JAHODA & JAHODA (No.2)

[2019] FCCA 107

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAHODA & JAHODA (No.2) [2019] FCCA 107

Catchwords:
FAMILY LAW – Parenting dispute – convicted paedophile father seeking to spend time with 5 year old child – whether father represents an unacceptable risk – competing expert views – experts expressing views unfavourable to father not required for cross examination – finding that father minimises his past conduct – risk unacceptable in child’s best interests – orders for no time but father to send cards and presents by agreement.

Legislation:

Family Law Act 1975 (Cth), s.60CC(2A)

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR JAHODA

Respondent: MS JAHODA

File Number: DGC 3431 of 2017

Judgment of: Judge Burchardt

Hearing dates: 7, 8 & 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Dandenong

Delivered on: 24 January 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Grant

Solicitors for the Respondent: Featherbys

Counsel for the Independent Children’s Lawyer Ms Boymal

Solicitors for the Independent Children’s Lawyer White Cleland

IT IS NOTED that publication of this judgment under the pseudonym Jahoda & Jahoda (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3431 of 2017

MR JAHODA

Applicant

And

MS JAHODA

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introductory

1. In this case, the applicant father seeks to spend time with his son, [X], born … 2013.  For reasons which will become apparent, what he seeks is a very gradual process of reintroduction to his son, whom he has not seen since over a protracted period of time since at least 2016.  The respondent mother seeks that the father is to spend no time at all with the child.  The Independent Children’s Lawyer broadly accepts the mother’s position but does support the sending of appropriate cards subject to important qualifications.

2. The central issue in the case is whether the father is a risk to the child bearing in mind that he is a convicted paedophile.  He says he is not, and is supported by his treating psychologist, Dr A.  For the reasons that follow, I do not agree.

3. While this will be a devastating decision for the father to confront, it is clear taking the materials as a whole that it is not in [X]’s best interest to see his father.

Agreed or Uncontroversial Matters

1. Much of what is agreed or uncontroversial in this case can be taken from the first affidavit filed by the father on 26 October 2017.  The father was born on … 1973.  He was then employed as a professional but lost that job when his prior convictions came to the attention of his then employer.  He is however in employment now having commenced work in … 2018.  The mother was born on … 1974 and is a professional.

2. The father had an extremely damaged upbringing but the mother and he met at high school in 1989 and started cohabitation in 1993.  They married in 1999.  For a period of some nine or ten years the mother’s brother-in-law, Mr B, lived with the couple.  His children – Ms D and younger son [E] – lived with them for almost all of that time.

3. On 19 April 2013, the father pleaded guilty to three counts of an indecent act with a child under the age of 16 years and one count of sexual penetration of a child (Ms D) under the age of 16 years.  He served 18 months in gaol, during which time he was himself sexually assaulted.  He was released after serving 18 months in prison but on … 2016 was convicted of a threat to seriously injure the mother and a breach of parole.  This was as a result of a text message that he had sent her.  Because of his breach of parole he served a further 12 months in prison and was released on … 2017.  He is on the registered list of sex offenders for life.

4. Owing to an omission on the part of the Department of Health and Human Services (“the Department”), and an ignorance on the mother’s part of what her true obligations were, the father spent a certain amount of time with [X] from his release from gaol on … 2014 until the Department became involved in November 2015 as a result of information from the Sexual Offender’s Register interview with the father.  His time then ceased and he has spent very little time with [X] since.

5. The time [X] spent with the father in 2014-2015 is the subject of some dispute but on any view of the matter it involved some overnight unsupervised time.

6. In March 2016 the father sent the mother a message showing a knife sticking in a man’s back with the words carved in his back, “I’ll slit your throat with the knife you left in my back.”

7. In June 2016 the father attended the mother’s place of work in Suburb F in contravention of an Intervention Order and was arrested.  As earlier indicated on 27 June 2016 his parole was cancelled and he served a further 12 months.  He pleaded guilty to threat to seriously injure and breach of parole.

8. The father lives in a two bedroom house where his mother has recently relocated from the Northern Territory where she has lived for many years.

9. The mother and [X] live with the maternal grandmother, Ms C, and her partner Mr G and have done so for some years.

The Parties’ Affidavits

1. I have largely traversed the father’s original affidavit in the agreed matters stated above.  I should note however that at paragraph 13 he had stated:

   “I am deeply remorseful for what I did to Ms D.  I have so much remorse that I have trouble sleeping most nights.  The guilt eats me up every single day and I will have to live with this for the rest of my days and that is my burden to carry.”

2. The father also deposed, perhaps unsurprisingly, to what he perceived to be a very unhelpful interaction with the Department.

3. The mother’s first affidavit filed 11 December 2017 repeats details of the party’s relationship and, most importantly, the offending with Ms D.  I note that the mother deposes to the father in 2012 seeking to delete a video he had taken of Ms D with no clothes on.  She later questioned the father about this and annexure J-1 relevantly states:

   “Here it is, the video was wrong I know but I only did it to see why she was taking so long in the bathroom, it was not sexual

   
   

   I did not get off on it I deleted it straightaway in the iMovies and I thought that would get rid of it, I then deleted it again in iPhoto when I found it there also deleting photos of you, which by the way I was masturbating over you not anything else maybe the occasional porn when you were never in the mood but it was mainly you, then when you have it was in files sorry I didn’t think it would go to all those areas but it does I now know that, yes, I shouldn’t have done it but I was frustrated and wasn’t thinking straight just the same as the other stuff.  I’m not into kid stuff never have never will and if I was you would have known a lot earlier and found heaps of stuff from what I understand of pedos.  That’s the truth of it all.”

4. The mother deposed to the father’s relationship with [X] during his time in gaol and the time that took place unsupervised following his release between November 2014 and October 2015.  As the mother put it she often supervised.

5. Following Department intervention in late 2015, the father did not see [X] between December 2015 and February 2016.  Shortly after that however the father’s behaviour became concerning.  Various SMS messages are set out at paragraph 38 of the affidavit and point to significant mental health difficulties on the father’s part.  On 10 March 2016, he sent an SMS to the mother, relevantly, in these terms:

   “Just to add to my message yesterday I did also think that you were seeing some one [sic] else, I know that wasn’t the case but they are the types of things going my head at the time.

   Just heard on the radio, a female with a similar of offence as me, but she had actual sex with the boy only got a two year probation and only fifteen years on sex register, I guess it depends on the judge you get on the day as to whether your life is going to be fucked or not.

   Or what gender you are.”

6. Additionally the father sent the mother very offensive text messages in late March 2016 including a photo (part of the annexure J-3) of a man with a knife in his back and the words:

   “I’ll slit your throat with the knife you left in my back.”

   And further texts:

   “I worshipped you and all you did was look out for yourself and your family and never gave a fuck about me and it’s obvious

   
   

   it’s still how you think so fuck you and your family, you will pay for back stabbing.”

7. On 7 April 2016 the father SMS’d the mother, “How’s this fair, did worse than me and then didn’t go to jail.”  On 24 April 2016 he sent again the message with the man with the knife in his back, and a further text saying:

   “Just a reminder you will all get what’s coming.”

8. As earlier indicated the father attended the mother’s workplace in June 2016 and was arrested, and an Intervention Order was made on 8 June 2016 on an interim basis and a final one on 27 June 2016 for 5 years.

9. The mother went on to depose to her concerns about the father’s mental health.  She annexed as J-6 correspondence from the Department dated 1 September 2017 which relevantly asserted:

   “Discussions have occurred with Mr Jahoda regarding his request for contact and the department’s current assessment.  It is assessed that [X]’s risk of being harmed, experiencing

   
   

   or been exposed to family violence remains significantly high,

   
   

   if he was to have contact with Mr Jahoda.”

10. The mother deposed to her application for divorce filed 22 June 2017 which became final on 28 October 2017.  The mother set out SMS’s sent by the father to his own mother at paragraph 63 of her affidavit which in effect speak for themselves.  They show an incapacity on the father’s part to accept the end of his relationship with the mother, and it would seem to me to amount to a suicidal ideation.

11. The father’s next affidavit filed 3 April 2018 attests to his difficulties in obtaining supervised time because he is on the Sex Offender’s Register.  He took issue with the extent of time he had spent with [X] when it was unsupervised, and detailed an occasion when he had been irritated with him.  He deposed that he has not drunk alcohol since 6 June 2016.

12. The father’s final affidavit filed 24 October 2018 essentially details his interaction with the various professionals that the Court had required.  He deposed to a significant setback in March 2018 but deposed to having recovered well from it.  He deposed to having made good gains in his mental health since May 2018 and that he was still abstinent from alcohol.  He deposed to his regular sessions with Dr A whom he sees once per month.

13. He deposed that he had now moved away from the employment industry and worked for a … company.  He had commenced work on … 2018 and it was going well.  He had now moved to a large two bedroom house with a large backyard and his mother had recently moved back to Victoria from the Northern Territory, and lived with him.  He deposed to loving [X] very much, and missing him every day and that he would never hurt him if he was in his care.

14. His mother, Ms H, and sister, Ms J, both filed what in essence were supportive affidavits.  They were not required for cross-examination.

15. The mother’s trial affidavit filed 24 October 2018 takes issue with the father’s remorse.  At paragraph 10, she detailed documents subpoenaed from the Department whose file note dated 15 December 2014 (not the subject of challenge) asserts:

    “(i)    Quoting Mr Jahoda “it was a need for contact, Ms D was coming into the room and getting into bed with me, so at that point someone cared for me and loved me, yes she was a child but I knew it was wrong and it was not sexual, I never went away and masturbated.”

    (ii)     RSO rubbed victims vagina which suggests sexual.  RSO indicated it did not start like that, she was getting into bed with him.

    (iii)   She would rub her vagina up and down his leg and arm.

    (iv)    RSO indicated lots of difference between a 7yo and a 9yo.  RSO agreed still a prepubescent child.”

16. The Department reports also record:

    “Ms K advised that Mr Jahoda had distorted beliefs about victims age, that she came onto him, that the victim was sexually attracted to him.  Mr Jahoda admits that he planned the offending for when his wife was out, that he didn’t have the will power to fight the sexual attraction.”

17. The mother also quoted from case notes subpoenaed from Dr A in the following terms:

    “(a)   24 November 2014:

    “Offending involved Ms D rubbing herself on his leg and then have him rubbing her with his hand.  It sounds

    
    

    as though Ms D had significant behavioural and boundary problems.””

18. Otherwise the affidavit is essentially a rehash of areas of disagreement with the father’s earlier materials and offers commentary on the reports of Dr L and Dr M.

19. Ms D also filed an affidavit on 24 October 2018.  She deposed to living with the father and mother from about the age of four.  The first instance she can remember is when she was about 6 or 7 years old.  At paragraphs 7-8, she deposes:

    “7.    There were numerous incidents of abuse which occurred in the following approx. 7-8 years.  The frequency of the abuse varied.  Sometimes the abuse occurred up to 2-3 times per week. Other times it was less frequent.  I estimate that the abuse occurred on over a hundred occasions.

    8.  I did not tell anyone about the abuse as, when I was about

    
    

    9 years old and realised what Mr Jahoda was doing was wrong,

    
    

    he said words to me to the effect, “if you tell anyone I will kill you.”  This was during one of the incidents of abuse.”

20. Ms D also denied entirely the versions of events recorded in the mother’s affidavit taken from Department’s notes which suggested that she might have been the instigator of the sexual conduct concerned.

21. It should be noted that Ms D was not required for cross-examination.

22. The maternal grandmother, Ms C also filed an affidavit on 24 October 2018, but she was not required for cross-examination and her affidavit is essentially supportive.

The Professional Reports

Dr L

1. Dr L assessed Mr Jahoda on 28 March 2018.  He had recorded a deeply traumatic childhood on the father’s part.  At paragraph 15 Dr L recorded the following:

   “Ultimately, the relationship ended as there were four incidents

   
   

   of sexual abuse with Mr Jahoda’s niece Ms D, over a period

   
   

   of five years, with the first incident being when she was aged 9, the second being when she was aged 11, the third when she was aged 12 and the fourth incident when she was aged 13.  He was accused of penetration but there was genital contact although the nature of the sexual touch will be determined by the charges and convictions.  His account is that this occurred over a period of time when he was very depressed and the relationship was poor and that he was often not going to work but was spending time caring for the children.  There appears to have also been boundary difficulties.  It would appear that there was grooming and although he indicated that he is aware that it was wrong,

   
   

   it is clear that there is some cognitive distortion.”

2. I note that the father described a long history of depression first diagnosed when he was 11 years old.  The husband was suicidal in 2012 and again in 2017 when he was served with the divorce papers.  The diagnosis was of major depressive disorder, personality disorder with borderline features.  I note that a test under personality evaluation under MMPI-2 was invalid as a result of the answers given.

3. Dr L also assessed Mr Jahoda pursuant to the FSNA (Family Strengths and Needs Assessment Tool).  It is sufficient to note that the risk of general parental risk factors was held to be high.

4. Dr L also assessed the father pursuant to the Risk for Sexual Violence Protocol (RSVP).  I note that the assessment assumed that the child, Ms D, was aged between 9 and 13 years at the time of the offending with only four incidents.  At paragraph 35, Dr L reported under the heading “Summary”:

   “It is likely that sexual risk should be estimated at least

   
   

   at Moderate and possibly Moderate-High considering the constellation of risk factors, considering the nature of the previous offending and the difficulties in each of the areas identified, with sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability, all having significant risk issues.  It is likely if there was to be sexual offending again, it would be within the family and it is not impossible that he could offend across gender.  A sex offender program has not been undertaken as this was not offered in prison.”

5. Dr L went on to set out his conclusions, and I note that at paragraphs 42-43 he recorded:

   “42.  Mr Jahoda continues to suffer from a Major Depressive Disorder along with a personality disorder.  He has had suicidal ideation, with three attempts at least and this represents

   
   

   an ongoing risk factor.

   43.    Psychosexual evaluation by the RSVP, rated Mr Jahoda’s risk of re-offending at least at Moderate, in part, due to the combination of multiple factors that are relevant in this case. 

   
   

   It is likely for this reason that time with the child should

   
   

   be supervised.  More general parental risk is estimated at High risk via the FSNA.  The amount of time should be recommended by a family report writer.  It is appropriate that the relationship between the father and the child be supported and developed, however Mr Jahoda has significant difficulties with his mental health functioning.”

The Report of Dr M

1. Dr M met Mr Jahoda on 26 April 2018 to perform a psychiatric assessment.  He was aware of the reports of Dr A to which I shall return.  He noted that Mr Jahoda has suffered depression since childhood.  He noted that the applicant’s account of the offences was as follows (page 9 of 17):

   “He would take her for trips in his truck to the local tip, etc. and Ms D sought him out, resulting in the four incidents of abuse.  Mr Jahoda said that Ms D would jump into his bed and rub up and cuddle against him, “and I rubbed back three times’.  On the fourth and final incident, he denied there was penetration but acknowledged that he had placed his hand underneath Ms D’s underwear and pleaded guilty to same. He told me that following this he was horrified and no further contact with Ms D occurred.”

2. I note that Mr Jahoda had not been required to undertake a sex offender program in gaol following the interview by ForensiCare.  Dr M likewise noted Mr Jahoda’s terribly unfortunate childhood and his ongoing treatment with Dr A. 

3. At page 16 of 17 of the report, Dr M recorded:

   “3.    At interview Mr Jahoda was self-disclosing and appeared genuinely remorseful in regard to the offending and the more recent behaviours directed towards Mr Jahoda.  His Attachment Disorder/Borderline Personality Disorder has made it difficult for Mr Jahoda to let go of his marriage and feelings towards Ms Jahoda but at interview, impressed as having accepted that their marriage is over.”

4. At paragraph 5 on the same page Dr M recorded:

   “Dr L (10^th April 2018) assesses Ms Jahoda as being at least moderate and notes that he continues to suffer from a Major Depressive Disorder along with a Personality Disorder with ongoing suicidal risk, and recommends his amount of time with [X] should be supervised with general parental risk being estimated as high (via the FSNA), and the amount of time should be recommended by a Family Court report writer.  The relationship between father and child should be supported and developed, noting however that Mr Jahoda has significant difficulties with his mental health functioning.”

5. The report continued at paragraphs 7-8:

   “7.    Having assessed Mr Jahoda and in keeping with the psychosexual assessment of at least moderate risk, Mr Jahoda’s ongoing contact with [X] should be supported and conducted under supervised circumstances with timely reviews of the contact process by a qualified Clinician.  Ongoing psychiatric treatment is also considered necessary.

   8.  I have not seen Ms Jahoda or [X] and the report needs to be read accordingly.”

1. It should be noted that in every interview with anybody involved in the proceeding, the father has always expressed his love for [X] and a total denial that he would ever harm him.

The Family Report of Ms N

1. Ms N conducted interviews with the parties in October 2018 and her family report, which she adopted as exhibit A1 is dated 30 October 2018.  Ms N initially set out the background which is consistent with the materials already described.  She noted that the father now lives in a home with his own mother who is 62 years of age.  The mother lives with her parents, Mr and Mrs G, and is a tradesperson but was not presently working because of the stress of Court proceedings.

2. The report notes the competing positions of the father and mother and noted the issues that the parties had raised.

3. At paragraph 28 the report noted:

   “Mr Jahoda attended.  He presented as sorrowful and at times frustrated.  He explained that he was ‘not angry, just frustrated’ at times with his situation that seemed hopeless.  He expressed

   
   

   a view that he had lost trust in all the systems and organisations such as the Police, DHHS and the Courts.  Although he had ‘done the time for the crime committed’, he was treated

   
   

   as ‘scum’ from everyone.  He could not understand or accept how the DHHS had first allowed him to have unsupervised visits and then enforced supervised visits and finally recommending no visits at all as the best option.”

4. At paragraphs 31-32, the report noted:

   “31.  When the writer confronted him about the need for the safety issues to be balanced with the risk factors of a case,

   
   

   Mr Jahoda reported that he had never hurt his son physically, emotionally or sexually or exposed his son to family violence.  He conceded that on one occasion in the past, he had raised his voice to his son, when [X] was having a terrible tantrum wanting to return to his mother’s care.

   32.    Speaking about a supposed comment made by the DHHS officers that he did not show remorse for his past criminal behaviour, the father tearfully stated ‘I regret is so much. 

   
   

   I regret everything I did in those 18 months, between the first and second imprisonment.  I get kicked to the ground again and again.  I hate myself for what I did.  I have no life, no friend and no family.  How else do they expect me to show remorse?’”

5. I note that the father blamed the presence of the Mr B family in the household for the end of his relationship with the mother.  At paragraph 39 the report noted:

   “Mr Jahoda reported that he had no premeditated plan to sexually abuse Ms D or had never groomed her.  He explained that Ms D was in the habit of jumping in his bed for cuddles and rub against him and he stated that ‘I took it too far.’ 

   
   

   He admitted that he had touched, rubbed her body in a sexual way.  Mr Jahoda stated that he did not have genital to genital contact with Ms D and there was no sexual penetration, although he was accused of it and had pleaded guilty.  Mr Jahoda shared that he had touched her vaginal area by placing his hand on top of her underwear.”

6. It should be noted that this is inconsistent with his admission that his hand was under her underwear previously.

7. The report then goes on to detail the interview with the mother.  She gave details of the relationship with the father including his allegedly controlling behaviour.  At paragraph 50, the report noted:

   “Ms Jahoda was deeply upset and distressed speaking about her fears that she would fail to protect [X] from being harmed in some way by his father in the future years.  She cried, making comments such as ‘Mr Jahoda is emotionally not stable.  He needs to get real help.  He just tells people what they want to hear. 

   
   

   I don’t want him to see [X].  But I am not winning either way.  He is going to come after us, if he does not get [X].  I have no control over our lives.  I have to rely on the wisdom of the Court to make sure that we are safe.’”

8. [X] was interviewed in the presence of the mother and in my view the interview with him was unremarkable.  I note that when he was asked where his father was he replied promptly, “He is in jail.  Because he is bad and naughty.”  I note that this response seemed to shock the mother.

9. I note that at paragraphs 62-63, Ms N recorded:

   “62.  The other concern observed during the assessment relates

   
   

   to [X]’s developmental issues and yet undiagnosed emotional and possible mental health issues.  There is a need to obtain

   
   

   a comprehensive assessment of [X]’s cognitive, emotional and psychological capabilities from a relevant specialist

   
   

   to determine his developmental and special needs.  The future Court determination regarding [X]’s relationship with his father need to be focused on [X]’s resilience and overall needs.

   63.    During the assessment process, it seemed that [X] has

   
   

   a faint memory of his past relationship with his father and he is confused and at times conflicted about the issue of his father.  He may assume that he is naughty therefore his father does not see him and also that his father is a bad person, therefore is not allowed to spend time with him.  These are not healthy views for [X] to carry on in his psyche which is likely to become a part of his persona.  The dilemma needs to be resolved with a long-term therapy and reframing of his worldview as [X] grows older.”

10. It should be noted that there is a suggestion recorded by Ms N that [X] may be on the autism spectrum disorder.

11. The report continued at paragraph 64 and following:

    “64.  Mr Jahoda, as he says has ‘done the time for the crime’, therefore he is of the view that he should be given an opportunity to have a normal life.  This does not necessarily mean that there is a fundamental shift in his way of thinking, feeling and behaviour.  The mother is not majorly concerned that the father would sexually abuse [X] if he has unsupervised time with him.  She is more concerned about her, her parents and eventually [X]’s safety and is overwhelmed that they might become the victims of Mr Jahoda’s anger and fury as she had experienced in the past if there is a resumption of visits between the father and son.

    65.    Ms Jahoda came across as a victim that has suffered considerable emotional trauma and she is petrified about

    
    

    Mr Jahoda ‘coming after her’ and her extended family whether or not there are orders for future time between the father and son contact.  She does not believe that the basic mental health issues in relation to Mr Jahoda have been addressed and there is a genuine positive change in Mr Jahoda.  She is the primary parent in charge of delivering daily care for her son who certainly appears to have special needs.  Any further pressure on her is likely to tip the balance and if Ms Jahoda is unwell,

    
    

    it is going to be detrimental for the wellbeing of [X].

    66.    Mr Jahoda claims that he is genuinely remorseful about his past actions.  Based on his statements during this assessment,

    
    

    a lot of regret and sorrow expressed by him about his past actions seemed more focused on ‘what happened to him and what he had to suffer’ because of his past actions rather than about his victim’s pain and suffering because of his actions. 

    
    

    Mr Jahoda was also in the habit of playing the card that ‘if that and this did not happen, I would not have done this and that’ which does match Ms Jahoda’s given examples of their life together in the past and her assessment of Mr Jahoda’s personality, that he does not accept responsibility for his actions.

    67.    Further to that, in relation to his sexual abuse incidents

    
    

    of Ms D, there appears to be discounting of the problem, the extent, severity and its implications.  The writer also note that the information provided by the father about ‘the penetration’

    
    

    of Ms D is not convincing and there are possible efforts

    
    

    to confuse the issue.  This could be attributed to Mr Jahoda being manipulative or in denial of his felonies.  There are likely to be cognitive distortions and unhealthy misrepresentations.”

12. That said the report traverses, albeit briefly, the views of Dr A, Dr L and Dr M.  I note that at paragraph 72, Ms N observed:

    “It is accepted that Mr Jahoda misses his son’s presence in his life intensely and wishes to be a part of his son’s life.  Given her serious concerns Ms Jahoda prefers that father’s time with the child is suspended indefinitely.  Although that might reduce the stress level in the mother’s and [X]’s current lifestyle, it may not be the best ultimate solution, as it is likely that as he grows older [X] will ask questions about his father as he will have

    
    

    a natural curiosity to know about his father.”

13. The report went on to recommend that the child live with the mother and a regime for the resumption of time with the father in the event that the Court thought this appropriate.

The Affidavits and Reports of Dr A

1. Dr A’s first affidavit was filed on 1 December 2017.  He deposed that Mr Jahoda had been attending counselling with him since November 2014 and annexed two letters dated 10 December 2015 and 6 November 2017 respectively.  The first letter dated 10 December 2015 commences as follows:

   “I am writing this letter at the request of Mr Jahoda.  His request comes on the heels of an apparent requirement by DHS that the time he spends with his 2½-year-old son, [X], should be supervised.  This request has flummoxed Mr Jahoda as he has been spending unsupervised time with his son since his release from prison over 12 months ago.

   Before proceeding, I wish to advise you that I used to work as

   
   

   a clinical and forensic psychologist for DHS child protection in South Australia.  In fact, the reason why I am in this country is because the South Australian government recruited me from California to work for their department of child protection.

   I wish to advise that Mr Jahoda has been consulting me since late November 2014 and has consulted me on 22 occasions.  I further wish to advise that from the outset Mr Jahoda has taken responsibility for the actions that led to the guilty finding

   
   

   of indecent assault (including one charge of sexual penetration) of a girl between the age of nine and 13 years.  At no time have

   
   

   I detected any evasiveness or defensiveness when talking about these offences.  Moreover, Mr Jahoda has expressed what appears to be genuine regret and remorse for the emotional damage he might have caused to his victim.”

2. Having made certain surmises as to the lack of objection to the unsupervised time that had occurred on the part of the mother the report goes onto say:

   “I think it goes without saying that the victim profile is vastly different between the 9-13 year-old girl and [X] who is a boy of 2 ½ years.  It is also important to note when making your decision regarding future supervision that Mr Jahoda has never perpetrated any sexual offence on anyone of any age other than the aforementioned child.  This suggests that Mr Jahoda is not

   
   

   a paedophile.  It is my opinion that Mr Jahoda is a heterosexual man whose choice in sex partner is an adult woman.”

3. That letter was written to the Department of Human Services.  The second letter dated 6 November 2007 was written to the Court.  It repeated the attendance since November 2014.  The report relevantly asserts:

   “Mr Jahoda was referred to me by his General Practitioner with

   
   

   a diagnosis of anxiety and depression.  Initially Mr Jahoda was functioning poorly psychologically/psychiatrically most likely because of the extent of the regret and remorse he felt regarding his actions that led to his incarceration and subsequent legal problems.  I organized for him antidepressant medication and this has improved his mood/functioning tremendously.  The combination of the antidepressant medication and counselling has resulted in Mr Jahoda functioning at a high level.

   As already indicated, Mr Jahoda reported a great amount

   
   

   of regret and remorse for his actions with respect to the convictions of indecent acts, etc.  The extent of the regret and remorse resulted in near suicidal ideation.  His mood has improved tremendously and he is functioning at a high level despite ongoing feelings of regret and remorse; he is likely

   
   

   to experience these for the rest of his life.”

4. Dr A referred to his earlier letter to DHS and repeated his opinion.

5. Dr A’s second affidavit was filed on 24 October 2018.  It annexed a letter to the Court dated 21 October 2018.  He deposed that since his previous affidavit Mr Jahoda had consulted him on 10 occasions which were approximately monthly.  The letter says:

   “… Mr Jahoda has continued to improve since I last affirmed my previous affidavit.  For the most part, he has been functioning

   
   

   at a high level including holding down full-time employment, making plans for his future as well as managing the Family Court process including but not limited to attending for various court ordered appointments.  He has also been highly motivated in terms of his employment to earn a steady income so that

   
   

   he can achieve his goal of spending time with his son, [X].

   It is important to note that in approximately March 2018

   
   

   Mr Jahoda had a significant setback in terms of his functioning.  At that time, whilst still functioning at a high level in terms of his employment and otherwise, he became despairing about his relationship with his ex-wife and the frustration of not having

   
   

   a relationship with his son.  Mr Jahoda became distressed about his ex-wife’s behaviour in terms of divorcing him.  She is someone who he has loved dearly and perhaps is the only person he has loved.  Similarly, it distressed Mr Jahoda that his ex-wife would require that he go to great lengths to demonstrate his suitability to adequately care for and supervise [X].  It is also important to note that Mr Jahoda recovered quickly from this significant setback.  It is my view as his treating psychologist that the setback might have been necessary for him to resolve his thoughts and feelings about his ex-wife so that he can move on with his life.  This he did and he not only returned to functioning at a high level, he seemed to make even greater strides than before the aforementioned setback.”

6. Dr A then took it upon himself to advise the Court further of his background in child protection, and that he was consulted on numerous complex and contested cases during his seven years in South Australia.  He repeated his previously offered opinion that he did not believe that Mr Jahoda was a risk to his son.

The Evidence Given at Court

1. What follows is taken from my notes.  It is, of course, not a transcript but recalls aspects of the evidence I found significant.

The Submissions and Evidence of the Father

1. Mr Jahoda, who represented himself, opened by observing that he had been to prison and was a registered sex offender.  He said he acknowledged this.  He said a lot of the material put against him was exaggerated.  He had no family, and no friends.  His son is the only thing for him.  He said he apologises wholeheartedly for his conduct but seeks the orders proposed by Ms N.

2. The father adopted his affidavits as true and correct.

3. Under cross-examination by counsel for the mother Ms Jahoda confirmed that he had read the family report and understood that Ms N’s proposals were attended by a number of conditions.  He seeks supervised time.  He has changed his position to accept supervision to try and accommodate the mother’s concerns, not because he is a registered sex offender.  He said that Suburb O would accept a registered sex offender.  He had been attacked twice before at his previous address and gives his address out to nobody.  The Independent Children’s Lawyer had been supposed to facilitate treatment and he got a referral from his doctor and waited for instructions from the Independent Children’s Lawyer.  He has no appointment at Psychology Clinic.

4. Mr Jahoda said he sees Dr A when he can afford it.  He is broke because of legal proceedings.  He tries to see Dr A once a month for an hour.  He said that they talk and put strategies in place.  It is whatever he talks about, work, things at home, talking about the Court.  Mainly it is how he would get to see [X].  It will be very difficult if he does not get to see [X].  He is not suicidal.  He said [X] needs a father.  “I have to stick around and see what happens.”

5. Dr A has recommended that he take up a hobby and exercise but he cannot join a club.  He has to get on with it.  He goes to work and goes home.  He goes for a walk.  He can’t afford a gym.  He is a professional.  He works a 38 hour week with some overtime.  The overtime is one to two hours per week.  He has to learn to live with what is going on.  He talks to his mother who lives with him, and he talks to his sister.  He reads a lot now and keeps his mind active.

6. Mr Jahoda asserted that one Mr P had dobbed him in, this causing him to lose his prior employment.  He did not know whether the mother had put Mr P up to this.  He has not told his present employer of his history.

7. Mr Jahoda lives in a two bedroom house.  His mother wishes to support him and she moved to be closer to her grandchildren.  His mother is someone he can talk to and he is not estranged from her.  They are not however mother/son close.  His mother never accepted he had a mental illness but now she does.  She was horrified by his offences but they did not fall out over that.  She has said, “You are still my son and I still love you.”

8. The grandmother’s partner died and that was in part why she returned to Victoria.

9. His sister, Ms J, had problems with alcohol.  He gave up drinking and when Ms J stopped drinking they reconnected.  His sister has no mental health problems.  She just stopped drinking and has done well.  He reconnected with his sister at the end of last year.

10. The grandmother has had an opportunity to read the family report and he thinks his sister may have read it.  He has read the mother’s affidavits.  He accepts that there were four counts of sexual stuff and the threat to seriously harm the mother.  He pleaded guilty to sexual penetration but it was not true.  He said he thought he would spare the victim a trial.  There were three other sexual penetration charges.  The three counts relating to indecently dealing with a child under 16 were all true.  Ms D was older when the offences started.  He would say she was nine.  He is not a paedophile and not attracted to children.  He served about 18 months of a three years six months sentence.  The people in prison said he did not require the sex offender’s course.  He discussed this with his parole officer who said he was not suitable for the course.  Everybody at the Department of Corrections said he was unsuitable and that he was a low-range risk.

11. Mr Jahoda considered he had not abided by all parole conditions. He had not told the mother that Ms D and her family were lying.  The mother made this up.  He said it was all true.  IVF was discussed in a different context and it was his mother who paid for IVF for [X].  He said he had been standing at the kitchen and said, “It doesn’t look good.  I may go to jail.”  The mother had responded that she would continue with IVF.  The mother had attended all his appointments with barristers and knew what his charges were all about.  The child said he had raped her once or twice a week, and had told her GP.  He was never charged with rape.  He said, “I live with this every day of my life.  It was bad, but the other allegations she was making were untrue.”

12. Mr Jahoda was sent to gaol in … 2013 and bankrupted thereafter.  His company was deregistered and he said, “Ms Jahoda put us into bankruptcy.”  He had offered prior to trial to get another colleague because he might go to gaol and the mother responded, “I have had clients who have not gone to gaol” so it went that he was bankrupt two months later.  She called him up and said, “Sorry, I’m going to have to bankrupt us.”

13. Mr Jahoda said it was not Ms D’s fault and he had not said it was.  He said, “I am 100 per cent to blame.  I am the adult.  This shouldn’t have happened.”  He had said if the children had left it would never have happened but it was still his fault and he should have been more forceful.  He should have forced Ms D’s family to leave.  He denied saying that Ms D had come onto him. 

1. Mr Jahoda admitted the text messages set out at paragraph 9 of the mother’s trial affidavit in which he complained about a woman getting a lesser sentence than he did.  He said he was ignorant.  He does not minimise his conduct.  He said the other people he had referred

   
   

   to should have gone to gaol like him.  He admitted the Department’s reports first case note referred to in paragraph 10(a)(i) of the mother’s trial affidavit and admitted sub-paragraph (iii) that he had said that Ms D would rub her vagina up and down on his arm and leg.  He said that he had told the Department that the child was nine. He denied saying there was a lot of difference between a seven year old and a nine year old.

2. He denied the allegation at paragraph 10(b) of the mother’s trial affidavit that he had admitted to his parole officer that he had groomed the child and planned the offending for when his wife was out as is set out in paragraph 10(b) of the trial affidavit.  He said he never discussed these matters with his parole officer.  He did admit paragraph 10(c) which describes his distasteful attitude to the Department.

3. He denied the assertion at paragraph 11(a) of the mother’s trial affidavit.  He had not said to Dr A that Ms D was playing a part in his offending;  he admitted he was angry and bitter at the failure of his business;  he was angry at friends and family;  Ms Jahoda had made a lot of promises but had not kept them;  he had no support, and had nothing.

4. He denied that the Parole Board had imposed a condition of a 16 weeks Anger Management Course upon him.  He did not have a serious anger management problem.  He had no road rage issues.  He denied that the mother had ever requested him to go to Suburb F.  He denied that he had ever said this and admitted that he breached the Court’s order.

5. Mr Jahoda agreed that he was convicted in July 2016.  He got 30 days for the threat to inflict serious injury.  He had sent a picture of a knife he was going to hurt himself with.  His threats had been to expose the mother’s criminal background.  He admitted that he said he would drive a truck through her house but denied making a threat to kill her.

6. He was taken to annexure J-3 to the wife’s first affidavit.  He agreed that the threats to kill the wife were horrendous.  He said this was not literal but was how he felt at the time.  He felt backstabbed himself.  He has never behaved violently to anybody.  Nonetheless, as a result, his parole was cancelled.  There is an Intervention Order in place for five years.  The mother’s complaint about his conduct was three and a half months after the message.  He was not taking the correct amount of medication at the time.  He is working on his problems but mental health takes time.

7. Mr Jahoda admitted suicidal ideation in March 2018.  He was forced out of his job and had to go back to … employment, which he hated, and had a meltdown.  This was his only slip up in the last 16 months.  He did not fully agree with Dr L’s report.  He had not yelled at [X] numerous times.  This was 100 per cent wrong.  He yelled at [X] once when [X] was about three years old.  He had let a three year old tell him what to do.  He had not thrown his bag.  He got him home and both he and [X] were upset.

8. He did not agree that the mother was scared of him.  She had lived with him for 25 years.  He is not aggressive.  He agreed that he had only had limited and sporadic time with the child.  The time in 2015 to 2016 was unsupervised.  It was business as normal.  He had unsupervised weekends until he was gaoled.  He has had no time with [X] since 6 June 2016.  The child remembers him.  He has said he has a father.  The father is “naughty and has gone away” but he still remembers him.

9. When asked what he had to offer, he said that he offers [X] being a father.  This will involve guidance.  He is not as good as others but he is still his father.  Any relationship with any father will be of benefit.  He does not accept the results of the FSNA test.  He said Dr A would explain.  He accepted that the Department had not made it clear that his time should be supervised.  He is not obsessed about reconciling, although he did want to reconcile.  He does not put the mother in fear.  He asked rhetorically “Where is the evidence to show that I did?”.  He accepted that the mother’s fears were real and that that was her opinion.  He said he had been a victim but he was not using this as an excuse.  He had looked at Contact Centres set up for this kind of thing.  He has no idea of the cost of supervision but will pay whatever he needs to, to see his son.

10. Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Jahoda was questioned as to why he was proposing supervised time.  He replied that this was pretty much to appease everybody as it had been recommended.  He was happy to do it and wants reports of his supervised time.  When it was put to him that Ms N had only recommended four occasions per year, he said this was what she had recommended.  He wants to prove Dr L wrong.  He does not agree he is a sexual risk.  He has been assessed numerous times.  It is out of hand.  He is not a risk at all.

11. He accepted Dr M’s diagnosis of attachment disorder and that he has had depression since a child.  He had been under pressure and had to change jobs.  His mother has moved down and he is handling it all pretty good.  He had discussed the reports with Dr A.  When asked if he had discussed Dr M’s report with Dr A, he said that he had.  He said Dr A does not agree with him.  Tests were not conducted in the appropriate way and are supposed to be done in gaol.  His mother went by his sister’s comments and said that she now understands.  She understands mental illness now.  Dr L said he had got there late and they spoke for one and a half hours.  Then there was testing.  Dr L’s report did not reflect what they spoke about.

12. He denied being a paedophile.  He said he is a sex offender, not a child molester.  He has not re-offended.  He understands that Dr L needs to protect himself.  He had [X] for 16 months and nothing happened.  He said a Sex Offender Program would be of benefit to him and was hoping it would give him insight.  He was happy to engage with a psychiatrist.  But no psychiatrist would write a report.  He was prepared to engage with Psychology Clinic.  His solicitor had told him to discuss matters with his GP and Dr A only.  Supervision should finish with what the Court thinks appropriate and the matter should be reviewed.  It would require a further psychiatric report.

13. It was put to Mr Jahoda that Ms D was born on … 1999 and he said that she was nine at the time of the offences.  2011 was the last time.  When it was put to him that he was the adult, born in 1973, he said there were four incidents over four years.  It must have been 2012.  He provided accommodation and food to Ms D and her brother but he had no power in the house and no authority.  He agreed, however, that Ms D might think he was in a position of authority or power.  He had breached these.  He disagreed that his actions with Ms D were premeditated but said he had a total lack of impulse control with Ms D.  The same was true of the messages he sent to the mother.  He said he had learned but it was a work in process.  He does not drink.  He is not around the children unsupervised any more.  He conceded that he would have told Dr L he was suicidal in March 2018 and was pretty sure he had told Dr M.

14. When asked about the setback in October to November 2017, Mr Jahoda said he lost his job.  There were divorce proceedings too.  He still loved Ms Jahoda but does not want to be with her.  He has no relationship with the mother although they were together for half their lives.  He admitted sending the photographs to the mother and said he had not really had a meltdown but was attention seeking.  There have only been three suicide attempts in his life.  He sent the letter of 14 October 2016 to a PO Box and the mother was supposed to leave it until he got out.  He was in prison having a hard time.  When questioned about Ms D, he said this was a position he was put in.  He did not want to be in it.  He lacks self-discipline.  He said he was now in a better situation and his discipline was much better.

15. When questioned with the charge of threatening serious injury, he said he had sent a photograph.  When asked what he thought the impact of that photograph might have been on the mother, he said he still thought her reaction was over the top.  Probably it was a cause for concern but she took three and a half months to report it.  When questioned about the photograph of the knife in the back, he said this was a threat to him, not her.  When asked what [X] could learn from him, he said “I’m his father.  I’ll tell him when the time comes about his father”.

16. If I understood correctly, when questioned about the amount of time he had been seeing Dr A, he appeared to suggest that, at first,

    
    

    he had not discussed [X] but then said that Dr A said he was not a risk.  The witness was visibly angry and raising his voice at this stage.  He last saw Dr A last month.  He had told Ms N that [X] would not be harmed in any way.  He does not understand what parental responsibility is.  It cannot be done by phone calls and emails.  He does not believe the mother’s fears and said she is exaggerating and putting it on.

The Evidence of the Mother, Ms Jahoda

1. Following a brief opening by counsel in which the orders she sought were outlined, Ms Jahoda was called and adopted her affidavits as true and correct.  She is unemployed because she has been informed that [X] will not be ready for school next year and wished to concentrate on him.

2. Mr Jahoda expressly declined to cross-examine the mother.

3. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother confirmed that [X] is not seeing Ms Q (who I understand to be a counsellor).  He had four to five visits for his anxiety, of which the last was in 2016.  They are on the wait list for family therapy because of [X]’s outburst meltdowns.

4. When asked if she had taken [X] to see a paediatrician, the mother said they had a meeting with the school two weeks ago and there is the possibility of a referral.  It is unclear what is troubling [X].  She told [X] the day before the family report that there was no kinder and he was fine with that.  But on the morning, he got upset while she was with Ms N.

5. When asked what [X] knew about his father, the mother said Ms Q had told her to say that the father was sick and that “we couldn’t see the father”.  This was only brought up on a snow trip.  [X] had said “When I was born, I had a dad but I don’t now”.  She has never spoken to [X] about the father being in gaol and just does not speak about him around [X].  It should be noted that throughout her evidence but, perhaps most particularly at this point, the mother was deeply visibly distressed, cowed and bent down and labile.

6. The mother said [X] has no counsellor at the moment.  He has had speech therapy and some OT.  School will have speech therapy.  She could not say how she would cope if [X] was to see his father four times per year.  It would be confusing for [X].  They would have

   
   

   to get help to explain why it was only four times a year.  She wants [X] to know that the father is alive.

7. When asked if she was prepared to agree to the father sending cards and gifts, she said that she was.  She had, herself, seen a counsellor through SECASA in 2016 to 2017. 

The Evidence of Ms C

1. Ms C was called and adopted her affidavit as true and correct.  She is a tradesperson.  The father did not elect to put questions to her.  Under questioning by the counsel for the Independent Children’s Lawyer, she had not read the family report.  When asked if she had told [X] that his father was “bad and naughty”, Ms C said that they were told to say the father was “sick, naughty and we can’t see him”.

The Evidence of Mr G

1. Mr G is retired and adopted his affidavit as true and correct.  Once again, the father did not elect to put questions to him.  He confirmed to the counsel for the Independent Children’s Lawyer that [X] had never asked if he could see his father.

The Evidence of Ms N

1. Ms N adopted her report as exhibit M1.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms N confirmed that her recommendation for time

   
   

   was predicated on the assumption that the Court was in favour of this.  If the Court was not, then no time was an option.  When asked about [X]’s time, Ms N said there were two things.  Knowing that there was a father was the minimum.  [X] will know that the father wants to see him and this would be beneficial to him.

3. When asked about letters, cards and gifts, Ms N said this was also possible but real contact would be very difficult.  [X] has memories of his father and the father says there was a very good relationship before the gaol sentences.  By the time the child is 11 or 12, he will know if he wants to see his father at all.  Quantity of time is not important in this case.  [X] has a sense of loss and disconnection and some hunger for his father, which could become an extreme thing for him.  The boy is lost.  [X] said his father was in gaol.  He did not know if he had done something wrong.  This could develop into a problem in years to come.

4. Ms N then referred to another wholly unrelated case in which a child had committed suicide because there was no time between the father and a child.

5. The mother was concerned about the safety of the child, even with

   
   

   a supervisor.  Some of the time, the father says he was very sorry but, mostly, it was “what they did to my life”.  The father’s insight

   
   

   was important.  Also, the mother’s capacity to cope with contact. 

   
   

   The father’s therapy needs to be evaluated because it concentrated

   
   

   on the father’s wellbeing.

6. Under cross-examination by counsel for the mother, Ms N confirmed, very properly, that it was not up to her to decide whether the child saw the father.  She had read the reports of Dr A until 2017.  She had not seen his most recent affidavit.  Psychiatric treatment and counselling are different.  Dr M said the father should see Dr A but there should be psychiatric treatment too.  She had read Dr L’s report and noted there was a moderate to high risk of sexual abuse and a high risk of generalised abuse.  Relations with the child would be very limited as he had not seen the father for two and a half years.  The father was more focused on himself than the mother and the child.  He presented himself as a victim.  The mother’s fears of the father were genuine and there were some unknowns about [X].

The Evidence of Dr A

1. Dr A, who gave evidence by telephone, adopted his affidavits as true and correct.

2. In what purported to be evidence-in-chief, being led by the father, Dr A said he had been in Child Protection for many years. Mr Jahoda first consulted him under a mental health plan.  He was not always suicidal.  His depression is relative.  Sometimes it is more severe.  Mostly, it is situational.  He was not genuinely suicidal.  Circumstances conspired against him.

3. Dr A had no concerns about [X] spending time with his father.  The father did not fit the profile of a sexual predator.  It was a one-off.  The father’s sexual orientation is towards adult women.  He loved the mother and still does.  He was mortified she was divorcing him.  He has no concerns of possible sexual abuse of [X] by the father.  The niece was an anomaly.  There is no risk of sexual re-offence.

4. Dr A observed that the RSVP test should not be used to profile sexual risk in the future.  He had read Ms N’s report.  Her suggestion that Mr Jahoda has no remorse is not correct.  Ms N was very conservative in her recommendations and was being cautious for Court purposes.  There are numerous benefits to having a relationship with both parents.  There would be different parenting styles.

5. Under cross-examination by counsel for the mother, Dr A indicated that he did not have his notes with him.  He had not read the mother’s material but had seen the picture of the knife in the back.  There were certainly times when the father had functioned at a high level but circumstances have caused him to act out as he did.  He did not have serious psychiatric problems.  He did not expect the father to have ongoing suicidal ideation.  It was subject to the vicissitudes of the issues he has to deal with.  Dr A thought Dr L had erred on the side of caution, based on an instrument that may not be correct.  The RSVP test tends to be for incarcerated persons, which is its primary use.  Dr A was not certain that it was generalisable in the non-incarcerated population.  Dr A, whose doctorate I note is in clinical psychology rather than medicine, indicated that he was not intending to be an advocate.  He has spent many hours with the father but it is not treatment per se.  It takes a lot of time to diagnose.  It is not a pervasive disorder.  He is not undertaking treatment with the father but is providing lots of support.  The father will need to consult a psychiatrist for some time for medication.  He has had a lot to wrestle with.  His marriage was taken away.

6. When questioned whether the father was depressed in 2018, Dr A said that it was a very difficult time for the father.  No one has a crystal ball.  Once things settle down, he will be more harmonious in his world.

7. When cross-examined by counsel for the Independent Children’s Lawyer, Dr A confirmed that he had received Ms N’s report about a week ago.  Mr Jahoda had sent it.  He had a very brief discussion on two occasions with Mr Jahoda about it.  He thought it was not a bad report and opened the door for time with [X]. He had read the reports of Dr M and Dr L but could not say when.  Mr Jahoda had told him about his appointment several months ago and the legal representatives gave him the reports.  He was working at the time in Western Australia for family reports but these were not regulation 7.  They are arranged through Legal Aid in Western Australia.  He was a reg 7 counsellor for New South Wales but is not now.  This ceased in about 2009.  This was because findings were made against him at the Victorian Board and he was suspended for three months.  He has never used the RSVP test.  It should not be used to predict sexual violence in the future.  He was not aware of any other such tests.  He had no comment to make about the FSNA test administered by Dr L dealing with neglect or abuse.  He said the father was the wrong profile and was not a risk to [X] and was not interested in children.  He said external matters have to settle down before the father can be treated.

8. It should be noted that counsel for the mother had objected to the receipt of Dr L’s report on the footing that insofar as it sought to challenge the conclusions of Dr M and Dr L, they had expressly not been required for cross-examination.  I gave my ruling on this matter at the time.

Final Submissions

1. Counsel for the Independent Children’s Lawyer submitted that the father should be permitted to send letters and cards.  She pointed to paragraph 15 of Dr L’s report.  She submitted that sole parental responsibility should be vested in the mother.  Unsupervised time involved an unacceptable risk.  The father agrees that his mental illness requires time and the father agreed that there should be supervision.  Counsel referred to a number of authorities dealing with the calibration of risk.  I accept the general principles enunciated by counsel and it is not necessary to set the authorities out, they being, to an extent fact-specific, in any event.  Counsel submitted that the burden of these authorities was to the effect that the Court needed to decide if there was a risk and if it was unacceptable.  As indicated, I accept the force of that submission.

2. Counsel submitted that there is a risk and that it is unacceptable because supervision will simply be not enough.  Counsel pointed to the mother’s vulnerabilities, to [X]’s health and to the father not having psychiatric treatment.  The mother lives with her stepfather and mother.  If there were to be supervised time, the supervisor would need to have all the materials and would have to assign appropriate undertakings.

1. Counsel for the mother adopted the Independent Children’s Lawyer’s submissions.  He submitted that unacceptable risk includes not just sexual risk but neglect and abuse.  He submitted the mother’s evidence was unchallenged.  The father is very erratic when untreated. He submitted little weight should be given to Dr A’s reports and evidence because he emerged more as a support of his patient than as an independent expert.  He submitted the RSVP is widely used in psychosexual reports.  Dr A had not referred to any professional literature but just a website.  Dr M, it was submitted, was a well-regarded senior psychiatrist (Dr A had disputed his diagnosis of depression).  The father has a complicated past and has a serious condition requiring treatment which he is not receiving.  The child has virtually no relationship with the father and is now five.  He has not seen the father for a very considerable period of time.  The father was suicidal as recently as March 2018 and his proposal for supervision is simply not sufficiently formulated.  He is not stable and who knows what may happen at a Contact Centre.  The father minimises his conduct and shares the blame with others.  The effects of any time on the mother would be significant.

2. The father said he has not got a law degree.  He did not question any of the witnesses.  There were some untruths but his witnesses had not been cross-examined.  He had had [X] for more than 10 months and no issues were ever raised.  It was only since he returned to prison.  Counselling was all done through the parole board.  He has a good rapport with Dr A and has been guided by his lawyer.  He may have been naïve.  He regrets everything he has done and takes 100 per cent of the blame.  He has had no alcohol for two and a half years.  He has been in his present job for six weeks and has always got another one, if needed.  All four professionals recommend time with [X].  It has not been proved that he is violent.  He has made stupid threats but has never harmed anyone.  He said, surprisingly perhaps, in the circumstances, that he has not harmed anyone mentally either.  He had no support and was stupid and was 100 per cent to blame.  He just wants to be [X]’s dad and is not a threat to anyone.  There have been no fights in his life.  He just wants to be [X]’s dad.  He has lost Ms Jahoda and [X] is all he has left.  He would do anything the Court asks to facilitate time to happen.

Some Brief Observations about the Credit of the Witnesses

1. The father was, in the main, apparently directly responsive to the questions put to him.  He spoke with visible emotion throughout his evidence and as I have indicated, at times he was angry and his voice was raised.  Indeed, it was not possible to avoid noticing that the predominant emotion apparent in Mr Jahoda’s demeanour was one of anger and self-pity.

2. The mother, as I have already indicated, was visibly bowed down and terrified while giving her evidence.  She was also labile at times.

3. Ms N was a careful and considered witness.  She made concessions when they were there to be made and struck me as being an entirely fair and objective witness whose evidence I should accept as truthful, both in the sense that I accept her account of what she recorded in her report and in her sticking to her opinions.

4. Drs M and L were not required for cross-examination. 

5. Neither, it should be noted, and perhaps most importantly, was Ms D.

6. Dr A’s evidence was, I regret to say, unsatisfactory.  He took it upon himself to make answers to questions that had not been put, which were quite plainly designed to assist the father.  I accept the criticism of him by counsel for the mother.  He presented not as an expert giving independent evidence but, rather, somebody seeking to champion the cause of his patient.

7. I note, and it is a matter that requires note, that Dr A was given a suspension of what I presume was his entitlement to practice by the relevant Victorian authorities.  I have not traversed Dr A’s explanation given in his evidence, but it was wholly unconvincing.  In assessing Dr A’s evidence, as I indicated when I gave my ruling, I bear in mind neither Dr L nor Dr M were required for cross-examination.

Findings as to the Facts

1. The father is a man who has had a desperately unfortunate life.  His early childhood was dreadful and it has, plainly, affected him. It would appear that the most successful relationship he has ever had was that with the mother of his child, [X], although from the mother’s demeanour in the witness box, it appears that she is nothing short of terrified of him.

2. The father, most unfortunately, has suffered from severe depression since early childhood and it is clear that, at the very least, he is prone to relapses even now.  He has tried to commit suicide, even on his version of events, on three occasions.  He has offended not only against Ms D, a matter to which I shall shortly return, but in the appalling messages and photographs he has seen fit to send to the mother from time to time.

3. I accept Ms N’s evidence that the father presented to her as being more concerned to complain of the harm inflicted upon him, than to fully and realistically accept the force of his own conduct, despite his superficial assertions to this effect.  Not only was Ms N’s evidence given with conviction, but it is entirely consistent with the way I saw the applicant in giving his evidence myself.

4. This brings us to Ms D.  Ms D has filed an affidavit in which she paints an altogether more serious version of the assaults.  She says they did not start at nine but started when she was much younger and were far more frequent, through until her final complaint when she was 12 or 13.

5. Ms D was not required for cross-examination, a concession that, to an extent, does the father credit.  Nonetheless, I should make it plain that in approaching the father’s qualifications and obfuscations about his conduct towards Ms D, the fact that she has gone on affidavit (she is now 19 and is old enough to do so) speaks volumes.

6. Not only is this the case, but the father’s denials have waxed and waned and turned and weaved.  His hand was inside her body; his hand was inside her undergarments; his hand was outside her undergarments; the sexual penetration never happened at all even though he pleaded guilty to it.  They are all too many versions of the events.

7. Whatever the ultimate truth of the exact amount of offences the father committed, I have no hesitation in finding that although superficially he says he takes 100 per cent of the blame and understands the appalling nature of his conduct, this is not the case.  I have seen and heard him give his evidence which, in my view, is consistent with the material taken overall, in any event. 

8. Dr L, who plainly has no reservations about applying the RSVP test to people who are not in gaol, was not required for cross-examination.  He is an expert witness with an outstanding CV.  He has assessed the father at moderate to high risk.  Not only is that the case in relation to sexual offending, in respect of which Dr L opined that the father might offend across gender and within his own family, but the father was assessed at high risk in relation to general risk of abuse, in any event.

9. Furthermore, Dr L’s diagnosis of depression, with which Dr A saw fit to cavil, is from an extremely experienced practitioner.  The assertion by Dr A that he had the better view of the matter because he has been seeing the father for far longer and far more frequently, sits ill with their respective qualifications.  Dr M is a doctor of medicine and Dr A is not.  I accept the evidence of Dr M.

10. Before leaving the question of Dr A, I should note that the manner in which Dr A gave his evidence, including his admission that he had discussed it on two occasions with the father, together with the father’s anticipatory introduction of Dr A’s evidence about the RSVP test, strongly suggests that they had discussed the questions that Mr Jahoda was going to ask him in advance of the proceeding and that they were concocted together to present the father and Dr A’s comments on him in a good light.

11. If there is one further finding that needs to be made entirely clear at this stage, it is that the mother is, indeed, terrified of the father. She is terrified of what he will do, irrespective of the outcome of these proceedings.  Her demeanour and affect in the witness box and, indeed, during her time in the well of the Court were entirely consistent with this all too obvious emotion.  I accept Ms N’s observations not only because, as I say, once again, Ms N was a good witness, but because her experience of the mother was entirely reflected by my own.

12. Against these findings, I now come to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

    “Summary

    [65]  In summary, the amendments to Pt VII have the following effect:

    1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

    2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or
    a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

    3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless,
    in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

    4.  The presumption may be rebutted where the Court
    is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

    5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests
    of the child and reasonably practicable for the child
    to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

    6.  The Act provides guidance as to the meaning
    of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
    (s 65DAA(5)).

    7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

    (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 and 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.

    8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

    9.  The child’s best interests are ascertained by
    a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

    10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large
    to consider what arrangements will best promote the child’s best interests, including, if the Court considers
    it appropriate, an order that the child spend equal
    or substantial and significant time with each of the parents. These considerations would particularly be so if one
    or other of the parties was seeking an order for equal
    or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

    11.     The child’s best interests remain the overriding consideration.”

Shared Parental Responsibility

1. There is no question that there has been family violence.  The appalling messages sent to the mother, including the dreadful knife in the back photograph and the observation that he would slit her throat (an observation repeated later) remove any faint inklings of doubt there might be in this regard.  The fact is that the mother has been the primary carer of [X] all his life and in the face of the father’s violence, in my view, the presumption as to equal shared parental responsibility is immediately denied.  This is all the more so since the father does not seek more than the most minimal supervised time with [X] for the foreseeable future.  Indeed, one of the criticisms advanced by counsel for the mother, which I think I have failed previously to traverse, was that the continual and ongoing and unending supervision for which the father contends, is inherently inappropriate, is a submission I accept.  There is no prospect of the father playing a meaningful role in [X]’s life, even on his own case, for an appreciable period of time to come.  It is instantly obvious that decisions will need to be made, all the more so since [X]’s developmental health needs to be the subject of investigation now, given his possible autism.  Plainly, the mother must have sole parental responsibility.

2. This brings us to consideration of what orders are in [X]’s best interests, by reference to the legislation.

The Primary Considerations

1. The Court is, of course, required to consider both the benefit to [X] of having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The Court is required to give greater weight to the latter of this considerations (section 60CC(2A) of the Family Law Act 1975 (“the Act”)).

2. Here, the independent expert evidence of Dr L, not challenged by Dr A, pursuant to the FSNA report is that the father is at a high risk of abuse and neglect.  There is also a moderate to high risk of sexual abuse.

3. The father says, passionately, that he would never harm or abuse [X].  It is true that nothing untoward happened during the relatively extensive period of time that the father was, erroneously, permitted time, including unsupervised time and overnight time, with [X] in 2014 to 2015.

4. This is not, however, just a question of what the father says.  It is, as the Independent Children’s Lawyer rightly submits, a question of whether there is a risk and if it is acceptable.

5. In evaluating this risk, I am bound to have regard to the father’s lack of insight.  He has minimised the nature of his offences with Ms D.  He tried to downplay and explain away even the appalling messages he had sent the mother.  Ms N is right that he essentially blames everybody else first, despite his repeated protestations that he is 100 per cent to blame and accepts this.  This insightless and, as I find, erroneous assertion as to his true state of mind (I should make it clear I simply do not believe him) doubtless derives from his most unfortunate childhood and his serious and significant mental health difficulties, a matter in the ultimate for sympathy rather than criticism.  The fact is, however, that there is a significant risk to [X] in contact with his father on any view and I am required to give that greater weight than the desirability of his having a relationship with his father.

The additional considerations

Section 60CC(3)(a)

1. The child has expressed very little by way of views about his father.  Given the considerable length of time that he has not seen him, and the fact that he is only five years old, this is unsurprising.  I note that he has got from somewhere (most likely the maternal grandmother, given her evidence) the notion that his father is, in some way, naughty or bad.  I accept that Ms N feels that this may ultimately come to be problematic for [X] but it is an unavoidable reality in the circumstances.

Section 60CC(3)(b)

1. [X] has a well attached and secure relationship with his mother, who is his primary carer.  Little has been said about his relationship with Mr and Mrs G, but I see no reason to doubt that his relationship is, as their affidavits tend to indicate, warm and affectionate.  He has no relationship with the father’s family, whatever.  Indeed, it is not clear if he has even met the paternal grandmother.

2. With his father, the child’s relationship is, at best, one of vague recollection.  It cannot, at this stage, be put higher than that.

Section 60CC(3)(c)

1. The mother, plainly, has participated in making decisions about the major long-term issues that affect [X] and has looked after him all his life.  The father, by virtue of his prison sentences, brought about solely by his own conduct, has had much less time with the child, although it is fair to say that it is plain he has wished to see the child at all times, including during his incarceration.  Indeed, the mother took the child to see him on occasions when he was first in gaol. He plainly desires to spend time and communicate with him.

Section 60CC(3)(ca)

1. The mother’s conduct in this regard is wholly unexceptionable. She has fulfilled her obligations to maintain the child.  The father has not.  His incarceration and employment difficulties from time to time would, doubtless, have impinged upon the matter, but the fact is he has provided nothing by way of material support for a long time.

Section 60CC(3)(d)

1. This is an important subsection in the case.  [X] does not know who his father is.  Any endeavour to make him spend time with his father would require, at the very least, detailed psychological/psychiatric preparation, both for the father, the mother and the child.  It is not possible to say what the effect on the father would be.  Any separation from his mother would likely be deeply distressing to [X] and would have the most appalling effects upon the mother.  The mother’s fears of the father are entirely rational.  The threats he has made to her from time to time are quite disgraceful and appalling.  She is terrified of him.  To separate [X] from her and send him to the father, even for brief periods of time, would be deeply traumatic for her.

2. The effects of continuing separation on the father may also be severe.  The father is desperate to see [X], whom he sees as the only thing left in his life (leaving aside his reconnected relationship with his own mother and sister).  One of the concerns I have in this case is that the father’s assertions about his need for [X] are very much based upon his own needs.  He has said “[X] is all I have left”.  He needs [X] in his life to help him.  That is not the focus of the legislation. In saying this, however, I am all too conscious that a total exclusion of the father from [X]’s life may well be exceptionally confronting for the father and may have the most damaging effects upon his mental health.  I note his prior attempts at suicide, albeit that it is said by Dr A that these were not genuine, something I suspect may not be wholly accurate, but I am obliged to consider [X]’s best interests as the ultimate criterion.

Section 60CC(3)(e)

1. There will be considerable practical difficulty and expense in providing for any spend time regime with the father.  Many of the normal Contact Centres will not accept Registered Sex Offenders like the father.  There would be expense occasioned by such time, even on the father’s own proposal, and he has not turned his mind to the costs thereof.  Nonetheless, I accept that he would do anything necessary to make the funds available to pay for any time that might be ordered.

Section 60CC(3)(f)

1. The mother plainly has the capacity to provide for [X]’s needs, including his emotional and intellectual needs.  I note that there is a suspicion that [X] is on the autism spectrum and my impression of the evidence is that the mother has not been particularly proactive in addressing [X]’s meltdowns and difficulties.  Against this, it must be noted that she has had plenty on her plate as a result of the father’s behaviour and offences over time.

2. The father’s capacity to provide for [X]’s needs is difficult to calibrate.  When asked what he could provide [X], his answers were very broad based and generic.  They amounted, in effect, to the assertion which I think I set out in terms earlier, that any child would benefit from having a relationship with any father.  This is not the case.  Some fathers, unfortunately, do not provide a benefit to their child or children.  The father’s emphasis upon himself, understandable as it is in one sense, and his tendency to blame others for his misfortunes, suggests a self-absorption that, to my way of thinking, indicates a lack of capacity to consider the interests of others.  I repeat again that the father loves [X] but this affection is bounded about very much by his own needs.

Section 60CC(3)(g)

1. In part, this very important matter has already been dealt with.  The fact is that the father has a background in which he has offended significantly.  He is on the Sex Offenders’ Register for life.  In my view, he has not yet, despite what he says, developed a proper insight into the nature of his conduct.  At best, as he says himself, he is a work in progress.  I note that Dr A was express in his evidence that what he was doing with Mr Jahoda was not treatment or therapy, but rather support.  Dr A opined that Mr Jahoda will not be able, successfully, to access psychiatric treatment until his life settles down (or words to that effect).  I accept the evidence of Dr M that the father needs psychiatric treatment now.  It does not appear that he is likely to get it.

2. For all her deficiencies, in the sense of being beaten down and timorous, the mother is a person who has done her best to bring [X] up and deserves full credit for this.  Her age, maturity, lifestyle and background do not suggest anything to the contrary.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. I think I have already dealt with this under section 60CC(3)(g).  The father’s attitude towards his child certainly involves a great measure of affection and love, but also involves a sense, as I find, of ownership.  More particularly and, perhaps, even more worryingly, his idea of his relationship with [X] appears to be something designed to sustain himself as a primary focus.  The primary focus is not [X] but, rather, the father himself.  The mother’s attitude towards the child and the responsibilities of parenthood is wholly unexceptionable.

Section 60CC(3)(j)

1. It is clear there has been family violence in the past.  Whether the violence during the relationship, itself, was as the mother puts it or the father puts it, is not entirely easy to say but what we do know with absolute certainty is the appalling nature of the violence once the relationship was brought to an end.

Section 60CC(3)(k)

1. There is a five year Intervention Order not due to expire until 2021.  This speaks for itself, especially since it arose as a result of a breach of an earlier order.

Section 60CC(3)(l)

1. It is plainly desirable to make final findings.

2. In their own way, each party seeks it, even though the final orders sought by the father are open to the criticisms advanced by counsel for the mother as to the undesirability of definite supervision.  Furthermore, the mother and [X]’s immediate family, more generally, need the strain of these proceedings to be brought to an end, it is in [X]’s best interest.

Section 60CC(3)(m)

1. There are no other matters required to be considered.

Conclusion

1. This is a terribly sad case.  The father’s life has been a very sad one and this decision will only make it sadder again.  In the end, however, the Court is concerned, first and last, with [X]’s best interests. I accept the submission by counsel for the Independent Children’s Lawyer that the question is whether there is a risk and whether it is an acceptable risk.  As I hope I have made sufficiently clear, there undoubtedly is a risk and it is not an acceptable one.  Furthermore, and were that not enough, the reality is that [X] does not know who his father is in any meaningful sense.  At worst, he has a sort of inchoate feeling of loss.  Ms N may be right and this may, in the future, become problematic for the child, but he is only five years old now and his best interests need to be considered now. The reality is that to reintroduce him to his father in the fashion conditionally recommended by Ms N would be confusing and difficult and, as I find, traumatic for a child like [X] who likes his world in a settled order, it would appear.

2. Were this all, again, not enough, I think that the father would pounce with a greedy avidity upon any time spent and I have real doubts as to his capacity to contain himself, even in a strictly supervised environment.  Finally, the outcome of any orders for the father to see the child upon the mother can simply not be put to one side.  She is terrified of the father, and with good reason, and any order for a time regime would be likely, in my view, to have the most damaging effects upon her mental health and wellbeing.  These could only be damaging to [X].

3. Regrettably, and taking into consideration all these relevant matters, the answer is only too clear.  There should be an order for the father to send gifts and cards, as indicated by the Independent Children’s Lawyer and I will request the Independent Children’s Lawyer to draft a minute to give effect to this conclusion.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 24 January 2019