at Christmas and on their birthdays. I also am of the opinion that it will facilitate the process of ‘recognition’ if the children are able to send the father a card and gift on his birthday and at Christmas.

Property

Evidence about most of the property was somewhat vague and not thoroughly thought through in the proceedings before me. This was principally because the parties concentrated on issues relating to the children.
The pool of property consists primarily of the proceeds of the sale of the former matrimonial home in the Australian Capital Territory, shares, superannuation and some smaller amounts comprised of the contents of joint bank account and the proceeds of sale of two cars.
The assets in the parties’ joint names are the proceeds of the matrimonial home ($666,848.04 after costs of sale and discharge of mortgage and including the partial distribution), joint shares in Century Australia ($764.80 as quantified by the wife, $1,137.64 as quantified by the husband) and money in the Maxi-direct account ($3,296.41 as quantified by the wife, $14,039 as quantified by the husband). Other assets are the husband’s Magna ($1,650), the proceeds of sale of the wife’s Festiva ($1,900) and the husband notes money in the CommBank Investment Account ($12,453.33). I accept the husband’s value of the Maxi-direct account and the share value of the Century Australia shares.
The wife submitted that I add-back the following: proceeds of sale of joint shares ($50,304.71), funds retained by the husband after separation in the Westpac cash management account ($20,838) and costs of professional supervision.
The shares belonging to each of the parties amount to $66,305.27 for the wife (or $96,698.92 as quantified by the husband) and $4,838 for the husband (or $4,735.47 as quantified by the wife). In the end I have ordered that each party retain the shares in their name and I accept the value given by each of them in relation to their own shares.

The superannuation assets of the parties are in the amounts of $63,260.02 for the wife and $431,222 for the husband (comprised of $343,338 DFRDB, $37,497 Colonial First State and $50,387 PSS).
The property pool is more complicated by additional factors.
The first is that the parties each brought assets into the marriage. The wife had a home at M, a half interest in a home at O and bought shares for approximately $18,000. The husband had a property at B and a substantial superannuation interest from the Defence Force. During the course of the marriage, the properties were sold and used for joint purposes such as acquiring the matrimonial home and some shares.
The second issue is that there has been a partial distribution of the proceeds from the sale of the former matrimonial home in accordance with consent orders made on 30 September 2008. On the wife’s behalf, she has applied $228,735 for legal fees. On the husband’s behalf, he has applied $113,000 for repayment of a debt and for legal fees.
The third issue is how I characterise the costs of supervision (and associated costs) since professional supervision was ordered in 2006. The supervision was paid for out of the joint funds. The wife sought that I adjust the property division such that the husband is solely responsible for these costs.
The fourth issue is payment of the computer experts’ fees (Mr I, costs to be quantified and Mr J, $9,181.51).
The fifth issue is the payment of rates on settlement of the former matrimonial home.
The sixth issue is that the husband continued to live in the former matrimonial home after separation while the mortgage was being repaid out of joint funds. During this time the wife lived with her brother in Perth and recently rented a property.
Finally, the issue of legal costs was raised by the wife in her minute of orders sought. She seeks that the husband pay her costs of and incidental to these proceedings.

Orders sought

The wife sought that there be a division of 75/25 in her favour. As part of the husband’s 25%, she sought that this include the costs of supervision, the computer experts, 75% of the outstanding rates from the house at time of settlement and her legal costs. She also sought a specific order that she retain all shares in her name and the proceeds of sale of the Festiva.
The husband sought a division of 60/40 in the wife’s favour. He sought that all joint shares be sold, capital gains tax be quantified and paid out of the proceeds, 40% of the wife’s shares in Flight Centre be transferred to him and the wife’s engagement ring be given to him. He otherwise sought that he retain money standing to his credit in any bank account, that he be reimbursed for the costs of supervision and that he be indemnified against the wife for her costs.
The parties both sought that each retain any items in their possession, superannuation and insurance policies and that the husband retain the Mitsubishi and shares in his name.

Add backs

I am prepared to add-back the funds removed by the husband from the Westpac account at separation, in an amount of $20,838.

Costs of Supervision

There are in effect two competing arguments about the cost of supervision. One is that the wife’s determination to move to Western Australia and her abiding concerns about the husband and her unwillingness to permit others than professional supervisors to supervise the children while they are with the father has meant that she should either bear or contribute to the cost of supervision. I should add that the consequences of the mother’s departure to Western Australia have in part been off set by the preferential air fares that she obtains and is able to obtain for her family including the father.
The other argument is that it was the father’s conduct which brought about the need for supervision and accordingly at the very least, he should pay for it. In this regard, it should be noted that the precipitating event for the separation of the parties was the discovery by the mother of the father’s acts of exposure to the neighbour’s children.
Each of those arguments has some force.
In my opinion, the cost of supervision to date should be treated on the basis that they should be borne as to one half by the mother and one half by the father and that the money expended on supervision from joint funds should be treated as being allocated between them in that way. Although I do not have a precise figure for how much has been so expended, in view of that determination I would simply exclude the cost of supervision from the pool.

Legal costs

Each of the parties has applied for some part of his or her costs to be paid by the other party. It is more appropriate that I receive further submissions about this issue in due course however, it would probably be appropriate for me to outline some general and preliminary thoughts on my part without in any way making any final determination.
Under the Family Law Act (Section 117) each of the parties is obliged ordinarily to bear his or her own costs. The Act however, provides that in an appropriate case the Court may order that some or all of the costs of one party should be paid by the other.
In considering what add backs I am to make, it would be inappropriate in my opinion to confuse the matter by making a pre-emptive determination about costs. Each of the sums distributed as referred to above, to the parties for legal fees or for debt ($228,735 for the wife, $113,000 for the husband) should be added back into the pool. The question of costs and who pays them should be the subject of separate submissions.
Into the same category fall the costs relating to the computer experts. I assume without knowing necessarily, that the $113, 000 paid to the father has included payment for his engagement of an expert at an earlier point in the proceedings. The question as is illustrated above is whether the wife’s experts’ fees should be met by the husband in whole or in part. It seems to me that this falls within the general question of legal fees and should be the subject of a separate application.
Each of the parties has substantial debts for costs and while I am far from coming to any final conclusion about issues relating to costs, it seems likely that each of the parties will still have some debt at the end of the proceedings in relation to that. The wife’s is likely to be larger than the husband’s simply because she engaged lawyers on the way through.
I digress to comment that in this regard although the husband complained regularly that he was self-represented, he persisted in acting for himself and did so generally speaking, creditably. Of course he lacked some of the skills of an experienced advocate but generally speaking he conveyed what he wanted to the Court. Nevertheless, his acting for himself removed the possibility of an independent and objective adviser providing the husband with information and advice which may have shortened the proceedings. For her part, the wife could not have made do without appropriate legal counsel. The issues particularly relating to the husband’s activities were extraordinarily complicated and required significant forensic skills to tease them out. These skills were clearly present as the evidence unfolded before the court and as a consequence I made the findings that I did on the evidence as it was presented.
It could not be said that the husband was wholly unsuccessful in these proceedings given that while he did not get what he wanted so far as the children are concerned, I still made some provision for him to see the children. This was not the mother’s primary position although that position did change from time to time - as did the father’s.
On the question of property, the wife did not succeed to the extent that she had originally sought but there would be no reason on the evidence and because of the limited time devoted to it where I would make any order for costs specifically relevant to the property issues.
However, as I have indicated I have not made any final determination and I will listen to the submissions of the parties.

The husband’s occupation of the former family home after separation

The husband essentially lived rent free in the former family home after separation. The mortgage was either paid out of the pre-paid portion of the mortgage contributions previously made by the parties which should be regarded as joint contributions or was paid out of the joint funds of the parties. The rates in the end that were left outstanding by the husband (the bulk of them) were paid from the proceeds of sale and hence equally paid by the parties. In circumstances where one party lives in the former family house at the expense of both parties and the other party lives outside of the house at his or her own expense, it would be appropriate to make some form of adjustment, although it may be appropriate to do so under Section 75(2) rather than on the basis of contributions or a determination of the property pool. Sometimes the benefit is difficult if not impossible to quantify.
Initially, when she went to Perth, the wife stayed with her brother and while the evidence is somewhat confusing, it appears at least for some of the time she stayed rent free. This would suggest that it was appropriate that the joint funds of the parties should have been involved in the preservation of the matrimonial asset (the home) even if the husband derived auxiliary benefits there from. However, subsequently, the wife did pay rent and the husband accordingly was receiving a benefit from the contributions of both that he would not otherwise have received or been entitled to. Taking all in all, I believe that the most appropriate way of dealing with this situation is to regard the differential and the additional benefit obtained by the husband through the contributions of the wife as creating an additional contribution on her part. In the overall scheme of things, it is not a large contribution but nevertheless, it ought to be acknowledged. Accordingly there will be no add back but there will be an additional factor added to the wife’s side of the ledger for contribution.

Contributions

The initial contributions of the parties have generally been used for acquisition of matrimonial assets such as the purchase of the former matrimonial home, shares, furniture and motor vehicles. They have both enjoyed the benefit of those assets during the marriage. The wife’s properties were sold in 2000 for approximately $136,000. It appears that her initial contribution was larger than the husband’s but over the course of the seven year marriage the husband also applied his superannuation lump sum (as well as his higher income) to reducing the mortgage.
It is appropriate to acknowledge the husband’s superannuation entitlements were accumulated in part before the parties were together and given the size of his superannuation entitlement as it presently stands and the apparent agreement of the parties that each of them should retain his or her own superannuation without there being a splitting order, my determination of contributions should take this factor into account. The application by the husband during the course of the marriage of some of his superannuation towards joint efforts also goes someway to offsetting the wife’s initial greater contributions.
The parties reasonably mutually contributed to the care of the children during the course of the marriage. At least during the early part of the marriage the husband may have fulfilled for short times at least a larger role than the wife. However, that has been more than overtaken and offset by the wife’s additional and continuing contributions to the care of the children after separation and into the future. In this she has not had the physical assistance of the husband. He would argue with some cause that this was not for any want of trying on his part but nevertheless as a fact it is true that she has borne the major burden of caring for the children and will do so into the future as a result of the orders that I make about the children. This is a major contribution on her part and one which cannot be downgraded in any way.
The factors I have to balance therefore are the contributions during the course of the marriage which I regard for all practicable purposes as being equal, the contributions made by the wife to the husband’s accommodation subsequent to the parties’ separation and the contributions made by the wife in addition as home maker and parent particularly since separation and into the future. The combination of these factors means in my opinion, on the question of contributions that I should divide the whole of the property of the parties in a ratio of 58% to 42%.

Section 75(2) factors

I make the following findings with regard to s 75(2) factors.
Age is not a significant factor for the parties. The father will perhaps continue to need treatment but otherwise appears to be in good health.
The husband earns and will continue to earn more than the wife, even allowing for the fact that she might be able to earn more money than she presently does once the children get a little older and she can return to work full time. The husband has qualifications and skills that will allow him to earn more money than the wife.
The wife will have the care of the children although I do not double-count that, given that I have already counted it as part of the contribution referred to above. It does, however, inhibit her ability to develop her own career and to that extent I take it into account under this heading.
Finally I note that the orders that I make about the children will have the effect that the husband will be obliged to pay for one set of supervision a year and his airfares in relation thereto. The mother will be obliged to pay for other expenses relating to that and therefore these factors in my opinion, balance out, even though they are substantially brought about by the conduct of the husband.
No other factor in section 75(2) would affect my decision.
Overall, it seems appropriate that I should make an adjustment in favour of the mother under the Section 75(2) factors and that she should accordingly have 62% of the pool of property (including the jointly acquired superannuation).

Superannuation

Treating the superannuation separately, it seems to me that the husband should receive credit for the contributions made before the parties were together. He joined the Defence Force in 1980 and the parties married in 1997, meaning there was a period of 17 years over which he accrued this superannuation. Therefore the superannuation that has accumulated during the time the parties were together is the superannuation acquired over 7 years. I will add the 4 post-separation years as she was still contributing in the sense that she was caring for the children. I therefore make a division of the superannuation for 11 years out of 28 years he has owned superannuation. I will divide the wife’s superannuation for the years the parties were married and the post-separation years. Therefore each of them should share as to 62% to the wife and 38% to the husband of that portion acquired after the marriage, in accordance with my finding above as to contributions and s 75(2) factors. Superannuation that is (notionally) referable to the accrual before the parties were together should remain with the husband. I do not propose to make a splitting order to achieve this division. As such, there will be an additional figure that the wife will receive out of the pool to credit her for this joint superannuation. My calculations are set out in the table appearing as an endnote. I have been inhibited in my ability to deal with property issues by the lack of attention paid to them by the parties during the course of the hearing. In the end I have done the best I could with the information and evidence available.

Just and equitable

In the circumstances of this case and particularly in regard to the mother’s past and future role as the children’s primary carer, I am satisfied that the division I have suggested is just and equitable.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate:

Date:

[3] Cross-examination of the father by Mr Gill, 14/11/08, transcript page 63, 65, 66, 68.

[2008] FamCA 1113

22 December 2008

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