Fan and Napoli
[2011] FMCAfam 761
•6 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAN & NAPOLI | [2011] FMCAfam 761 |
| FAMILY LAW – Parenting – child pornography – paraphilia – cyber sex – internet addiction – COPINE scale – whether unacceptable risk of abuse – no contact. |
| Family Law Act 1975, ss.60B(1)(a) and (b), 60CA, 60CC, 60D, 61DA, 64(1)(a), 65DAA(1)(b) and (2)(d), 69ZT(3), 69ZV, 100A, 121 Evidence Act 1995 (Cth), s.140 Federal Magistrates Court Act 1999, s.61 Law Reform Act 1995 |
| A. v. A. (1976) V.R. 298 B and B [Access] FLC 91-758 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 Brown and Pedersen (1992) FLC ¶92-271 cf. J. v. Lieschke (1987) 162 C.L.R. 447 G. (a minor) (1987) 1 W.L.R. 1461 Goode & Goode (2006) FLC 93-286 Leveque v. Leveque (1983) 54 B.C.L.R. 164 M and M (1987) FLC ¶91-830 McKee v. McKee (1951) A.C. 352 MRR v GR [2010] HCA 4 N and S and the Separate Representative (1996) FLC 92-655 Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192 Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318 S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V and V [2004] FamCA 1081 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 WK v SR (1997) FLC 92-787 |
| Applicant: | MS FAN |
| Respondent: | MR NAPOLI |
| File Number: | WOC 1156 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 10-13 May 2011, 21-22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | DGB Lawyers |
| Solicitor for the Respondent: | Mr Ulbrick, G & D Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Macpherson |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
THE COURT ORDERS THAT:
The Mother has sole parental responsibility for the child, [X], born [in] 2006.
The child live with the Mother
The Mother is restrained from making critical, negative or derogatory remarks about the Father or members of his family in the presence or within hearing of the child and the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of the Father’s family in the presence or within hearing of the child.
The Mother is to provide the necessary authorities to the Principal of any school attended by the child to ensure that the school forwards to the Father copies of the child’s school reports as they fall due.
The Mother is to keep the Father advised of important medical issues and emergencies in relation to the child.
IT IS NOTED that publication of this judgment under the pseudonym Fan & Napoli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 1156 of 2008
| MS FAN |
Applicant
And
| MR NAPOLI |
Respondent
REASONS FOR JUDGMENT
Introduction
During cross-examination the father explained to one me that he lived a “second life” in cyber space. It was an online fantasy life in which he engaged in what he called ‘cyber-sex’, often assuming the persona of a woman. He became addicted to adult pornography and on-line chat rooms of a sexual nature. The father says that one day he clicked on a web link contained in an email sent to him expecting to see adult pornography. Instead there was child pornography. This case is about the consequences of these actions.
[X], known as [X], is 5 years old. Her mother, a 45 year old [occupation omitted], lives in the [omitted] region of NSW, is the Applicant in this case. [X]’s father, a 46 year old [occupation omitted] living in Sydney, is the Respondent. [X] lives with her mother and currently neither spends time with her father nor communicates with him.
This case is about whether, and if so to what extent, [X] should spend time and communicate with her father. The mother’s proposal, consistently held throughout this case, is that she should have sole parental responsibility, that [X] should live with her, and there be no contact or communication. The father’s proposal is contained in his Amended Response, filed 28 April 2011. The precise terms of this are reproduced in the first schedule to these reasons. In short he proposes equal shared parental responsibility, that [X] live with the mother, and that she spend time with her father initially on a supervised basis for gradually increasing periods of time, and eventually becoming unsupervised at age 9.
The Independent Children’s Lawyer’s proposal was, quite appropriately in this case, formulated at the conclusion of the evidence. The ICL proposed sole parental responsibility to the mother, that [X] live with her mother, and have supervised time with her father for 4 hours 6 times yearly, such supervision to occur at a supervised contact centre.
This is a complex case with substantial lay, expert and documentary evidence. Each parent and the Independent Children’s Lawyer was very capably represented. This case is ultimately a risk assessment exercise. Like many cases where it is alleged that a child is at risk from a parent, there are multiple layers of ambiguity in many aspects of the evidence. It becomes important, therefore, to carefully analyse all of the relevant evidence and to consider how this evidence all fits together.
The mother’s case is that the father is a paedophile and that the risk to [X], even from supervised contact, is that she will be groomed by her father. Her case is that the father’s possession of child pornography was not inadvertent, and that he has greatly minimised before the Court the nature and extent of his paraphilia (which Dr Q explained was relying on other than the normal range of sexual stimuli, and which included paedophilic fantasies and paedophilia).
The father’s case is that even though he was addicted to adult pornography and to chat sites of a sexual nature on the internet, the receipt by him of child pornography was inadvertent, and the 518 images of child pornography found on his computer was not placed there by any deliberate action he took. The father appreciates the impacts of his past addiction on the mother and [X], but considers himself rehabilitated, and strongly believes he presents no danger to [X]. He longs for the restoration of the previously good relationship he believes he had with [X].
The ICL’s case is that there is an unacceptable risk of abuse to [X] if she has unsupervised contact with her father. The mother is also highly anxious with the risk that [X] will be exposed to this. In these circumstances [X]’s relationship with her father can be supported by supervised contact several times a year.
The parents married in September 2005 and separated in November 2008. Quite apart from the event described in these reasons, the marriage appears to have been a turbulent one. The mother has remarried, and her husband gave evidence. The father currently lives with his parents. Proceedings commenced in this Court in early 2009. There ensued a series of interim orders including for supervised time. That order was ultimately suspended and the father has had no contact with [X] for over a year now.
[X] was represented by her ICL, Ms Temelkovska. Associate Professor Q (henceforth called Dr Q or the expert) was appointed by the Court as the expert in this case. The father was charged but not convicted of possessing child pornography.
I propose to set out what I understand to be the applicable law relating to unacceptable risk of abuse, and as to what is in the best interests of a child. I will then examine the evidence in some detail.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras.18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Evidence about images found on the father’s computer
There is no dispute between the parties that 518 images were found on the father’s computer which are classified as child pornography. Those images were not in evidence, but various schedules describing and classifying the images were in evidence. The 518 images are classified according to a scale known as the COPINE scale. Exhibit A1 explains what this is, and is reproduced below
| Level | Name | Description of picture qualities |
| 1 | Indicative | Non-Erotic and non-sexualised pictures showing children in their underwear, swimming costumes, etc, from either commercial sources or family albums; pictures of children playing in normal settings, in which the context organisation of pictures by the collector indicates inappropriateness |
| 2 | Nudist | Pictures of naked or semi-naked children in appropriate nudist settings and from legitimate sources |
| 3 | Erotica | Surreptitiously taken photographs of children in play areas or other safe environments showing either underwear or varying degrees of nakedness |
| 4 | Posing | Deliberately posed pictures of children fully, partially clothed or naked (where the amount, context and organisation suggests sexual interest) |
| 5 | Erotic Posing | Deliberately posed pictures fully, partially clothed or naked in sexualised or provocative poses |
| 6 | Explicit Erotic Posing | Emphasising genital areas where the child is either naked or partially or fully clothed |
| 7 | Explicit Sexual Activity | Involves touching, mutual and self-masturbation, oral sex and intercourse by child, not involving an adult |
| 8 | Assault | Pictures of children being subject to sexual assault, involving digital touching, involving an adult |
| 9 | Gross Assault | Grossly obscene pictures of sexual assault, involving penetrative sex, masturbation or oral sex involving an adult |
| 10 | Sadistic/Bestiality | a. pictures showing child being tied, bound, beaten, whipped or otherwise subject to something that implies pain b. pictures where an animal is involved in some form of sexual behaviour with a child |
Exhibit A3 is a detailed schedule which identifies specific images and classifies them according to the COPINE Scale. It is common ground that the images were classified as follows:
Level 1
209
Level 2
1
Level 3
36
Level 4
51
Level 5
82
Level 6
54
Level 7
7
Level 8
5
Level 9
72
Level 10
1
Exhibit A3 also contains schedules entitled Dip Samples: I reproduce here only the first of the dip samples [omitted]
Documents produced by the Police, or related to their investigation and prosecution, indicate that apart from the material referred to above, there was a substantial quantity of adult pornography located on the father’s computer.
In the version of these reasons that will be published under a pseudonym pursuant to s.121(9)(g) of the Family Law Act 1975 I will forbid the publication of the schedule above setting out the Dip Samples of material found on the father’s computer. I am empowered to do so by s.61(a) of the Federal Magistrate’s Court Act 1999. I believe that it is necessary to forbid the publication of this evidence in order to prevent prejudice to the administration of justice. The schedule in question contains graphic descriptions of child pornography. There is no public interest in allowing the publication of this evidence. I am confident that the vast majority of people would find the descriptions revolting and offensive. If there is even the slightest possibility that the publication of graphic descriptions of child pornography would somehow legitimise it, or encourage its viewing, this would offend any notion of the proper administration of justice in Australia. Restriction on publication causes no prejudice to the parties in this case.
Police Prosecution of the Father
Exhibit A6 is the transcript of the proceedings before Local Court Magistrate [omitted] on 22 January 2010 being the last day of the criminal prosecution of the father. The father was charged with possession of child pornography. The learned Local Court Magistrate found that in accordance with the decision in Clark v R [2009] NSWCCA 112 the prosecution was unable to establish that the father “possessed” child pornography. This much was conceded by the prosecution. The charge was dismissed. A detailed understanding of why the charge was dismissed is not necessary in the present context. In short there appeared to have been deficiencies in the prosecution case. There was no evidence of where the deleted images came from. There was no evidence of who deleted them or when. There was no evidence that the father arranged the images on the computer. The transcript of the evidence does create the impression that further enquiries could have been undertaken in the police investigation but, for some reason, this did not take place. An impression is not a finding of fact. The fact is that the charges were dismissed.
The Mother’s Evidence
The mother’s written evidence was contained in her affidavit sworn
18 April 2011. She gives a history of an unstable relationship with the father from the very early stages of the relationship. She expressed concern about the amount of time he spent on his computer, emotional volatility, shoving, shouting and verbal abuse. Specifically in the context of the issues confronting the court she deposes to finding adult pornography on the father’s computer in the first year of their relationship, and the struggle he had with this. She describes a number of interactions the father had with [X] after she was born which she considered inappropriate. She deposes that in October 2008 she asked her brother Mr F to look at the father’s computer and to tell her what was there. She confronted the father about what was on his computer. She describes the father’s reaction and actions. At paragraph 34 she explains that Mr F told her, “[Ms Fan], it was child porn”. The mother then describes the father’s actions with his computer, and then leaving the home. At paragraph 39 she explains that she later insisted on Mr F showing her on his computer one of the internet sites which Mr F had indicated to her he had seen on the father’s computer. She describes the child pornographic images that she saw and states, “I vomited and have had regular nightmares about these images since”.
The mother was cross-examined by Mr Ulbrick representing the father, and Mr Macpherson, Counsel for the Independent Children’s Lawyer. This was a very difficult experience for the mother who was sometimes upset and emotional. She impressed me as an intelligent, articulate woman who carries a huge emotional burden on her shoulders arising out of the events described in her affidavit. There is no issue about whether I accept the mother’s evidence as genuine expressions of how she feels, or of what she saw. Whether or not I accept her interpretation of events and their consequences depends on other evidence. Her motivation was, and continues to be, to protect [X] from what the mother perceives to be the risk of harm arising out of any contact or communication with her father.
Her evidence in cross-examination leads me to conclude that the mother struggles to protect [X] from the mother’s feelings about the father, which are deeply negative. She unequivocally accepts whatever [X] says to her, or to her husband, about the father in these proceedings (e.g. that [X] is afraid of her father and does not want to see him), but is unable to accept that [X] would tell Dr Q that she is interested in maintaining contact with her father.
The mother is neither able to apprehend any benefit to [X] of having a relationship with her father, nor of any harm to her of being deprived of such a relationship. She is convinced that the risk of harm is greater than the benefit of a relationship. She has, I find, encouraged [X] to call her new husband “Dad”, and discouraged [X] from calling her father “Dad”. She has minimised the father’s involvement in [X]’s life before separation.
There is little if anything that can be done to reassure the mother. I had the following exchange with her:
I understand your evidence, and that is that you believe that [X] wouldn’t be safe if she spent time with her father. Do you understand that that’s what I have to decide in this case? I have to decide whether it’s safe, or not?
---Yes, I do.
What if I find after hearing all of the evidence that it is safe, how will that affect you?
---Badly.
Okay. Do you think that you will still be able to encourage [X] to spend time with her father?
---I think not, your Honour.
Even though I will have heard all the evidence, and still might come to the conclusion that there’s no reason to be concerned?
---I saw it, sir.
Is there anything that anybody can do that might make you more comfortable with the possibility of [X] having a relationship with her father, if I make a finding that it’s safe?
---I don’t think that face to face or phone contact I can tolerate, sir.
All right. You said that you don’t think that you can tolerate it, could [X] tolerate it?
---I fear not, your Honour.
Yes. What do you fear about [X] not being able to tolerate that time with her father?
---She has her own memories, her own fears, from abusive times previously. She is very close to me. And I try hard to not let her see distress, but she feels it.
Clearly she struggles to separate her own feelings from issues about [X].
The mother was at all times aware of the proposals advanced by both the father and the Independent Children’s Lawyer, especially as regards supervised contact. She was invited to explain what her concerns were when [X]’s contact was supervised:
If you were told that a contact centre had someone spend the entire duration together with [X] and her father, what would you think about that?... the safety concerns go beyond the physical, Mr Ulbrick. Emotional and psychological concerns are also there. So the answer is, I don’t think so. And that’s the best I can answer to your question.
So if we were to look at your concerns, what are your concerns about [X]’s safety with her father? Let’s look at the physical concerns?
---My concerns are that he was already grooming her, that he may continue to groom her. I know from my own work, which involves work with the [omitted] unit of the Church, that these things are ongoing: are not curable. I’m concerned that there may be physical harm to her. I’m afraid there would be psychological and emotional harm to her, through lack of appropriate boundaries, which we already saw with the DoCS trial.
… Grooming - grooming is developing a trust relationship that later on can be used to facilitate harm…
… what harm… Sexual harm, Mr Ulbrick. Psychological harm and physical harm: touching, fondling, sexual activity, etcetera.
… you suggesting that that would occur… Yes, I am.
… He can still build up a trust relationship with any kind of contact… Fortnightly contact is not limited. It is enough to build up a trust relationship.
… One thing I do know from my work with the Presbyterian Church, where I’m involved with the [omitted] unit, is that children are encouraged to keep secrets, because they love each other. So I’m not convinced that she would tell me things like that.
This passage makes a number of matters clear. The mother does not believe supervised contact will protect [X] from being groomed by her father, indeed from being inappropriately, and sexually, touched. The mother is clearly well-informed about matters of sexual abuse of children as a result of her employment. Being informed, of course, does not necessarily make one objective.
The mother was deeply concerned about a dress that the father purchased for [X] for her birthday last year. At the same time the father also purchased for [X] a handbag and a long-sleeved t-shirt. She was cross-examined about this.
And in relation to her birthday present, it was a dress?
--- Yes
And a handbag?
---Yes
…You thought it was inappropriate?
---Absolutely
…The dress is made of satin. It's halter neck and backless. It's sexualised. It's not appropriate for a five year old who normally wears cotton dresses with little round necks. It's a glamour - glamour outfit. It's not appropriate for her.
…grooming… apart from a sexualised satin halter neck, backless dress.
But isn't that just how you interpret this? Did [X] like the dress?
---It's not just how I interpret it. I would not buy that kind of dress for [X] [sic]; she's only five years old. Little girls - this is a part of an industry that over-sexualises little people. She wears little cotton dresses that cover her up. She doesn't need a V‑neck, sexy, backless, halter neck thing that will show her little breasts or whatever they're called at that age. It's not appropriate for her. I wouldn't buy it; no member of my family would buy it for her. It was not appropriate. The fact it came with a handbag, it was almost like, you know, you're going to put her in a beauty pageant somewhere, okay?
When Counsel for the Independent Children’s Lawyer cross-examined the mother on this issue the following exchange occurred:
Now, do you suggest that your former husband sent, via the independent children's lawyer, to [X], a dress that he must have known was deliberately seductive, if that's what you're suggesting?
---I actually think that it's his lack of awareness of it that's the problem.
All right, so you're saying it's not that he thinks that this is a form of grooming her but, rather, that he doesn't pay enough attention to the gifts that he gives or the way he behaves. Is that your - - -?
---I would like to think that it was ignorance.
And that he - because if it were that he was deliberately trying to groom [X] by sending her the dress or sending her a dress that was deliberately seductive, it would be a very stupid thing to do, wouldn't it, to send it via the independent children's lawyer. Do you agree?
--- Yes, it would, yes.
The mother had previously confirmed that the gift had been approved by the Independent Children’s Lawyer. Indeed the dress was brought to court and I inspected the same. It is a polyester halter neck dress but I find that it is not “a sexualised satin halter neck, backless dress”. Whether the mother has over-reacted to this incident is very much linked to whether the mother’s concerns about the father are reasonable. That depends on other evidence.
I have made a number of findings about the mother in this part of my reasons. In isolation these findings cannot be interpreted as findings about the considerations referred to in ss.60CC(2) and (3). That depends on other evidence.
The Father’s Evidence
The father’s written evidence is contained in his affidavit sworn 27 April 2011. Consistent with the mother, he described a troubled relationship almost from cohabitation, plagued by conflict much of which was related to his problematic internet use. In an email to the mother dated 2 November 2008 he describes the problem as an “addiction” though in an SMS message to the mother, just a few days earlier on 31 October 2008 he said “I’m not a porn addict”. The father complains of the mother’s aggressive behaviour towards him and of her control of his relationship with [X]. The father admits that he had a problem with mainstream adult legal pornography, which included photographs of naked women as well as some fantasy art. He admits the problems existed from the first years of their marriage.
The circumstances relating to the father having child pornography on this computer was the subject of intense scrutiny in cross-examination. It is an important issue in this case. I set out the father’s written evidence in this regard:
71. Some time around the end of September or the beginning of October 2008 my relationship with my wife began to sour again. I started to view legal adult pornography again. I created a hotmail email account so that people would be able to send me links to access free legal pornography.
72. Some time in October 2008 I received an email with several links to internet services were I believed that I would view adult pornography. I clicked on one of those links and a picture came up which I was shocked to see a child in a sexual manner. I instantly closed that browser but numerous other browsers continually popped up on my task bar. I frantically battled to close all these browsers but despite my efforts I was not fast enough. I could not really make out exactly what was in the pictures as they were very small and I was concentrating on getting rid of them.
73. As I was not coping and I wanted this to stop I turned off my computer and did a hard drive reboot. I was very concerned with what had happened.
74. I believe this kind of attack as DNS Cache poisoning.
75. I immediately logged back into the email account and deleted the entire account. I cannot recall the name that I used for that account. I did not want to remember it. I was never going to use it again.
There are a number of issues that arise from this evidence. The assertion in the first sentence of paragraph 71 suggests that the relationship between the parents had improved before September to October 2008, but that is not my impression of the evidence give by the mother. Indeed the father told Dr Q that in about September 2008 he and the mother “were fighting, mainly because she couldn’t fall pregnant, she had a miscarriage, she wanted me to be investigated, she felt let down.” My impression of the evidence in its totality is that this was a turbulent relationship at the best of times.
At paragraph 72 the father deposes to receiving an email “with several links to internet services”. Both Mr Thomas and Mr Macpherson robustly cross-examined him about the email he received. The father did not assert in cross-examination that there were “several links”. Indeed with Mr Thomas he was very specific: “He sent me an email with a link on it.” (transcript, 11 May 2011, page 15, line 35)
Later in paragraph 72 the father deposes to seeing one photo of a “child in a sexual manner” and that whilst other images came onto his computer screen he “could not really make out exactly what was in the pictures …” In cross-examination by Mr Thomas (11 May 2011, page 16) the father explained that as he closed one window there was another behind it but that he did not look at the images, concentrating instead on closing the window. However, Ms C deposes in her affidavit of 14 April 2011 to the father saying to her: “The images were sent through to me. There might have been about half a dozen.” In cross-examination with Mr Macpherson (12 May 2011, page 81) he did not deny that he said this. The father then admitted that he might have seen half a dozen images (12 May 2011, page 82, lines 3-8).
At paragraph 75 the father deposes to logging back into the email account “and deleted the entire account”. However, what he told Mr Thomas about this is set out at p 17 of the transcript:
‑‑‑I rebooted the computer.
And then what happened?
‑‑‑I went back into the Hotmail account and I typed in the address and wrote down on a piece of paper a series of random numbers, like a random number of letters and numbers, and changed the password to that, and then closed the account and threw away the piece of paper.
There are, therefore, at this stage a number of inconsistencies between the father’s affidavit, and other evidence that he and others gave.
The father then deposes to the efforts he made to delete the images from his computer using software provided by his brother-in-law Mr F. He then deposes:
79. In fact about this time things seemed to be getting better between Ms Fan and I admitted to her that I had been viewing pornography again and she became upset and said “I want to see what you have been looking at”. I said “ok, I’ll show you later” intending to show her the websites I intentionally visited.
80. Unbeknown to me while I was away Mr F, at Ms Fan’s request, switched on my computer and using a software program went looking through my computer and in fact recovered my browsing history. I now understand that he used the same program that he had informed me of to delete the material. I was totally unaware that the program has this possible function of recovering the material as well.
81. On 1 November 2008, on my return home, Ms Fan confronted me with the claim that I had been viewing child pornography. I denied this claim and an argument then ensued, with the applicant demanding the view the contents of my computer. This argument and other circumstances are detailed in full at paragraphs 22 to 28 of this affidavit.
82. In the days following I received several emails from
Ms Fan demanding to know why I had been looking at child pornography. I replied to these emails explaining to Ms Fan that the images were a result of an accident and acknowledged that I felt I had placed her and our daughter in danger by viewing legal adult pornography, to the extent that I had inadvertently exposed myself to a risk of child pornography as well as betraying
Ms Fan’s trust after promising to never view adult pornography again. Annexed hereto and marked with a letter D is a copy of that email dated 2 November 2008.I cannot accept the father’s assertion in the first sentence of paragraph 79 that “things seemed to be getting better between Ms Fan” and himself. It is inconsistent with the first sentence of paragraph 71, and is inconsistent with the rest of the evidence.
The father annexes to his affidavit the email correspondence between the mother and himself of 2 November 2008. At 5:30pm the mother emailed him saying:
Why, [Mr Napoli]? Just tell me why. Why you looked at those disgusting pictures of little kids. Please.
Even the father concedes that by the time of this email the mother had confronted him about images on his computer that she had seen (paragraph 28, father’s affidavit). I observe that the context of the email, and the assertions made by the mother are very clear – that the father had been viewing child pornography. The father’s return email at 7:40pm is reproduced in full:
Ms Fan,
I know that I have hurt you, and in doing so hurt our daughter, in ways that I cannot begin to hope to overcome. I wish beyond wish that I could take back the last two week [sic]. I am not sure how I can try to explain things to you as you’re not likely to believe me but I will try.
When downloading the photographs you don’t know what you’re getting until it is there. I have seriously put myself in harms way by permitting myself to be there in the first place, in a place I should not be. I am going to see someone on Tuesday which will hopefully help me answer some of those questions. The question I want answered in myself is why I felt a need to place myself and, by association, my family in a harmful place. Why is this such a hook for me? What do I need to do to leave it behind for good?
I cannot tell you why I visit sites. I can tell you that this situation has been what I needed. I am now seeing things clearly. It may be too late but I pray that there is hope for us – although I understand that the road to recovery may be extremely long – if not impossible.
I am sorry I betrayed you and your trust.
Please believe me, I will kill this addiction. However long this takes. It will happen. I have never been so determined about anything all in my life.
Do you want me to communicate the findings of my counselling? I was ‘staying away’ as much as I could but am unsure as to what to do.
Part of the mother’s case is that this email is one of in fact several admissions the father makes about child pornography. The father’s case is that anything that might be otherwise characterised as an admission in fact relates to his addiction to adult pornography, not child pornography. The father’s interpretation of this email is possible, but not plausible. It is a possible interpretation if not seen in context, but once the context is understood – a direct response to an email dealing solely and specifically with child pornography – it is not plausible. Another possible interpretation of this email is that it is an admission limited to the images of child pornography the father admits he in fact viewed, irrespective of whether it is 1 or 6. I do not think this is a plausible interpretation of this email. The second last sentence of the second paragraph “why is this such a hook for me?” and the first sentence of the third paragraph “I cannot tell you why I visit these sites” create a strong inference that the father was not referring to one incident only. I find, therefore, that the most plausible interpretation of this email is that proposed by the mother, i.e. that it is an admission by the father of accessing child pornography, probably as part of this broader addiction to pornography on the internet.
The issue of the father’s admissions needs to be explored further. At paragraph 11 of the affidavit of Ms C she sets out discussions she had with the father one Saturday late in 2008. This is reproduced at paragraph 84.
Mr Ulbrick cross-examined Ms C about this paragraph. She insisted that when the father said he could appreciate the artistic quality of the photos they were in fact referring to the child pornography he had viewed on the internet and not [Mr H]’s work. Having regard to all the other evidence in this case I prefer the evidence of Ms C in this regard. She impressed me as a non-partisan witness who was genuinely concerned to help the father at the time of their conversations in late 2008. I accept, therefore, that the father was referring to images of child pornography when he expressed an appreciation of artistic quality.
It is the mother’s case that the conversations with the father deposed to in the affidavit of Mr T can likewise be construed as admissions in relation to child pornography. The father insists again that he was talking about adult pornography. It is clear that Mr T construed the conversation as referring to child pornography. Having regard to all the other evidence in this case I prefer the evidence of Mr T in this regard. He also impressed me as a non-partisan witness who was genuinely concerned to assist the father at the time. I accept, therefore that the father was referring to child pornography in the conversations deposed to by Mr T in his affidavit. Mr T’s evidence is discussed at paragraphs 79-83 below.
The father’s own evidence about viewing child pornography also raises concerns. He was insistent that he did not ever view child pornography other than on the single event that led to these proceedings which he considered inadvertent and unintentional. Indeed he said in cross-examination he was repulsed by child pornography. He insisted that he had not viewed more than six images on that one occasion. Notwithstanding all of this he admitted in cross-examination that he was worried that he could be tempted, and that was one of the reasons for seeing Dr B. It is important to set out a number of passages from the father’s cross-examination.
Well, you told Mr Thomas yesterday that you were worried you could be tempted?
---I did?
You did?
---I’m sorry, I don't recall that.
You said you wanted to stamp on it. Do you remember you saying you wanted to stamp on it because you didn’t want to be tempted by it?
---I’m sorry, I’m talking - at that time I believe that I was talking about stamping on chat and that sort of thing.
No, no. Sir, it was in relation to child pornography?
---That was when I started going to Dr B, yes. I understand what you’re saying now, yes.
Yes. You said it was after you saw the photo come up of the little girl with a penis in her mouth - - -?
---Yes.
- - - you were worried that you might be tempted and you want to stamp on it?
---That's right, yes. Yes.
The father agreed with Mr Macpherson that he was concerned that he would be tempted. He agreed that seeing Dr B helped him to resist the temptations to look at child pornography. He felt confident about this, i.e. that he couldn’t be tempted by child pornography, after seeing
Dr B. There follows an important passage at pp 96-97.The logical conclusion of that, can I suggest to you, sir, is that prior to seeing Dr B you were tempted by child - to view child pornography?
---No. I was fearful that I would be tempted.
But if there’s no doubts in your mind that you would be interested - the first and only time you ever saw it, I thought you told us you were sick from looking at it for a few seconds?
---Yes.
Why would you be tempted by something that, after only being exposed to it for a few seconds, would you be tempted by it?
---Because I saw the way my chat life had gone and I had gone from having normal chat with people, and I think I explained this yesterday.
Earlier today, yes?
---I had gone from having normal chat with people to having sexual chat and it getting worse and worse and I - - -
It’s gone from non-sexual chat?
---Yes.
To sexual chat?
---Yes.
To you adopting the persona of a man or a woman?
---Yes.
To having sexual chat in either a man or a woman’s thing?
---Yes.
To using adult pornography?
---Yes.
To photographing the genitalia of your patients that were in your care?
---That’s unrelated.
I beg your pardon?
---Unrelated.
You think it’s unrelated, do you?
---Yes.
You don’t see that as a progression of your descent into the world of sexual interests and perversities?
---I don't think it was sexual.
Not at all? Photographing people’s genitalia is not sexual?
---I can see a sexual connotation to it, but it wasn’t done - - -
What other connotation would you put on it?
---Because I had also taken photographs of broken legs or other operations the same - - -
Look, I’m not asking about broken legs though. I’m asking you about patients genitalia?
---Yes.
It has to have a strong sexual - - -?
---Yes, it would.
And you’ve gone from - I’m not going to go through it again - - -?
---Yes, okay.
- - - to bore everyone, but you’ve gone from non-sexual chat through to inadvertent child porn and taking pictures of patients’ genitalia, haven't you?
---Inadvertent child porn, yes.
Yes, and you’re tempted that you maybe - go the next step?
---Concerned that I would, yes.
You can understand why the court is concerned, can't you, about that?
---Definitely.
Why your wife is concerned - - -?
---Definitely.
- - - that you might take that next step?
---Yes.
Understand why Dr Q would be that way?
---Yes.
Because, even in your own mind, it’s a prospect that you may be tempted by it?
---It’s a prospect that I’ve, with a lot of help, overcome.
I consider this an important admission by the father that, at the very least, he once had a temptation to view child pornography that he believes is now overcome. The father asks the court to accept that this temptation arose out of the single event that is referred to in the evidence. I do not accept, for present purposes, the distinction that the father seeks to draw, i.e. that he was fearful that he would be tempted, as opposed to being tempted. It is an artificial, unrealistic distinction to draw. A proper construction of this evidence is that the father admits that he was tempted to view child pornography. He asks me to accept that, as a result of Dr B’s treatment, this temptation is overcome. This would necessitate my accepting that he told Dr B about this, i.e. that he might be tempted by child pornography. I accept that he probably did (see transcript 12 May 2011, page 98, lines 24-25). If he did not tell
Dr B, he could not possibly have overcome the temptation due to
Dr B’s treatment. If he did tell Dr B, I would need to be satisfied that the treatment he received dealt with this issue. In relation to Dr B’s treatment, the father said in cross-examination at p.99:Yes. You say at paragraph 60 you’ve seen Dr B for in excess of 24 sessions and:
“He has helped me to overcome my desire to use pornography.”
That’s not quite correct, is it?
---He has helped me to overcome it, yes.
You still have the desire for pornography, don't you?
---Okay, yes.
You still have the desire to go on chat lines?
---Yes.
Is it more correct to say that what he has done is helped you with coping mechanisms - - -?
---Okay, yes.
- - - so that you don’t give in to those urges?
---That would be more accurate, yes.
I don’t believe that this evidence can be safely construed as evidence limited to adult pornography and chat issues. In other words I don’t think I can infer that any coping mechanisms referred to here relate to child pornography. That is because before his cross-examination the father never admitted that he was tempted by child pornography. He insisted that his internet addiction was to adult pornography and chat rooms only.
The only way the court could be satisfied that the father’s temptation to view child pornography is in fact overcome is if I were satisfied from Dr B’s evidence that he treated the father about this issue. I am not satisfied that this is the case. Nowhere in Dr B’s evidence (oral or written) is there any reference to either the father admitting that he was tempted by child pornography, or that he treated the father in this regard. Indeed Dr B was quite clear – he did not treat the father for child pornography as the father did not consider this an issue. If the father did tell Dr B that he was tempted by child pornography, or anything approaching temptation (e.g. a fear that he could be tempted) it would be extraordinary that this is not to be found anywhere in
Dr B’s evidence.On the evidence before me, therefore, I cannot be satisfied that the father’s temptation to view child pornography has in fact been overcome.
A case like this is, in effect, a difficult exercise in assessing risk to a child. I am satisfied that the matter referred to above is of itself a significant risk consideration. The temptation to view child pornography is not a risk of the same magnitude of the risks to a child associated with a parent viewing adult pornography. I am satisfied from Dr Q’s evidence that the magnitude of risk is greater. A parent who is tempted to view child pornography presents a risk to a child which is greater than the risk to a child presented by any parent who either does or does not view adult pornography.
In assessing the risk to [X] in this case I am satisfied that my evaluation of the evidence should not stop here. It does need to move beyond the issue of admissions to the father’s behaviour after the critical incidents referred to in the evidence. How the father responded to the events which led to the separation and subsequent charges helps me to assess the risk to [X].
On this topic Mr Macpherson’s skilful cross-examination demonstrates a number of concerning matters relating to the father. The father had a number of theories to explain how the images of child pornography came to be on his computer. One theory is that his brother-in-law Mr F put them there. Another was that he experienced what he called a DNS Cache attack. Another possibility was that the images were already on the hard drive at the time he purchased the computer. Another possibility was that the police had mixed up the hard drives of the computers. All of this of course externalises responsibility for the pornography away from the father. If the father’s evidence is correct, and it was a single and unintended encounter with child pornography, it is hard to understand this externalising behaviour. Likewise it is hard to understand the father’s actions in seeking to destroy physical evidence relating to the child pornography. He sought to erase all records of images on the computer. The father explained that he had lost the hard drive of his laptop, thus making it impossible for any investigation to take place in relation to data stored on it.
And then you can't remember what you did with the hard drive from your laptop?
‑‑‑That's correct.
You see, another version of events that could be true is that you took out the hard drive of your laptop because you didn't want that being taken by the police, because you knew that that would have disclosed various addresses that you had been to. What do you say about that proposition?
‑‑‑I say it's not correct.
The data storage device on his mobile telephone was also lost. The manner in which the father ensured that there could be no further access to his Hotmail account attracted great criticism by Mr Thomas:
MR THOMAS: Well, listen up. See, what you've done is you've realised that you can be tracked down. So what you did, you changed your password – as you very ably said – into a mixture of whatevers, that you can't even remember. That guaranteed no more access to your Hotmail account. That's right, what I've said so far, isn't it?
‑‑‑Yes.
Then you destroyed the bit of paper; that's right, isn't it?
‑‑‑Yes.
Because, as you told his Honour, six months later, poof, your Hotmail account is gone because of inactivity?
‑‑‑Yes.
All evidence of what you've done is gone; that's right, isn't it?
‑‑‑I wouldn't say what I've done is gone, no.
You said not long ago that after you close a Hotmail account, six months after that date if it's not used, and inferentially you couldn't use it because you no longer had the password to it, whatever was on there was destroyed?
‑‑‑However, I wasn't trying to cover my tracks ‑ ‑ ‑
Well, that's what ‑ ‑ ‑?
‑‑‑ ‑ ‑ ‑ which is what your question was.
It has covered your tracks, though, whether they be good tracks or bad tracks?
‑‑‑Okay.
Hasn't it?
‑‑‑Yes.
You see, if you hadn't done that, you could come along and you could say, "Here's my Hotmail account. Look, see, all innocent. I have just been chatting away to these people, pretending I'm someone, or not pretending I'm someone, getting the odd picture," but you can't do that now, can you, because you've arranged it so that no one has access to that Hotmail account; that's what you've done, isn't it?
‑‑‑I've arranged it so that I couldn't have access to that account.
Or anyone else?
‑‑‑Sure.
The passages I have extracted above trouble me. Dr B asserts that there is no risk to the child presented by her father. One of the issues for me in assessing the weight I should give to his evidence is to understand what the father reported to Dr B, Dr B’s responses to that, the hypothesis developed by him, the therapy delivered and the father’s responses to this. If Dr B unquestioningly accepted everything the father said to him, it would reduce the weight I would give to the report, even allowing for the fact that it was a therapeutic, and not a forensic, relationship between the father and Dr B. Dr B simply could not articulate how he reality rested what the father said. In the passages from the transcript above, he wasn’t even consistent about whether it was his role to reality test or not. What concerns me most is that I am not satisfied that Dr B did not reality test what the father reported to him. It is more likely than not that he did, but that this evidence is not before the court.
One of the issues about Dr B’s evidence is the lack of clarity I have in relation to whether or not Dr B considered the possibility that the father did view child pornography more than he admitted, or was a paedophile. What is clear is that the father denied this to Dr B, who treated him for problematic internet usage together with the sequelae of the criminal charges against the father. Mr Macpherson cross-examined Dr B in relation to his hand-written notes for 2 February 2009.
“Legal issues” is the first. “The central meaning of the internet engagement.” And then I have a little box with “fantasy” around it. Then, “Does it mean,” with three thought points: Paedophile? Incest fantasies? Something else? What? An arrow to “what,” an arrow to “control,” “equals,” then: Being controlled/coerced/influenced. Not doing the influence – “Not,” I presume – …doing the coercion. That’s very important.
All right. Can I just stop you there?
‑‑‑Yes.
Was it at that stage where you had written “Paedophilia?” – was that a not a tentative diagnosis by you but a query as to something that you ought to be exploring?
‑‑‑My memory of this is that this was a generalised question. What is the meaning of internet engagement? It can mean a number of things, hypothetically. So that the notion, as I understand it, from memory, it was that engagement – problematic internet engagement can mean a number of different things, hypothetically.
Well ‑ ‑ ‑?
‑‑‑I don’t recall the full context of this. “Coerced influence” – but my reconstructive memory would be that this was going through the abstracts and various possible meanings of to be explored.
Well, they would have been explored with this particular patient, wouldn’t it? Whether there was some aspect of paedophilia?
‑‑‑Yes. It ‑ ‑ ‑
Or if there was some aspect of an incestuous relationship, or whether it might have been something else, was his – for want of a ‑ ‑ ‑?
‑‑‑Yes. Yes, it would have been explored in therapy.
I find it troubling that if, as Dr B asserts, the issue of paedophilia and incest was explored in therapy, there is no record of this. The notes for 3 February 2009 contains a reference to a “little green man”. The context of this is a discussion with the father about how the child pornographic images came to be on his computer.
Do you have any explanation of what that refers to?
‑‑‑Yes, I do. It’s the notion of going through all possibilities, including absurd ones. It was probably my own gloss. It’s not something Mr Napoli would have said to me, but it’s something I would say.
All right, thank you.
HIS HONOUR: So just so I understand that, you say “little green man” as a way of, I guess, signifying that all possibilities need to be considered?
‑‑‑I think I had a bit of a mischievous sense coming in here that some little green man came in from outer space and put it there, which clearly wouldn’t be plausible, but it’s part of my style, I’m afraid, of using sometimes paradoxical humour to say, “Well, you know, let’s rule that one out. It had to come from something more plausible than that.”
HIS HONOUR: In the context, does that mean that you were suggesting that the preceding options were not plausible?
‑‑‑Not necessarily, your Honour. I mean, if you want me to recount what I was thinking in terms of these options ‑ ‑ ‑
HIS HONOUR: I’m going to leave that to Mr McPherson. If he wants to hear that, he will ask the question, yes.
MR McPHERSON: No, but thank you.
I find this a curious explanation. I suspect Dr B was sceptical of the father’s explanation and yet nowhere in his records is there any evidence of exploring this. If Dr B had hypothesised that the father had in fact knowingly downloaded the child pornographic images, but then explained why this hypothesis was then eliminated, Dr B’s report would have much greater weight.
One of the most serious concerns I have about Dr B’s evidence arises out of an email he sent to the father on Saturday 21 February 2009 which is reproduced below:
> From: [omitted]
> To: [omitted]
> Subject: RE: Part One
> Date: Sat, 21 Feb 2009 05:59:56 +1100
>
> Hi [Mr Napoli],
> Just a suggestion to cover all contingencies. “Doing a beat” in this
> context is a figure of speech. Doing beats, literally is illegal (though
> thinking about it is not). So just to avoid ANY possibility of doubt or
> misreading, I’d suggest referring to the figurative activity as DAB and
> DAB-ing! It also introduced a touch of humour.
>
> Re the B-Pay transfer: again, just to cover all contingencies, did you
> print the receipt number for the B-Pay? At this stage it’s not in the
> account, but I think it might take a couple of working days. I always
> print the receipt on the Peter Principle.
>
> Cheers, [Dr B]
Dr B agreed that he was the author of the email, and indeed he recalled writing it. Mr Thomas asked Dr B about the reference to “contingences”:
What contingencies were you talking about there?
‑‑‑Your Honour I was talking about the contingencies of firstly emails being able to – being accessed by others and taken out of context. I was also aware of the contingency that under the privacy consent form all materials could be potentially subpoenaed and therefore were subject to – misinterpretation if taken out of context. I was also aware of the contingency that if my memory is correct that there were criminal proceedings going on at the time and therefore email correspondence could be being monitored or accessible to police and could therefore be interpreted wrongly if taken out of context. They were the contingencies as far as I recall that I was referring to in that email.
So why were you worried about the police?
‑‑‑I wasn’t worried about the police, your Honour.
Well that was a contingency that you were covering?
‑‑‑I was worried about a possible misinterpretation by another agency rather than being worried about the police as such.
You just – you were the one who said “Police” not me, you. What were you worried about the police getting a copy of this email for?
‑‑‑My concern was that if anyone got a copy of that email it could be misinterpreted if taken out of context, your Honour.
For instance if I got a copy of it I could take it out of context. Is that what you’re sort of worried about?
‑‑‑That would be one possibility, your Honour.
There followed questions about “doing a beat”:
What did you mean by “Doing a beat”?
‑‑‑Your Honour, the expression “Doing a beat”‑ ‑ ‑
No. Stop there. The question was what did you mean?
‑‑‑I’m unclear, your Honour, as to whether the question refers to what did I mean in the context of Mr Napoli’s use of the word or in the social and general meaning of that expression. Could you clarify the question as to which of those two contexts you were referring to please.
No. This is an email that you wrote to this man over here. You wrote it. You put it together. What did you mean by it?
‑‑‑What I meant, your Honour, is that “Doing a beat” in the literal sense of the word is a criminal offence.
Mr Thomas became increasingly, and justifiably frustrated by the inability or unwillingness of Dr B to answer the question.
Stop there. You’ve got 12 years of tertiary education. I’m not after a social context. You wrote this. What did you mean to convey “Doing a beat” was? I’m not interested in social contexts. I want what you meant to convey to this man over here?
‑‑‑“Doing a beat” has the meaning of anonymous sexual encounters in a public toilet or some other place, your Honour.
The cross-examination continued:
Continuing:
Doing beats literally is illegal, though thinking about it is not -
You agree that you wrote that?
‑‑‑I do, sir.
So you can think about having sex in a toilet. You say that’s permissible, but having sex in a toilet is not permissible. Is that your view of the law is it?
‑‑‑Yes, sir.
and – and then you go onto say:
So just to avoid…
and you capitalise –
“ANY POSSIBILITY OF DOUBT” misreading I would suggest referring to the figurative activity as DAB and dabbing exclamation mark –
It also introduced a touch of humour.
Why did you say that?
‑‑‑I said that, your Honour, so that any possible misunderstanding and misinterpretation of that figurative mode of speak would be sensibly avoided.
Why. Why sensibly avoid “Doing a beat”? Why – I withdraw that. Why do you say it’s sensible to avoid the use of the word – word “Doing a beat”?
‑‑‑Because, your Honour, it’s sensible to avoid the use of an expression that would be amenable to a distorted misinterpretation, especially in a mode of communication that as we all know is not secure and private and therefore is amenable to access in various contexts.
Dr B then explains in categorical terms that the father never revealed to him that he was having sex in public places. Moreover the reference to “dabbing” was not intended to refer to such activity, it was meant to refer to problematic use of internet sites. The cross-examination continued:
Well, why are you writing to him about it?
‑‑‑Because, your Honour, use of the figure in an – in a metaphorical sense could be misinterpreted if read out of context by the wrong party.
HIS HONOUR: Much like has happened now, Dr B?
‑‑‑Yes, your Honour.
MR THOMAS: You say I’m misinterpreting this?
‑‑‑I didn’t say that, your Honour.
Am I? Am I misinterpreting this?
‑‑‑Your Honour I don’t know what Mr Thomas’ interpretation is.
HIS HONOUR: Well, I mean, on the face of the email as I have heard it one reasonable inference is that the father may have said something to you that you characterised as dabbing?
‑‑‑That’s correct, sir.
That’s – would you agree that’s a reasonable interpretation of the email?
‑‑‑Yes, your Honour, and that that was a metaphorical figure of speech for an activity. May I elaborate on what the activity was.
I’ve opened it and I’m going to allow it to keep going. Yes. Please do?
‑‑‑The activity, your Honour, was a problematic use of internet chat sites which had something of a compulsive dimension to it in the same way as metaphorically it’s agreed that there’s a compulsive dimension to the literal meaning of doing beats that there is some sort of a dynamic – not equivalence but similarity between the two modes of activity.
I find this evidence extraordinary. Dr B was seeing the father in the context of sexual issues. To then use a code that was so laden with sexual undertones is remarkable. Dr B said that he did this to avoid distorted misinterpretation, but that it the very thing it created. Indeed it clearly led the mother to believe that the father was engaged in public sex, a perception that is certainly available on the evidence. Moreover, the Independent Children’s Lawyer submitted that, based on this email alone, there was reason to be concerned that Dr B was sanitising the father’s communications with him so as to minimise the potential harm to the father if his records were subpoenaed. Again I find that this is a reasonable perception of events.
The cumulative effect of all of the matters referred to above lead me to have serious concerns about Dr B’s judgment about these issues. Dr B lacked sufficient objectivity to be able to provide an opinion to the court that is of assistance to it. I cannot find that Dr B was dishonest, as is submitted on behalf of the mother. I cannot find that Dr B was deliberately seeking to inhibit the forensic process, as submitted on behalf of the Independent Children’s Lawyer. There are sufficient concerns, however, about the reports and their methodology to lead me to conclude that they are of little assistance to the court.
Assessment of risk to [X]
Dr Q’s report, and her opinion concerning the allegations, provides a useful template for assessing the risk to [X], having regard to the matters referred to above.
I am satisfied on the evidence that the father does have an interest in child pornography. Dr Q believes that, if this is the case, there is a risk to the child because individuals interested in child pornography are at a risk of progressing to “hands on” offending. I am satisfied that this risk exists in this case.
Dr Q felt that this risk may be higher for the father because of other factors, especially the paraphilic activities in the form of exploring fantasies via the internet. The father admitted this in cross-examination. He explained that he frequented three chat sites called “BiFemSex”, “Cybersex” and “Nudism”. He would create a persona and “would use that persona whilst I was in this place emotionally, and I would destroy that person at the end of that time” (transcript, 12 May 2011, page 65, lines 6-8). He described this as a sexual problem he was having (transcript 12 May 2011, page 77, line 30). He described the process as having cyber-sex and it worked as follows:
Sir, if you’re only interested in, as it were, artistic, beautiful women on the internet, why do you need to go to pornographic sites?
---As I said, there were the props that I used for my chat.
I understand that. Why don't you just go and look at beautiful women on the net?
---Because I - that’s what I would use for pornography, but in the chat I would use amateur photographs.
Amateur pornographic photographs?
---Not necessarily pornographic. You would - - -?
---Generally not actually.
You would take them - - -?
---And pretend that I was that person.
- - - and pretend you were that person. So you would, for example, take my solicitor, if you saw a photo of her on the net, and put that into your link, or whatever it was, into your chat room - - -?
---Yes.
- - - and say, “Here is a photo of me. My name is Mary”?
---Yes.
Why did you have to go to amateur or pornographic sites to do that?
---Because the progression, what people would want for progression of the photographs - like, we would start off with a clothed photograph and then go to a naked photograph.
Wouldn’t that require you to have one - it was women sometimes at least, wasn’t it, that you were doing this, your person was?
---The majority was women.
Yes. You would have to start off - you would have to know, before you start off on the exercise, if there was going to be a progression that you had a series of photographs?
---Yes.
You would have Mary dressed, Mary stark naked?
---Yes.
Mary with her legs asunder?
---No, they wouldn’t have gone that way.
No. I’m not sure that I full understand it, but did you have cyber sex?
---Yes. I did, yes.
The father agreed with me that in this “second life” that he inhabited (his description) there was really no way of being sure that the person with whom he was communicating was not a child because he simply had to accept whatever they represented their age to be. Just as the father was adopting a persona in cyberspace, he could not be sure of the other persona with whom he was having cyber sex. He agreed that this was both risky and stupid.
The father also admitted that he photographed patients when working as a [omitted]. He agreed in cross-examination that it could have a sexual connotation, but denied it did for him. In re-examination he explained this further:
Mr Napoli. You were asked about taking photographs of a patient’s genitalia?
---Yes.
And I think, in response, I think it was to the mother’s barrister, I think you said, “I didn’t do it for sexual reasons”?
---Yes.
Why did you do it?
---Yes. I - misguided medical reasons. Because I was doing my [omitted] degree at the time, I was trying to sort of, like, get - what’s the word - information that I could use if I was needing to do an essay or the like. I was also very involved in that actual procedure because the person had put an item around their penis, which had caused it to swell very badly, and I came up with the idea on how we would be able to cut it off without injury to the patient. So I was kind of a little bit proud of my thoughts.
So that was in fact the procedure to get rid of this ring?
---That's right, yes.
Whilst the father may well have felt pride in finding a solution to the difficult problem experienced by the patient there was little demonstrated self-reflection on the inappropriateness of taking the photograph. I do not accept that the father’s explanation removes this incident outside of Dr Q’s description of “other paraphilic activities”.
Dr Q explains that in assessing the risk of progression from child pornography to hands on offending there were a number of risk factors. These include sexual deviance, anti-social orientation and intimacy deficits. She believes that the father demonstrates some of these features including sexual deviancy and intimacy deficits. I agree that there is ample evidence of sexual deviancy arising out of what the father himself described as his “second life” in cyberspace. I agree that there is ample evidence from both the father and mother of deficits in his capacity for intimacy. This is sadly the case. I do not think this is in issue and hence I prefer not the set out the evidence in this regard. Dr Q asserts that whilst the father does not have an antisocial orientation there is evidence of “breaking social rules” by, e.g. pushing the boundaries in the context of supervised contact, and a lack of insight or awareness of the inappropriateness of his own behaviour. I regard the father’s actions in taking a photography of a patient’s penis as another example of “breaking social rules”, particularly when the evidence of the Area Health Service investigation suggests that father had not complied with a clear prohibition against taking his mobile telephone into an operating theatre. Dr Q also referred to the evidence that Ms K gave of the father being resistant to instruction in the context of supervised contact, as well as her own observations of the father’s time with [X] when he asked her to sit on his lap. Dr Q regarded both of these instances as examples of the father pushing “the boundary a little”.
Overall, therefore, there is evidence that clearly supports Dr Q’s assessment that there is present a risk to [X] that the father will progress from viewing child pornography to perpetrating against [X].
Supervised time or no time?
Having regard to the assessment of risk I have made above, should [X]’s time with her father be supervised, and if so, how and when, or should there be no contact at all?
Supervision is certainly the most that I would countenance for the time being. The father’s proposal is not in [X]’s best interests because it contemplates eventual unsupervised contact.
Dr Q expressly recognises that there are other issues relating to contact that suggest even supervised visits may be problematic. I agree. Long term supervised contact visits are always problematic especially in cases where the only available option is a supervised contact centre or other professional service. I do not accept that the supervisors proposed by the father are appropriate or, indeed, will ever become appropriate even after reading these reasons. They lack objectivity, and with subjectivity an element of risk creeps in. I must consider the possibility that a supervised contact centre will not accept the father, particularly after I publish these reasons. I am unsure whether the father could sustain the long term cost of paid professional supervision. I am also conscious of the mother’s mental state. I agree with Dr Q’s assessment and based on my own observations of the mother over six days – she has histrionic personality traits and is highly distressed. Having regard to the findings I have made about the father, her distress is entirely understandable. Whilst the mother’s own psychologist suggests she will eventually cope in an emotional sense with supervised contact, this may well be an optimistic assessment and may well have been predicated on an assumption that the mother’s concerns had no objective basis. The mother is concerned that the father is grooming [X]. She will hardly be reassured by the findings I make. Whilst I find little evidence to support a finding that the father has been grooming [X], I cannot rule out the risk that it will happen.
The risks to [X], even of supervised contact, are directly proportionate to the risk that the father’s interests in child pornography will progress. I believe that risk is real and substantial. Quantifying it is, of course, impossible. I am satisfied from all the evidence that he has, at the very least, minimised his interest in child pornography. At most, he was completely dishonest about it. I do not accept his explanation about how 518 images of child pornography came onto his computer. I do not accept that it was inadvertent, or limited to one occasion only. He does not accept that he has an issue with child pornography beyond accepting that he is fearful that he will be tempted. Without acceptance of the problem there is heightened risk. Clearly he has not received any therapeutic treatment for this, because he does not believe he has a problem. In the same way as Dr Q believes that the father is not dealing with issues relating to his sexuality frankly, I find that he is not dealing with the issue of child pornography frankly. This means that the risk of harm to [X] is so unacceptable that, together with the other matters to which I have referred, there should be no contact at all.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date:
Schedule A
That the parties have equal shared parental responsibility of the child of the marriage namely, [X] ([X]), born [in] 2006.
That the child live with the mother.
SPEND TIME WITH
That the child spend time with the father as follows:
(a)Supervised time with [X] every fortnight for 3 months at a contact centre such time to be for a minimum of 2 hours on a day and at times as allocated by the management of the centre.
(b)Thereafter until [X] turns 6, supervised time with [X] every fortnight, such time to be for 4 hours from 11 am to 3 pm and to occur in the [W] area to be supervised either by the paternal grandmother Ms N or the father’s sister Ms W.
(c)Thereafter until [X] turns 7, supervised time with [X] every fortnight for 7 hours from 10 am to 5 pm and to be either by the paternal grandmother Ms N or the father’s sister Ms W
(d)Thereafter, until [X] turns 8 supervised time with [X] every fortnight such time to be overnight from 10 am on Saturday to 2 pm on Sunday either by the paternal grandmother Ms N or the father’s sister Ms W.
(e)Thereafter, until [X] turns 9 unsupervised time with [X] for every fortnight such time to be overnight from 10 am on Saturday to 2 pm on Sunday and for 4 days of each school holidays such 4 day period to be by agreement but failing agreement in the first week to commence on Monday at 9am until Thursday until 5pm.
(f)Thereafter, until [X] turns 10 unsupervised time with [X] each alternative weekend from 6 pm on Friday to 6 pm on Sunday and for 1 week of each school holiday to be by agreement but failing agreement the first week to commence on Monday at 9am until the following Monday at 9am.
(g)Thereafter from when [X] turns 10 each alternative weekend from 6 pm on Friday to 6 pm on Sunday and for one half of each holiday period such period to be by agreement but failing agreement the first half of the holiday to commence on Monday at 9am and end at 9am at the midpoint of the school holiday period.
(h)At all other times as agreed between the parties.
That for the purposes of changeover unless otherwise agreed in writing as follows
For the time in Orders 3a at the contact centre
That for the time in Order 3b the changeover to be at McDonald’s at [omitted] with the father picking up at the start of time and dropping the child back there at the end of time.
That for the time in Order 3 c to g the changeover to be at McDonald’s at [omitted] with the father picking up at the start of time and the mother picking up at McDonald’s at [omitted] at the end of the time.
CONTACT CENTRE
That for the purposes of implementing order 3a the parties shall forthwith contact the management of the [omitted] Children’s Contact Centre to arrange to attend for assessment interview.
PHONE CONTACT
The father to be at liberty to speak with the child on the phone every Monday and Wednesday between 6pm and 7pm on the week that he is not spending time with the child and on the Wednesday only on the week he is spending time with the child.
In order to facilitate order 6 the father to call the child on the mother’s mobile phone number. In addition, the mother will maintain the mobile phone charged and working for the period.
That the parties shall keep the other informed of contact telephone numbers both mobile and landline and will advise the other parties within 48 hours of any change thereof.
CHRISTMAS
That for the Christmas period until the child is 9 the father will spend time with child on Christmas day from 4 pm to 7 pm
Thereafter with the mother to have the child from 1:00pm Christmas eve until 1:00pm Christmas Day in the year 2014 and each alternate year thereafter and the father to have the children from 1:00pm Christmas Day until 1:00pm boxing day in that year and each alternate year thereafter.
That for the Christmas period the father to have the child from 1:00pm Christmas eve until 1:00pm Christmas Day in the year 2015 and each alternate year thereafter and the mother to have the children from 1:00pm Christmas Day until 1:00pm boxing day in that year and each alternate year thereafter.
SCHOOLING
After the child turns 7 that the father be permitted to attend any function held by the child’s school.
NOTIFICATION OF MEDICAL/SCHOOL
That in the event of the child suffering a serious medical condition or requiring urgent medical attention whilst in the care of either parent that the other party is to be notified as soon as practicable.
That these orders shall be sufficient authority to authorise the school and any doctor or hospital to release information requested by either party relating to the health of the child but each party shall also give all authority, consent and direction to encourage and permit the same.
DENIGRATION OF OTHER PARTY
That neither party denigrate the other party in the presence or hearing range of the child.
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