Harris and Cavanagh (No 2)

FAMILY COURT OF AUSTRALIA

HARRIS & CAVANAGH (NO. 2)

[2018] FamCA 1147

FAMILY LAW – PARENTING – where father convicted of possessing child exploitation material when child of his relationship is almost two – where, after serving prison term, father has regular supervised contact with his child who is now ten – where father wants unsupervised time – where mother opposes any time and a cessation of all orders – where history of drug use, pornography usage and breach of reporting conditions as a registered sex offender – where supervised time should continue.

Family Law Act 1975 (Cth)

Deiter & Deiter [2011] FamCAFC 82
In the Marriage of A (1998) FLC 92-800
In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655
M v M (1988) 166 CLR 69
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395
Potter v Potter (2007) 37 Fam LR 208

Fogarty J, (2006) 20 Australian Journal of Family Law 249
Mahendra B,‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569

APPLICANT:

Mr Harris

RESPONDENT:

Ms Cavanagh

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

2917

2015

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1, 4, 7, 12, 13 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Howe

SOLICITOR FOR THE APPLICANT:

Belleli King & Associates

COUNSEL FOR THE RESPONDENT:

Mr Korke

SOLICITOR FOR THE RESPONDENT:

Robert Halliday & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

AND UPON THE COURT NOTING THAT notwithstanding the father is a person affected by registration under the Sex Offenders Registration Act 2004 (Victoria)

IT IS ORDERED:

All extant parenting orders are discharged.
The mother has sole parental responsibility for all major long-term decisions concerning the child Z born … 2008.
That Z live with the mother.
That Z spend time with his father Mr Harris as follows:
(a)Until Z attains the age of 16 years, during each alternate Saturday or Sunday (the day to be negotiated between the mother and the supervisor of the father’s time as indicated by these orders) from 9 am until 5 pm commencing on the date after the conditions in paragraph 5 are met; and
(b)Once Z attains the age of 16 years, as otherwise agreed.
Paragraph 4 (a) of these orders is conditional upon Mr B:
(a)agreeing to be the supervisor and agreeing that all such time shall be supervised by him;
(b)being authorised by the father to attend with him upon the manager (or similar responsible person) of the Sex Offenders’ Program attended by the father (before it concludes) for the purposes of an explanation (if practicable) as to:
(i)what restrictions are imposed on the father because of being a registered sex offender; and
(ii)what perception the Department of Justice and Regulation (Victoria) has as to the risk the father is to any child;
(c)signing an enforceable undertaking to the Court, the original of which will be filed with the court and placed on the court file, with copies to be provided by the father to the solicitors for the mother and the Independent Children’s Lawyer setting out that he has:
(i)agreed to supervise the time between the father and Z;
(ii)attended to the matters referred to in (i) and (ii) of paragraph 5 (b);
(iii)will read the judgment of this Court when published;
(iv)understands the nature of the undertaking and the seriousness of the role of the supervisor; and
(v)will contact the mother to advise her that he will return Z immediately to her if there is any risk to Z or if Z becomes distressed by any conduct of the father.
That the undertaking referred to in paragraph 5 (c) be in the terms required by this order and drawn by the solicitor for the father to the effect that:
(a)Mr B has been given legal advice as to the terms of the undertaking and specifically that any breach by him may be viewed as a contempt of court punishable by imprisonment; and
(b)The father agrees to the terms of the undertaking of Mr B.
For the purposes of paragraph 5 (b), the father and Mr B shall provide the relevant officer of the Sex Offenders’ Program with a copy of these orders with a request that Mr B be given the assistance to enable these orders to be effective.
On each Wednesday prior to a contact weekend, the mother facilitate a Skype communication between the father and Z for a period of up to 30 minutes but she also has the right to terminate the communication if the father says inappropriate things to Z about:
(a) the contact arrangements provided by these orders;
(b) the maternal family; or
(c) things that she decides are disturbing Z.
The mother forthwith authorise the father to attend upon Z’s psychologist if he is required to assist Z’s counselling but only under the supervision of Mr B.
For the avoidance of doubt:
(a)Paragraph 4 (a) shall not commence until the completion of all obligations under paragraphs 5 and 6 of these orders;
(b)The father has liberty to apply if the terms of paragraph 5 (b) cannot be implemented;
(c)Mr B shall be responsible for collecting Z from the mother at the commencement of any contact period and for returning him to her at the conclusion of any such contact period; and
(d)If Mr B is not willing or able to fulfil any supervision under these orders, no provision is made for an alternate supervisor but at all times, the mother may agree to any alternative; and
(e)If the father’s time cannot be supervised as required, the provisions of these orders are suspended until either Mr B agrees to a resumption of the orders, agreement between the mother and father is achieved, or further order of the court.
The mother forthwith in writing, authorise the school at which Z attends to:
(a)Authorise the attendance of the father at the school for functions involving Z (including sporting and cultural events away from the school but which are school-related) provided always that the principal of the school has the ultimate right to determine the father’s rights of such access; and
(b)provide to the father any written reports which parents of a child attending that school would be entitled including photographs but all such materials be at the expense of the father;
The order for the appointment of the Independent Children’s Lawyer is discharged.
That save as to any issues of costs, all outstanding applications are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Cavanagh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2917 of 2015

MR HARRIS

Applicant

And

MS CAVANAGH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Mr Harris (“the father”) commenced living with Ms Cavanagh (“the mother”) in March 2005. Their only child Z was born in … 2008. In September 2009, the father was charged with possession of child abuse material found on his computer at a time when, it seems common ground, he was heavily using drugs. That brought about the end of the relationship between the mother and the father.
In case it was thought that all of the problems in 2009 focussed on the father, that would not be so. Around the period after charges were laid against the father, the Department of Health and Human Services intervened and removed Z from the mother’s care. Z was initially placed in the care of the father’s brother followed by placement with the maternal grandparents. That intervention brought the mother’s alcohol addiction to the fore and treatment. She has not consumed alcohol since 2012.
In November 2010, the father was sentenced to three months imprisonment at a hearing during which he pleaded guilty. For a number of reasons, including the father’s hospitalization after a suicide attempt, the sentencing did not occur for over a year during which time, he was apparently on bail. The sentencing remarks of the magistrate were not available to give some indication of how the community, as reflected by the sentence, viewed the father’s conduct. However, certified extracts of the court register were tendered in evidence. Albeit the father was said to have 100s of images on his computer, the court record shows that he was dealt with as follows:
(a)Make/produce child pornography between … August 2008 and … September 2009, convicted and sentenced to three months imprisonment;
(b)Make/produce child pornography between … August 2008 and … September 2009, convicted and placed on a community based order for two years;
(c)Make/produce child pornography on … February 2009, convicted and placed on a community based order for two years;
(d)Driving whilst authorisation suspended on 27 August 2009, convicted and sentenced to imprisonment for one month;
(e)Using a hand held mobile telephone in a moving vehicle on 27 August 2009, fined $200;
(f)Failing to answer bail on 12 March 2010, convicted and placed on a community based order for 24 months;
(g)Driving whilst authorisation suspended on 19 November 2009, convicted and sentenced to imprisonment for one month; and
(h)Using an unregistered motor vehicle on a highway on 19 November 2009, fined $500.
Offences associated with child pornography were substantially altered in Victoria in 2016 and the word “pornography” associated with those offences was altered to a much more appropriate term of “child abuse material”. The maximum penalty for the child pornography offences for which the father was convicted in 2010 was 10 years imprisonment. Under the law as it now stands, the maximum imprisonment is still ten years.
Absent the sentencing remarks, it is unclear why offences which appear to be similar attracted imprisonment for three months in the one case and a community based order for two years on the other. Either way, the magistrate deemed the offence sufficiently serious to place the father on the register of sex offenders under which he is required to report to Victoria Police for life. That particular order is significant in this case because the father breached his reporting conditions after his release from prison. The importance lies in the question of his attitude to the seriousness of his conduct and whether that in itself, creates a risk to Z.
The seriousness of the offences in 2008-2009 can also be seen in the order of the magistrate in 2010 which read:
But for the plea of guilty the sentence I would have otherwise imposed is immediate imprisonment 12 months.
One might conclude that the plea of guilty gave the father a substantial discount for an offence that ought not to have been difficult for the prosecution to prove. He made full admissions and the computer was stored in his home. He was the only person who had access.
The amendment by the Victorian Parliament to the Crimes Act reflects the community’s attitude to the possession of child abuse material. Although the father was charged with “make/produce” pornography, it is common ground that he downloaded the images from the internet. Doing that in itself gave rise to the nature of the charge. Like the Victorian Parliament, this court takes that sort of conduct extremely seriously. Any argument that a person has changed for the better and should be allowed to have a meaningful relationship with their child, must be viewed cautiously having regard to the provisions of s 60CC(2) and (2A) which read as follows:
Primary considerations
(1) 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Immediately after being sentenced in late 2010, the father was released on bail pending an appeal. He abandoned that appeal on 24 November 2010.
On being released from prison, the father spent time with Z under the supervision of the Department of Health and Human Services. Z was then almost three years of age. I have inferred that by virtue of the Department being involved, it saw some benefit to Z in having a relationship with his father.
However, since 2010, the father has been convicted on three occasions of failing to comply with his obligations under the reporting conditions of his registration.
On the first occasion, November 2010 was only just after his prison release. He was fined $500 for not telling police that he was spending time with Z. Doing the best I can with the evidence provided, it seems that in a standard interview process, the father told the interviewer that he was having that contact and as a consequence was charged. He was fined $500. One might conclude that so soon after being imprisoned, he was aware of his obligations.
In 2013, the father was charged a second time. He had been on a computer-dating website but did not tell the relevant authorities. He was again charged and fined, this time, $2000. This offence sounds innocuous but the penalty reflects the concern of the courts even if his explanation is that it was a mistake or misunderstanding. The penalty reflects that society deeply mistrusts sex offenders who are deemed a risk to children.
There was a third occasion; this time in 2016. The father decided to sell some pups bred from his dog and came into contact with a potential buyer who was a woman with children one of whom was autistic. The conversations between the two adults led to the woman indicating that she had an interest in the father for the purposes of a relationship. He did not tell her of his background. As this budding relationship began, it seems the woman was sufficiently interested to suggest they celebrate by having a pizza as a family and she decided to go and get it leaving him in charge of the children. He said he was terrified of the consequences but said nothing.
One of the children later wanted a photograph of one of the pups that had been sold. The father’s description of what occurred was that the woman told him it was fine to text the message with the dog’s photograph direct to the child’s mobile telephone. If that was all that occurred, it would seem innocuous because the child was under the care and protection of her mother. However, in cross-examination, it transpired that there were other text messages and the woman, who was at that stage still unaware of his background, told him that she thought it was inappropriate for a grown man to be so communicating with a child. The text messages were then tendered in evidence but it must be noted he voluntarily produced them. They are direct between the father and the child. The photographs are of dogs but the messages were part of communications which occur over consecutive days in January 2016. I can well understand why the child’s mother would have been concerned about the constant dialogue over which she had little control. Towards the end of the messaging, the child asked the father about what advice he would give her because she was missing her dog. He suggested she distract herself. Again, this is innocuous on its face but very unwise having regard to the position that the father was in according to the eyes of the law.
The father’s explanation was that he tried to do the right thing by this woman but in cross-examination, counsel for the Independent Children’s Lawyer asserted that he was not taking responsibility for his own actions. He denied that. When he told the child’s mother of his background as he ultimately had to, she went to the police. His evidence was that the woman gave the text messages to the police but she later contacted him to apologise for having got him into trouble. As an indication of the mistrust I earlier mentioned and the seriousness with which the law (or at least the police) viewed this, it was the father’s own evidence that 10 police attended armed with a search warrant. His computer was removed and he was subsequently charged with possession of child exploitative materials. That charge was withdrawn by the police but that gives me little comfort. Bearing in mind the requisite criminal law standard of proof, there may have been a variety of explanations. The father’s explanation was that the police accepted he had never knowingly opened these images which were apparently stored in his mobile telephone. That occurred because it was connected to his computer. How the images got there is unclear and it is not this court’s task to look at anything other than risk to Z. However, the lack of care apparent here is concerning.
The father acknowledges use of pornography and if Z was in his supervised care, there must be a risk of 10 police, armed with a search warrant, invading the father’s privacy in the future. It does not take much imagination to understand the fear and confusion Z would face. Police interviewed the father and charged him and he appeared before the Magistrates’ Court in December 2016.
The charges related to failing to comply with reporting obligations but this time, also knowingly possessing child pornography. As I earlier indicated, that chare was withdrawn.
Despite the innocuous nature of the interaction between the father and the woman with the child, the magistrate was sufficiently troubled about it to sentence him to imprisonment for one month. The seriousness of the view of the magistrate can be seen from the court record tendered in evidence which shows that the sentencing was noted that had it not been for the father’s plea of guilty, a sentence of “a longer term of imprisonment” would have been imposed.
The father appealed against the sentence in the Magistrates’ Court and was released on bail. In the County Court of Victoria, the sentence was varied to a community based order for two years which ended in 2018. It is not clear to me what view the County Court judge took apart from the inference I can draw from the sentence. Part of that sentence required the father to undergo assessment and treatment.
Thus, the absence of sentencing remarks in respect of all four hearings makes it difficult for this court to work out how the relevant courts viewed the seriousness of the offences but I have taken the view that there is sufficient material from which to draw an inference that, as the last offence was only two years ago, the court should view the evidence of the father with some caution.
It is the strongly articulated evidence of the father that he has never acted inappropriately in any sexual way with a child and that he is no risk at all to Z. He readily acknowledges the horrendous nature of the offences with which he was charged initially and maintains that any person doing that sort of thing to a child is disgusting and abhorrent to him.

One such example of his attitude, he says, came out of the request for him to undergo a therapeutic program involving other sex offenders. He was resistant to going into the program on the basis that he would come into contact with “child rapists”. The program was with a number of offenders but each of them apparently did not know of the nature and extent of the offending of the other participants. Resistant though he may have been, after three weeks, he participated appropriately. This attitude was put to psychologist Dr E who indicated that provided it only related to his initial participation, she would not be concerned. Indeed, she said that that sort of reaction would be normal.

The proceedings relating to parenting.

In 2015, the father applied to the Federal Circuit Court for parenting orders so that he could spend time with Z. At a hearing on 3 March 2016 at Dandenong, and at a time when the mother was represented by counsel, not to mention that the court had the benefit of an Independent Children’s Lawyer, orders were made that Z spend time with the father for four hours each alternate Saturday under the supervision of the maternal grandfather. That was an interim order but one to which all parties seemed to consent.
The orders of March 2016 were apparently in anticipation of a hearing to take place in June 2016. That hearing was never listed and the matter was ultimately set down for final hearing in April 2017 still in the Federal Circuit Court. Even there, the matter was not allocated a final hearing until August 2017 at which time, it was transferred to this court and placed in the Magellan list.
When the case was transferred to me in February 2018, a directions hearing was held and I set the matter down for final hearing in May 2018. Because of the contentious nature of the parties’ positions at that time, I made an order for the rules of evidence to be applied. I said:
[9]The nature of the subject matter concerns serious allegations involving the father who is currently on the sex offender’s register and who has been dealt with by the criminal law system. The evidence of the mother is that there were other allegations which did not resolve in charges but which troubled the police officer. Rather than have that evidence called in a simple belief statement, the author of any such evidence needs to turn his or her mind to the admissibility of it. That would not necessarily be the case if the rules of evidence did not apply. (My emphasis)
It is significant to note that no such evidence about “other allegations” has been presented. There is certainly a reference to police finding “thumb nail” images on the father’s computer and he was charged with offences of possession of that material but the charge was withdrawn.

The father’s outline of case

In his outline of case filed 30 April 2018, lawyers for the father said:
The parties are in disagreement as to most aspects of this matter and in summary the main issues in dispute are:
i.Whether the Father’s sex offence charges result in the Father posing any risk to Z;
ii.Parental Responsibility;
iii.How much and the frequency of time that Z should spend with the father; and
iv.Whether time spent between Z and the Father should be supervised.
That synopsis was not particularly helpful to indicate just what it was that gave rise to those issues. The father sought orders relating to his time with Z on a building up basis commencing with eight hours followed by overnight from 10.00am on Saturday morning to 6.00pm on Sunday evening and then in March 2019, each alternate weekend from the conclusion of school on Friday until 5.00pm on Sunday. He also sought school term holidays for four consecutive nights building up to five consecutive nights over the school holidays over the summer and then in the 2019/2020 long summer holidays, a week about basis. He also sought Skype communication one per week for not less than 30 minutes.
In addition to those times, the father sought the usual special days.
The outline of case (at page 14) referred to the fact that the father had been assessed as “low risk” or “no risk” relating to Z. That undoubtedly emphasises the question of any risk that the father might pose to Z but the assessing psychologist, Dr E said:
[72]It is the writer’s clinical opinion that (the father) currently represents a Low risk of sexual abuse, in relation to sexual contact with Z. However, he is considered to fall into a Moderate risk category of general offending behaviour.
An issue is therefore whether there is a connection between the protection of Z from harm, and an assessment of the risk associated with any orders being made, and the father’s association with other members of the community but also how he sees the laws of that community.
Finally, under the heading of “Conclusion” the father’s outline of case said:
(a)The father’s criminal history was an aberration and he does not present a risk to the child;
(b)In all the circumstances…the Applicant Father humbly requests this Honourable Court to make the Orders sought in this Outline of Case; and
(c)The Applicant Father is of the view that the orders sought referred to which result in a finalisation of the proceedings with the court would be in the best interests of the child Z.
“Aberration” means the act of “wandering from the usual way or normal course” or “deviation from truth of moral rectitude” or “lapse from a sound mental state” (Macquarie Dictionary, 2^nd edition). Having regard to the expert evidence in this case and the three breaches of the reporting conditions let alone the various offences that have brought the father before a court, I reject the suggestion that his “criminal history” was an aberration. If it was intended to mean that normally he was an upright and morally sound person, his history says otherwise. The father’s approach to heavy usage of cannabis from his 19^th year onwards followed by extensive use of drugs such as methamphetamines and Ice followed by at least two breaches of prohibitions on driving while suspended, in addition to the matters earlier mentioned, could not be said to be a history of upstanding citizenship and rightness of principle and practice in the community. Quite the contrary, his flouting of the law in the use of illicit drugs, his driving record and his self-gratification through extensive downloading of pornography, including child exploitative material, has to be seen as a poor indication of the responsibilities of a parent having regard to Z being a vulnerable baby back in 2008 and 2009. It is not the history to which the outline referred which indicates parental responsibility but the actions subsequent to all of that which gives the court some insight into the level of risk of physical or psychological harm to Z. Once that assessment is undertaken, the issue is whether or not that risk is unacceptable having regard to the nature of the orders each party has proposed.

The mother’s position

The mother’s position was that there should be no time between Z and the father notwithstanding she consented to orders in March 2016 and the period since that time between Z and the father has been supervised by her parents or largely by her father.
The mother’s outline of case document submitted:
·    The father has minimised his offending and is motivated by self-interest;
·    Z had to be protected from the father’s social isolation, dysfunctional personality traits and sexual dysfunction;
·    Z had to be protected from the indirect risk of harm of being associated with a sex offender meaning that Z could find out about his father’s criminal history in an unstructured manner;
·    Z had to be protected from being exposed to the psychological harm of his father’s objective views, sense of entitlement, anger and repeated comments that no-one would come between the two of them;
·    Z had to be protected from exposure to the father’s sexual proclivities;
·    Z did not have the ability to self-protect and was unaware of the father’s criminal behaviour;
·    The development of Z will be impacted by exposure to the father’s obsessive compulsion towards pornography and the father’s personality deficits (anger, persecutory complex, isolation, manipulative personality, lack of insight);
·    There was an unacceptable risk of Z having any time or communication with his father on account of the father’s ongoing viewing of child pornography, long standing dysfunction and lack of engagement with appropriate counselling;
·    The father had no insight into the needs of Z as far back as 2010 which resulted in Z being taken into protective custody; and
·    The father had failed to demonstrate a capacity to understand the impact of his offending upon the mother and Z.
That list of issues set the parameters of the hearing and counsel for the mother opened the case on the basis that those were her concerns. It was disconcerting to hear family consultant Ms C, who prepared a report for the Federal Circuit Court in 2017, indicate she had difficulty getting a sense of the mother’s views. At [70] Ms C reported that the mother had stated that her solicitor had suggested they seek to sever the face to face relationship between the father and Z. That is relevant to the question of the motivation of the mother in circumstances where a major issue of concern to the family consultant in April 2017 lay in the fact that sooner or later Z was going to find out about his father’s history, and absent some counselling involving both parents to prepare him for that, the results would not be psychologically good for him. Ms C indicated that a cautious approach to preparing Z was important and yet, the mother’s position seemed to be to exclude the father completely. How Z would deal with all of that if such an order was made, remained unclear.

The position of the Department of Health and Human Services

On 19 October 2017, as the case had been transferred to this court and was placed in the Magellan List, an order was made for the Department of Health and Human Services to provide historical data as to the involvement of the Department in the life of Z. That order was made so that the Department could provide notifications made to it about suspected child abuse as well as any assessments and reports commissioned in the course of investigating those notifications. In this case, a specific report was prepared and filed with the court on 27 November 2017.
Section 69ZW(5) provides that the court must admit into evidence any documents or information provided in response to its order on which the court intends to rely. I intend to rely upon that report.
Over Z’s life, there have been 13 reports to child protection. They began in 2009 when the Department received a report about the father’s substance abuse, mental health and access to child pornography. At that time, it was reported that the relationship had ended and the father had left the home and the mother was assessed as understanding the concerns and agreed to ensure Z’s contact with his father was fully supervised. That did not happen.
After the father was charged but before any sentencing, he took Z into his care whilst he stayed in a caravan park. He spent most days with Z and overnight with him on consecutive days on a number of occasions. His evidence, which was not challenged, was that the mother told him that she enjoyed the breaks from having to care for Z. Z was only two years old. The father’s evidence was that the mother later agreed he could stay with her in anticipation that he was going to prison. He stayed for some weeks and described the mother as “intoxicated” wanting to resume the relationship and there was an occasion when she and a friend consumed amphetamines leaving him to care for Z. He then left only to have the mother advise him that the police and the Department had come to take Z. In his evidence, the father said that this all stemmed from a report to authorities by his sister from whom he is now estranged.
Disconcertingly, the mother knew of what was happening because she said they discussed the issue of the involvement of the Department of Human Services. She said:
[55]I made some very poor decisions in allowing (the father) to stay at my place and to spend time with Z. I thought that my actions could save (the father’s) life. (The father) told me that I was the only person that he could ever turn to all his life, and that when we separated he had tried to kill himself. (The father) said he tried to kill himself when he thought that we could no longer be together.
The admission of the mother not only in terms of her knowledge about the father’s drug usage and access to exploitative material was quite alarming in the context of the fact that he had endeavoured to take his own life.
It was the mother’s evidence that the father said that no-one was coming between he and Z and although she had “three beers over dinner” when he threatened to take Z away, she felt powerless and “caught in a nightmare”. On the following morning, the Department of Human Services and police came to her house and then ultimately took Z away from her. This was on a protection application whereupon interim accommodation orders were made on 19 October 2010 placing Z with his paternal uncle and aunt. That brought about an application for an intervention order made by the mother against the father.
Only some days later, a new interim accommodation order was made placing Z with the maternal grandparents with whom the mother was permitted to live. However, the Department decided that Z was not to have any time with the mother unsupervised.
The Department took the view that parenting orders were necessary for ongoing care of Z and both parties were encouraged to get advice. The Department then became involved in a number of investigations through 2013 and thereafter. All notifications were closed at the intake stage. The basis of that was that there was no information to suggest that Z was at risk of harm. After 2013, the maternal grandmother came to be the supervisor of the contact.
In 2016, the Department became aware of the police locating the 10,000 adult pornographic images including eight of which were “thumbnail child pornography images”. The fact that the father was being supervised by the grandparents satisfied the Department such that no intervention was deemed necessary to cease the father’s time with Z despite these new allegations.
In July 2017, the Department became aware of a report about an incident between Z and his father in a swimming pool brought to their attention by the grandparents. The Department’s approach was to indicate that the matter had to be dealt with by the “family law court”. Again Z’s time rolled on.
It will therefore be seen that there is a long history of involvement by the Department. It is unnecessary for me to set out their views because albeit the evidence was contained in their report, I have had the advantage of a much more intense examination of the parents and the expert evidence. Suffice to say, the Department took the view that there should not be “unsupervised contact” between the father and Z until he was of an age where he could be informed about his father’s offending and develop an ability to self-protect and could make an informed decision about such contact. In my view, there is much to be said for that cautious approach. That approach was adopted by the Department because their assessors concluded that:
·    The father acts opportunistically, when he thinks he can get away with something;
·    Given Z is unaware of his father’s sexual offending, and is too young to be told, and the father has demonstrated through his pornography choices that he has an interest (both sexually and violently sexual) in children of all age groups and genders, including as young as one year old, unsupervised contact would place Z at risk of abuse or being exposed to abusive actions/thinking/material that would adversely impact on his emotional and social development, which could be harmful to his identity formation and mental health;
·    Z’s age is a vulnerability factor which increases the risk of sexual harm posed through unsupervised contact with his father; and
·    Z’s current ignorance with respect to this father’s offending protects their relationship but exposes him to risk with respect to capacity for self-protection.
Each of those matters is examined in these reasons and I find there is a basis in the evidence to accept all of them are concerns about which the court should be cautious. The position of the Department of Health and Human Services in relation to the protection of Z is a different issue to determining what I am obliged to consider in terms of the best interests principles in the Family Law Act. However, for the reasons I have already set out earlier, s 60CC(2) requires the court to examine the two primary considerations and to give greater weight to the protection of Z in the event of a conflict. For the reasons that follow, I accept that there is such a conflict between the right of Z to freedom of a relationship with the father and his right to be protected.

The mother’s evidence

Although she was the respondent, it is helpful to consider the mother’s evidence first. She was not challenged about the background and cross-examination focussed on her current attitude to any relationship between the father and Z.
Despite having sat through three days of evidence, the mother maintained that the relationship between Z and the father should be terminated and that there should be no contact. The mother has not spoken to the father for about eight years and she saw no prospect of that changing in the foreseeable future. She has not been involved in handovers of Z to the father.
The background leading to the father being charged has little relevance apart from some context. The mother and the father were using drugs together and both working in paid employment earning good money. Much of that money seems to have been wasted according to the mother. They participated in what was described as “the party scene”.
After becoming pregnant with Z, the mother stopped drug use but the father did not. She knew what he was taking. She also knew he was watching pornography but had little to do with his activities because as Z grew, she said that she was concerned with his care. However, she was also drinking alcohol constantly and heavily to the extent that she conceded that she was often affected.
The mother described the father at that time as being aggressive but not necessarily violent. There were lots of arguments. She was intending to end the relationship as a consequence. That became unnecessary because the police intervened over the child exploitation material. The mother maintained that now she is no longer consuming alcohol and has been attending Alcoholics Anonymous for five to six years. That evidence is supported by the maternal grandmother.
The mother described Z as having his own psychologist to whom she would turn for assistance in deciding when he was ready to be told about his father’s background. As for any relationship between Z and his father, the mother appeared hesitant acknowledging that Z would be upset about the loss of his time with his father. She accepted that there was no separation anxiety nor excitement shown when Z spent time with his father. Again, that is hardly surprising because the responsibility for the delivery and collection, let alone supervision, of Z has always been undertaken by the maternal grandfather. The inference I have drawn is that Z has been doing this arrangement for so long now that he accepts it as a fact of life.
Unlike many parenting cases, the mother was unable to tell the court about the nature of the relationship Z had with his father because of her absence of observations of the two. That means that the evidence of the maternal grandparents is critical.

Nothing about the mother’s evidence indicated she was destructive of the father’s relationship with Z and she has been compliant with orders for his contact arrangement. She told the court that she had inquired of Z about his time but generally got little response. That is not to say that he did not enjoy the time but rather that he was distracted and/or tired by other things.
The major fear of the mother and which underpins her case is her concern about how to deal with Z when he learns (or begins to explore) about his father’s background. Her view is that it will be dealt with by the psychologist that Z is attending. If the father is excluded from the life of Z, it is conceivable that he will be angry with his mother (and his grandparents) for not telling him about these events and much depends about when all of this happens. If his father has been excluded from his life it is also conceivable that notwithstanding what anyone tells him about his father, he may go and search him out. Thus, there are inherent risks in whatever steps the court takes here.

The father’s evidence

The background of the father and his part in the relationship is far more significant than the background of the mother having regard to the fact that he was the one involved in the possession of the child exploitative material.
The father described taking drugs and he confirmed that the mother was involved as well. Because of the lack of the mother’s interest in sexual activity once she became pregnant, he obtained a computer and began to download pornography for what he described as being designed to satisfy his addictive need for sexual release at the end of what he called a “bender” from the drugs.
Curiously, despite when interviewed by police, he admitted a long history of heavy drug abuse, he has no criminal history of drug-related offences. He was charged with driving offences but none of them seem to relate to drug use. The learned magistrate who sentenced him in 2010 required him to submit for drug and alcohol addiction assessment. Thus, up until 2009, both parents had a dangerous lifestyle that was hardly child-focussed and it is not surprising that the Department of Human Services were involved.
Listening to the father, there would be a temptation to say that his relationship with the mother had changed with the pregnancy and the birth of Z whilst he continued to heavily use drugs and that he just slipped into viewing pornography for the purposes of a distraction. However, on his own evidence, the computer was specifically purchased and he knew that he was downloading pornography. His explanation for that was to satisfy his “addictive need for sexual release at the end of a bender”.
To be clear, it is not against the law to view adult pornography and the court well understands that there is a significant amount of it in the community. The dilemma here lies in the fact that the father concedes that he went into that genre to satisfy a sexual release and that it became addictive. Combined with the use of drugs, that led to entry into the offensive material. Whilst he is no longer taking drugs, as is evident by his presentation of the results of a hair follicle test, he is still using pornography and has not obtained any specific psychological assistance to deal with what even on his own words, is an addiction. That alone creates a risk to Z in his father’s care without formal supervision because the addiction could lead to the father spiralling into the worst part of the pornography industry or indeed a return to the use of drugs. Absent some indication as to how, if at all, the risk of the father returning to those days can be prevented, Z would be at risk of being exposed to the side effects of drug usage and viewing pornography.
The father acknowledged that in viewing pornography, he “slowly became desensitised” when he was viewing it for many hours at the end of each of the drug “benders”. His explanation for venturing further into that mire was that he found it increasingly difficult to become aroused so he started to look at the more “depraved pornography” as he called it. He said that he had an anxiety disorder at the time and that his “obsession” explained why he began to search for sites that allowed him to download and save material even though he maintained he did not necessarily view it. He kept searching for different kinds of pornography. My concern is that none of that has been addressed but if it has, the evidence of his psychiatrist (if that is who he is seeing) was not presented.
The father is currently taking prescribed medication but also drinking alcohol and he said that his medical practitioner is currently searching for something to change the regime of medication. The absence of that evidence is also troubling because it is not clear whether, if in a state of anxiety or indeed despondency arising from the fact that he is a registered sex offender for life, he would not revert to the use of the drug and/or drink an excessive amount of alcohol.
The father readily acknowledges that he was watching the “most disgusting sexually motivated materials” he could imagine. There is no dispute that whilst he maintained that he downloaded much of this material, he did watch at least some of it. It will be remembered that he said the purpose of watching this material was for sexual release and that is concerning. It might be encouraging that he was sentenced to imprisonment in the first place and under sentencing principles, apart from the community reflecting its abhorrence as a component of general sentencing, the specific sentence might be designed to deter him from a repetition of like behaviour. It is very concerning here that specific deterrence has not been successful having regard to the three breaches of his reporting conditions. Each may be considered to have nothing to do with possession of child exploitative material but they show scant regard for the serious obligations upon the father imposed by the law. Both the father and indeed his brother Mr B to whom I shall refer in a moment, seem to indicate that he had made mistakes or had not understood the serious nature of his obligations. I have sufficient doubts about those explanations to reject them. Whilst the first mistake might have been understandable, the second and third were not.
When arrested, the father made full admissions (albeit he said that he was under the influence of amphetamines) but thereafter, the determination by the court was not until a year later. During the intervening period, the matters to which I have already referred in relation to the involvement of the Department of Health and Human Services, the father’s brother’s initial care of Z and then the handing over of that responsibility by the Department to the maternal grandparents all occurred. In addition, Z’s relationship with his father continued during that period albeit under supervision. Further, as is now known, the mother was engaged in attempting to resolve her alcohol addiction.
During that same period, the father endeavoured to take his own life. He took sleeping tablets and then tried again with a combination of tablets and alcohol. He tried a further time some weeks later using a vacuum hose to send exhaust fumes into his car and consumed sleeping tablets at the same time. He attempted to hang himself from a tree but was unsuccessful. He cut his wrists and attempted to drown himself. He consumed 80 paracetamol tablets and was admitted to hospital when the mother found out and called an ambulance. The admission to hospital caused the hearing of the charges to be adjourned.
I have set out the sentencing details but these facts put the issue of risk in some context. The question for the court is whether or not the repetition of all or even part of this sort of conduct may reoccur.
Immediately after being sentenced, the local newspaper reported the event using a headline that could be seen as attention grabbing, and identified the father by photograph.
It will be readily seen that in addition to the retribution imposed by the law, the father has now been publically targeted as a risk to the community regardless of the extent of the offence. I make no comment on whether that is appropriate but it remains to be seen just how much access to that sort of information Z may have.
Around 2017, the father’s time on Skype which had been organized by the maternal grandmother was reduced and it would seem the father also wanted to increase his face to face time. Despite the role that the grandparents had played and by this time, specifically the maternal grandmother, the father took a dim view of the grandparents. That arose in cross-examination when he was asked about his attitude to the grandparents and he replied that he thought his relationship with them was good until he read their affidavits. Those affidavits were filed in April 2018. Each document to which I refer in a moment was historical. The father’s view, as bluntly articulated in evidence, was that the grandparents had told blatant lies and that they did not believe what they had said. He went on to say that he did not believe that they were the “authors” of the affidavits. For the reasons to which I turn when I deal with their evidence, I agree that those affidavits are not helpful at best and at worst, misleading. I am not entirely sure that I can blame the grandparents for that.
The father’s evidence was that otherwise, he had a very good relationship with Z and they had a lot of fun together. He described Z as warm and chatty with him and openly enjoying the interactions and activities. Having regard to one incident that occurred by Skype, I am more inclined to believe the perceptions of the grandparents about the nature of the relationship rather than the subjective views of the father.
In relation to their interaction, the father described Z as climbing over him and cuddling up to him. He described their meetings as occurring where Z either walked or ran to him with his arms out and he picked him up and gave him a kiss on the cheek close to his ear and hugged him. He described Z as fidgeting and off doing his own activities.
In respect of the conversations between father and Z, the father acknowledged that the grandmother prompted Z to tell him certain things when he asked. He said that he engaged Z in things that he wanted to talk about or instigated things that he thought Z might be interested in. Again, the fact that he needed to do that is symptomatic of the absence of the father from Z’s life for so much of his childhood to date but also the fact that his parenting skills and capacity to relate to Z are limited. That is not a basis to reduce his time or to restrict it further. As family consultant Ms F said, the father is a very important figure in the life of Z.
There was one incident which the grandmother described as troubling. On its face it was an ugly incident in which Z made a remark about the fact that when he grew older, he would not have to see his father. The grandmother said that it came out of a discussion about ancestry. This occurred in November 2015 when Z was seven years of age. The grandmother said that the father reacted in an angry manner and the episode seemed to upset Z. She said he had tears in his eyes and was upset on the way home. Curiously, she did not intervene to terminate the contact relationship notwithstanding she was the supervisor but in any event, the contact continued for the ensuing years. These incidents were highlighted in the affidavit but were not contextually clear. I do not intend to give that specific incident any weight bearing in mind that the family consultant had an objective opportunity to view the nature of the relationship between Z and his father much more recently and there is no clear indication of a repetition.
The father would like to take Z to the agricultural show and that idea was specifically put to family consultant Ms F. She thought that was not appropriate because of a number of issues. She referred to the fact that supervision would be difficult and (although remote) there was the possibility that the father might abscond with Z. Whilst the court is obliged to make an assessment of risk, I do not consider any of those to be a problem providing the supervisor is someone who clearly understands the role and is vigilant of the need to protect Z from both physical harm and inappropriate statements that might have some psychological impact upon him.
Thus, the father’s position is as I have earlier outlined it namely that he should have unsupervised time.

The grandparents

Ms G and Mr G are the maternal grandparents. Mr G is 72 years of age and his wife 70 years. They have had a significant role in the care of Z since he came into their direct and indirect care shortly after the Department of Health and Human Services stepped in around 2010. Nothing about their evidence would indicate that they have anything other than a very strong love for Z and each would do anything to protect him. They have ensured the relationship with the father has continued. Without that, the father could not have had that relationship with Z. Both grandparents however indicate that they want to cease that role. In my view they are entitled to that view.
The only difficulty with the evidence of Mr G was that his affidavit filed on 20 April 2018 contained considerable opinion and even language, that when cross-examined, he did not entirely understand or support. Some examples will suffice. Mr G observed that generally upon arriving to deliver Z, the father smothers him with kisses and carries him for a while. The only inference that could be drawn at first reading of that assertion is that this was sinister. Mr G, whom I found as a calm, thoughtful and honest witness, told me that that was not what he intended. He said that he gave all of these facts to the lawyer who put it all together in an affidavit for him. He felt that the conduct of carrying a ten year old and giving him many kisses was “odd”. He acknowledged that from the generation from which he came, that was not done. He reassured me there was nothing sinister about it. The only conclusion one could draw from reading his affidavit was the exact opposite. In my view that is not the fault of Mr G.
A second incident and upon which considerable focus rested during the hearing, related to what happened in a swimming pool. In his affidavit, Mr G said that on an unnamed date, the father “approached Z as Z was floating on his back and allowed Z to wrap his legs around (the father’s neck)”.
The affidavit went on to say that the father’s face was positioned at the crotch of Z and he made mention of the fact that Z looked at him and he shook his head to indicate that this should not be happening.
This too was the subject of cross-examination as to its sinister connotation. The grandfather was quite candid in indicating that this was in a “wave pool” and Z was lying on his back whilst the father was standing in the water and the child floated into him with his legs apart and crashed into the father’s neck such that his head was at the same level as the crotch of Z. Despite saying that Z looked at him and he shook his head, the grandfather told me there was nothing sinister about this incident either having regard to the nature of the pool or the way in which Z was floating in the water. There is little doubt that the inference to be drawn from the affidavit was quite the opposite.
Another example was that in his affidavit, the grandfather said that he had to prompt Z repeatedly to get him to go and see his father. The obvious inference to be drawn from that statement was that Z was reluctant to go but that was not the evidence of either the mother or indeed the grandfather himself. Z is ten years of age, easily distracted but there is no suggestion that he did not want to spend time with his father.
The grandfather also said that during the visit, Z would “continually fidget” and did not keep still. One example given and not necessarily arising out of that particular statement was that when Z arrived at the play centre, he wanted to run off but his father restrained him and made him eat before he went to play. Both grandmother and grandfather acknowledged that this was really what was happening with this child. Nothing sinister would be drawn from knowing the full facts here and indeed, the grandfather agreed.
Although the affidavit material at first blush would suggest otherwise, the grandfather assured me that he did not mean what was clearly the inference open without further explanation. In my view, this evidence was misleading and unfortunate and it explained the father’s view that the document was not “authored” by the grandfather.
Evidence by the grandmother about the relationship was not overly critical of the father as to anything sinister but rather, a reflection on the father’s incapacity as a parent. That can be seen in a Skype incident. Z had had a long day and had previously been playing football on the sportsground where his favourite team had been playing. Part of the experience is that at the conclusion of playing the game during the break in the football, the children lined up to see their heroes run onto the ground and were able to give them “High Fives”. Z bubbled over with enthusiasm about this exercise and, in the Skype conversation with his father, whom the grandmother indicated had no interest in football, Z endeavoured to tell his father but the grandmother’s view was that he was not particularly interested. Rather than be critical of the father for lacking interest, the grandmother suggested that it was more a lack of understanding of what to do. She conceded that with the limited role that the father had had in Z’s life, it was unsurprising that he did not know how to keep these conversations going. Clearly, the father had to learn about Z’s like and dislikes and although as I have already indicated, the father said that he understood what interested Z, it is quite clear that that is an example of his limitations. That too along with all of the concerns raised by the grandfather, are not bases to cut the father out of Z’s life.
I was helped by the grandparents who gave probably the most cogent evidence of all the non-professional witnesses in this case about the nature of the relationship between the father and Z and most importantly, its importance to Z. In terms of supervision, whilst each of the grandparents would strongly advocate that the time should never be unsupervised, they did not see the father as being a physical risk to Z. They saw the father as angry at times but in my view, those were not matters that could not be adequately controlled by supervision.

Mr B

Mr B is the father’s brother. He filed an affidavit which was so extraordinarily brief that one had to wonder about its probative value. He said that he was willing to be a supervisor for four or more hours per fortnight to coincide with his work commitments and he expected his children would frequently be present as he was separated from their mother. His children spent time with him. To explain his offer of supervision, he said that his brother’s solicitor had provided him with a brochure about whether he should help with supervision and he understood its contents. Then he said he understood the duties and responsibilities of a supervisor. That evidence was unhelpful because it was rhetorical.
I am satisfied that after questions I asked, Mr B understood the problem. It was certainly not clear from his affidavit that that was the case. He knew of the nature of his brother’s charges, the drug usage and the subsequent breaches of the reporting conditions. He seemed to minimise his brother’s role in the breaches of the reporting conditions. He tended to describe those as being mistakes arising out of his brother’s misunderstanding of the obligations. I do not accept that.

Other issues

One final matter that needs mention is that Ms E raised the issue of the father’s drug dependence and Ms F expressed concern about not knowing any results. The father has produced a hair follicle test which shows no drug usage. The father offered to undertake that every 3 or 6 months and provide the results to the mother. In my view, those are matters that relate to trust and the court should not need to be called in to force those things to be done. If the father was serious about re-establishing some form of co-operative parenting, he would do all of the things that set the ground for that to occur. I do not ignore them for the purposes of these reasons but simply posit my question as to why that needs to be offered now.
I find the orders are in Z’s best interests.

I certify that the preceding One Hundred and Seventy Four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 June 2018.

Associate:

Date: 15 June 2018

[2018] FamCA 1147

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing