Junge and Padovan
[2017] FCCA 1350
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JUNGE & PADOVAN | [2017] FCCA 1350 |
| Catchwords: FAMILY LAW – Parenting – whether unacceptable risk of abuse – child pornography found on computer Father used – whether Father involved in inappropriate conduct with a child – issues of credit – detailed review of evidence – finding of unacceptable risk of abuse – no contact. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV, 70NAE |
| Cases cited: Betros (2017) FamCAFC 90 MRR v GR [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 |
| Applicant: | MS JUNGE |
| Respondent: | MR PADOVAN |
| File Number: | WOC 656 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 8 – 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 11 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Acorn Lawyers |
| The Respondent appeared in person. |
| Counsel for the Independent Children’s Lawyer: | Mr David as Solicitor-Advocate |
| Solicitors for the Independent Children’s Lawyer: | Hansons Lawyers |
ORDERS
The Applicant Mother have sole parental responsibility for the child, [X] (DOB: omitted).
The child live with the Applicant Mother.
The child spend no time with the Respondent Father.
Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from stalking, approaching or contacting the Mother and the child.
Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from approaching or entering any educational facility that the child or mother are enrolled in, or any place of employment where the Mother works, or any residence where the Mother and child may reside or frequent from time to time.
Both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s family in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the child.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Applicant Mother is to have sole parental responsibility for an application to apply for, or renew an Australian Passport for the child namely [X] born (omitted) 2010, such passport shall be issued to the Mother without the consent of the Father.
The Applicant Mother be permitted to travel outside the Commonwealth of Australia with the child.
The Applicant Mother provide, or cause to be provided, to the Father information of:
(a)Any serious medical problems or illnesses suffered by the child; and
(b)All school reports, reports on progress and behavioural issues and other school circulars in relation to the child.
The Father’s Contravention Applications filed 24 April 2017, 21 March 2017 and 27 October 2016 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Junge & Padovan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 656 of 2015
| MS JUNGE |
Applicant
And
| MR PADOVAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born (omitted) 2010 who is 7, and whether she should spend time with her father. These reasons for judgment explain why the Court has concluded that [X] should neither spend time nor communicate with her father, but that her father should be entitled to receive information about [X] from time to time.
Background
[X]’s mother is the Applicant in this case. She is 29 years old and describes herself as an (occupation omitted). The Respondent is [X]’s father. He is 30 years old. Both live in the (omitted) region of New South Wales. The parents appear to have formed a relationship in 2004, commenced living together shortly after that, and finally separated in about 2013. There were previous separations during this period, and even after the final separation the parents appear to have maintained some form of relationship with each other.
[X] appears to have spent regular time with her father in the post-separation period until early 2015. There was an unfortunate incident at her birthday party on (omitted) 2015. A few months earlier, the Father had formed a new relationship with his current wife, Ms A. It appears that the deterioration in the relationship between the parents may have coincided with this.
In any event, early in April 2015, the police commenced an investigation against the Father about child pornographic material that was found on his computer.
On 22 July 2015, I made an order for the Father to spend time with [X] each Sunday between 4 pm and 7 pm, to be supervised by the Mother or another agreed person. The supervised contact has occurred, though not without incident and frustration all around. In May 2016, consent orders were made at an interim hearing that provided for the Father’s time to be supervised by SuCo. That did not, in fact, take place. The fact is that the Father has only had two hours contact with [X] since October 2016, and that was on Christmas Day.
The Father asks the Court to make orders for equal shared parental responsibility, for equal time each alternate week, together with ancillary orders. Also listed for hearing before the Court were three contravention applications filed by the Father on 24 April 2017, 21 March 2017 and 27 October 2016.
The Mother proposed an order that she have sole parental responsibility for [X], that [X] live with her and spend no time with the Father. She also proposed a number of injunctions to protect both [X] and herself, as well as passport orders.
The proposal of the Independent Children's Lawyer, by the conclusion of the evidence, was in effect the same as that of the Mother. The Independent Children's Lawyer was, however, open to the idea of the Mother providing, or causing the Father to be provided, with information about [X]’s health and educational progress. This did not appear to be a point of contention from the Mother’s perspective.
The Mother proposed that the Father’s contravention applications be dismissed. At the hearing, each of the parties pragmatically acknowledged that the best way to use the hearing time was to treat the evidence in the parenting application as the evidence in the contravention applications. It was agreed that if the central thesis in the Mother’s parenting application was accepted, i.e. that there was an unacceptable risk of abuse if [X] were to spend time with her father, then this would constitute reasonable excuse which would, ultimately, justify the dismissal of the contravention applications. Conversely, if the Court found that there was no unacceptable risk of abuse, then it would consider all of the evidence before the Court in determining the contravention applications.
As it turns out, the Court has found that there is an unacceptable risk of abuse if [X] spends time with her father, and that thus the Mother did have a reasonable excuse for not facilitating [X]’s time with her father. Thus, whilst technically speaking the contraventions are established, the Mother has a reasonable excuse, and the contravention applications are, therefore, dismissed having regard to the evidence below in relation to what is in the best interests of [X].
At the hearing, the Father represented himself. He impressed the Court as being both intelligent, and articulate. Of course, he was disadvantaged by representing himself. The Court formed the impression that this was a matter of necessity from the Father’s perspective, rather than choice. Mr Ford appeared on behalf of the Mother. Mr David was the Independent Children's Lawyer, and he was the solicitor advocate at the hearing.
The Evidence before the Court
The Father relied on the following material in his case:
a)Amended Response filed 1 May 2017;
b)Affidavit of Mr Padovan filed 1 May 2017;
c)Affidavit of Ms R filed 5 May 2016;
d)Affidavit of Ms E, filed 5 May 2016; and
e)Affidavit of Ms A, filed 29 January 2016.
Both the Father, and his wife, Ms A, were cross-examined. Neither Ms E, nor Ms R were required for cross-examination. The Court declined to allow the Father to rely on the affidavit of Mr G, an Information Technology Support Engineer. The Court was, in any event, satisfied that the evidence that Me G would have presented would not, in fact, have assisted the Father’s case.
The Mother relied on the following material in her case:
a)Affidavit of Ms Junge, filed 1 May 2017;
b)Notice of Risk filed 2 July 2015;
c)Affidavit of Ms K, filed 1 May 2017;
d)Affidavit of Ms S, filed 5 May 2016; and
e)Affidavit of Ms R, affirmed 10 May 2017.
The Mother, Ms S, and Ms R were all cross-examined. Ms K was not required for cross-examination.
The only evidence led in the Independent Children's Lawyer’s case was the family report prepared by Family Consultant Ms D and dated 24 April 2017. Ms D was cross-examined.
The following documents came into evidence as exhibits of the Court:
| Exhibit No. | Description of Exhibit/MFI |
| A1 | NSW Police docs |
| A2 | NSW Police docs |
| A3 | NSW Police docs |
| A4 | NSW Police docs |
| A5 | Bundle of correspondence from [S] to Father |
| A6 | Report from Dr A |
| A7 | Photos of Father on lounge |
| A8 | Photos of father with back to camera |
| ICL1 | Family Report by Family Consultant Ms D |
| A9 | Child abuse squad docs M5, M6, M7 MF1 |
| A10 | 24/2/2016 9x page, M16, statement of Ms A (m25) 22/2/2016 |
| A11 | NSW Police - flags |
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
This is a case where it is alleged that there is an unacceptable risk of abuse in relation to a child A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr I, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
The Evidence of the Family Consultant
Ms D’s report is dated 24 April 2017 and is based on interviews conducted with both parents, [X], Ms A (the Father’s wife) and Ms K, the Mother’s flatmate. Ms D had the benefit of observing the interactions between [X] and the other parties. She was also able to review the material that had, at that time, been produced on subpoena.
The family report notes that even though the Mother clearly acknowledges that [X] loves her father and would like to spend time with him, the Mother has concern that any such unsupervised time would place [X] at serious risk of harm. Indeed, that is the main issue before the Court. The family consultant records at paragraph 13:
13. Ms Junge believes that Mr Padovan poses a risk of sexual and psychological harm to [X] based on his allegedly having viewed child pornography throughout their relationship and having acted in a sexually abusive manner with the eight year old daughter of a mutual friend. These concerns have been reported to JIRT and investigated by them. Ms Junge said that [X]’s age and gender place her at increased risk.
The Mother explained to the family consultant that she was aware of the Father’s use of child pornography during the relationship, but did not want to accept the potential risk to [X] and thus kept it a secret, not disclosing it until 2015 when it was in the course of family violence counselling. The Mother reflected on her naïve belief that the Father would not harm [X].
The Father presented as being quiet and cooperative, and distressed at not having contact with [X], as well as strongly denying that he posed any risk to her. At paragraph 22 of the report, the family consultant records:
22. Mr Padovan strongly denied that he is a risk to [X], stating that he is not subject to an AVO, no charges have been laid against him, he is not listed on the child protection register and there is no evidence against him. He said that he was completely unaware of any concerns until contacted by JIRT. He said that he attended interviews with JIRT voluntarily and has had his phone and computer examined. Mr Padovan said that nothing incriminating was found on his phone or computer and that all the police have noted is that there may or may not be deleted files. He strongly denies knowledge of any child abuse material or having viewed this. He says that he was sickened by the allegations and has no sexual interest in children at all. He said that he and Ms Junge would watch pornography together of adult consensual sex and would discuss their sexual fantasies openly but this never involved any content involving children.
The issue before the Court is not just whether the Father was accessing child pornography, but also the issue of whether he had an inappropriate involvement with [A], a friend’s daughter. At paragraph 23, the family consultant records:
23. Mr Padovan is also aware that allegations have been raised about his involvement with “[A]”, the daughter of a mutual friend. He said that, during a visit to her home, [A] tried to initiate physical contact with him (attempting to touch and kiss him) which made him uncomfortable and he pushed her away and walked outside. He denied having kissed or touched [A] inappropriately. He said that he regrets not telling [A]’s mother what had happened at the time.
The family consultant records her observations of [X]’s interaction with the other adults at paragraphs 34-39 of her report. It is clear that [X] had a good relationship with her father. She was observed to spontaneously embrace her father, putting her arms around his neck and hugging him.
This, no doubt, assisted the family consultant to conclude at paragraph 43 that [X] has an attachment to her father, loves him, and would like to have regular time with him. The family consultant acknowledged, however, that the central concern in this matter is whether such time would place [X] at risk of unacceptable harm. At paragraphs 44-46, the family consultant considers some of the factual issues that are ultimately before the Court to determine. The family consultant mentioned that if the Court accepts the Mother’s account as being accurate, then there would be concerns about the Father having a sexual attraction to young girls around the same age as [X], thus placing her at risk of sexual harm, or of having exploitative photos taken of her, or of being engaged in sexual acts. Nonetheless, the family consultant recorded the Father’s strong denials about these allegations.
At paragraph 47, however, the family consultant refers to potential psychological harm associated with unsupervised time:
47. In addition to the risk of physical harm, there is potential psychological harm to [X] of unsupervised time. Ms Junge is clear about her experiences of Mr Padovan and his behaviour during their relationship. She said that has already had a conversation with [X] about protective behaviours. Unsupervised time may cast serious concern and doubt in Ms Junge’ mind about [X]’s safety and perhaps lead to increased vigilance. The negative impact of heightened anxiety on Ms Junge’ parental capacity as [X]’s primary carer is an important consideration.
At paragraph 48, the family consultant considered supervision:
48. Based on the information available, it is not possible to be unequivocal about whether time between [X] and her father would place her at risk. Supervised time would enable [X] to maintain a relationship with her father but ensure she is not at risk of physical harm/exploitation. Informal supervision is problematic however, especially if the supervisor does not believe the allegation or that any risk exists. For this reason, Ms A is not considered to be appropriate to undertake a supervisory role as she does not consider that Mr Padovan poses any risk whatsoever and readily leaves him with other children currently.
The Court notes that during his evidence, the Father acknowledged that his wife would not be an appropriate supervisor of his time with [X]. In her evidence, the Father’s wife certainly indicated a willingness to do so, but on the clear basis that she did not believe there was any risk of harm to [X]. Moreover, the Father’s evidence before the Court indicated that his relationship with his own family had broken down, so there was no one from the paternal side who might act as supervisor. All the evidence leads the Court to conclude that there is no one who would be a suitable informal supervisor for the Father’s time with [X].
At paragraph 49, the family consultant discussed formal supervised time:
49. Even if formal supervised time is ordered by the Court this is not without impact as it can be onerous, costly, restrictive and create increasing questions for the child about why it is needed. Supervision is generally a short, rather than long term, option. For many children supervised time becomes a burden as they reach a developmental stage when their peer relationships and extracurricular activities are prioritised by them.
The obvious difficulty of supervision being a short-term measure was recognised by all parties in this case.
The Court observes that the notorious difficulties of having long-term supervision was recently referred to by the Full Court in Betros (2017) FamCAFC 90 at paragraph 13. This means the options really are limited, should the Court find that there is an unacceptable risk of abuse.
The family consultant concludes her evaluation at paragraphs 50-53:
50. This is a matter which involves the weighing up of potential risk of harm with the potential loss of a loved parent. It is a difficult matter as it involves serious allegations of not completely unfounded concerns according to the subpoena material. Although Ms Junge’ allegations appear to have some credibility, Mr Padovan denies any responsibility for the images linked to his computer or the alleged physical contact with “[A]”. He has been unable to explain how the allegations have come to be made or why. It may be useful for the Court to have some more information about Mr Padovan’s mental health history and the reasons for his estrangement from his family of origin.
51. It is clear that [X] and her father do have a meaningful relationship which is important to them both. Severing this relationship, as proposed by Ms Junge, is likely to create loss and grief for daughter and father. Mr Padovan has had significant involvement in his daughter’s life and on the day of interviews, she demonstrated a yearning to see and to have contact with him. Ceasing this relationship, when an attachment clearly exists, and without clear certainty that Mr Padovan has behaved inappropriately, is potentially denying her to the opportunity to have a relationship with a father she loves. Facilitating an ongoing relationship however between Mr Padovan and [X], if Mr Padovan has behaved in a sexually predatory manner with children is a major concern.
52. There is no simple solution in this matter. On the information available it would appear that the least worst option may be for supervised time between [X] and her father to take place on a periodic basis to maintain a face to face link and emotional connection between them. The most child focused plan would be that the supervisors are people trusted by [X] and her mother, such as the paternal grandparents, however given Mr Padovan’s estrangement from them this is not considered feasible. Informal supervision by Ms Junge herself or her friends has been attempted but was not successful. A supervised contact centre would provide safety and transparency but the downside is that it is formal and restrictive. All contact taking place in such a context may be confusing and frustrating for [X].
53. The other alternative is that [X] spend no time with Mr Padovan. Such a proposal removes potential risk posed by Mr Padovan, and the need for ongoing restricted time which may lead to questioning by [X]. No time/contact would undoubtably be difficult for [X] but would allow her to develop and mature without potential risks in a supportive environment provided by Ms Junge. Mr Padovan receiving information about [X] such as school reports may be appropriate as well as correspondence at birthday/Christmas. If the Court makes an order for no time, Ms Junge may need professional input to assist her to answer [X]’s questions about why she is not permitted to see her father and to deal with [X]’s grief and loss about this.
The family consultant’s recommendations are found at paragraphs 54-57:
54. It is recommended that Ms Junge have sole parental responsibility for [X]
55. Unless the Court has sufficient information to discount the allegations made which suggest serious risk of harm, it is recommended that [X] spend no time with her father.
56. It is recommended that supervised time be ordered only if an appropriate long term supervisory arrangement can be established, for example a contact service
57. It is recommended that both parties receive counselling to assist them to accept any outcome of the Court.
Ms D was cross-examined. She readily accepted that the task before the Court, indeed the approach that she adopted in her report, was one based on risk assessment. This was a matter, ultimately, for the Court. She was cross-examined about the various possibilities for supervised time. She confirmed that from her perspective, and most certainly [X]’s perspective, long-term supervised contact was problematic. Even less frequent supervised contact, for example for recognition purposes, was a potential problem for [X]. [X] would have questions about why it is happening in this way, and she doubted the capacity of the parents to be able to adequately manage the provision of appropriate information to her. Reduced frequency contact would probably lead to a heightened sense of anxiety in the lead-up to that time, certainly for [X], and probably for her mother as well. [X] would become increasingly sensitive to her mother’s anxiety about this.
Ms D was asked for her professional opinion about whether the Father’s strident denials about the child pornography enhanced the risk. She believed that it did increase his risk profile if the Court found that there was a risk, notwithstanding his persistent denials of the same.
Ms D did not rule out the possibility of recognition contact about four times a year. She manifested no concerns about the provision of information.
In the end result, nothing arose in the cross-examination of Ms D that would detract from her report. Ultimately the role that her report plays in the Court’s decision will depend on its findings on risk issues.
Assessing the Risk of Harm to [X]
There is a considerable body of uncontested evidence before the Court. This will be recorded below, as it forms the foundation for the Court’s risk assessment exercise.
Documents produced by the New South Wales Police, and the Child Abuse Squad (omitted), is almost entirely consistent with the Mother’s evidence.
On 14 April 2015 the Mother was attending counselling at (omitted) Community Health. It was the fourth such session for her. The context was domestic violence. During this session she disclosed to her counsellor information which caused the counsellor to notify police. In short, the Mother made disclosures about viewing child pornographic material on the Father’s computer. The Mother also made a disclosure about an allegation that the Father may have interfered with the daughter of a friend, [A].
[A] was interviewed by JIRT on 27 April 2015. The transcript of her interview was in evidence. For present purposes, the following extract is relevant: -
“[A] was then asked directly through the use of leading questions about the information contained in the report. After several minutes of blocking the answers and responding with ‘I don’t remember’, [A] agreed that she did tell her mum about something that happened to her a long time ago. [A] said that she was at her house in … and someone tried to kiss her. [A] did not initially say who it was that tried to kiss her, but after sometime she said that it was her mum’s friend [Mr Padovan].
… [A] was asked where [Mr Padovan] had kissed her, and she pointed to her cheek. She was not able to provide any further details about what [Mr Padovan] had done or how she felt at the time.
[A] said that she felt quite angry with [Mr Padovan] and she wanted to kick him but she didn’t. [A] said that the first person she told about it was her mum and that she told her the same day and she got angry with [Mr Padovan]. [A] does not think that she saw [Mr Padovan] again after that. [A] was asked what she had told her mother and she said that she told her that [Mr Padovan] had tried to kiss her. [A] was quite withdrawn and her demeanour changed while talking about [Mr Padovan]…”
Following the interview with [A], [A]’s mother Ms R was interviewed. The narrative records that she was told that [A] had not made any disclosures of sexual abuse by Mr Padovan or anyone else “however her changes of demeanour and avoidance of questions left JIRT officers feeling that something has happened to her but she is not ready or willing to talk about it at this stage.”
Ms R’ participation in the narrative is recorded as follows: -
“Ms R said that Mr Padovan was an old family friend that she has known since she was about 15 years old. When Ms R was living at … 2-3 years ago, Mr Padovan used to visit the house two or three times a week for a period of several months. On one occasion she recalls Mr Padovan staying with [A] for about half an hour while she went to the shops. When she returned, Mr Padovan not any different but [A] was not happy and not herself. When she spoke to her later, [A] told her that he ‘tried to kiss her’. She was quite upset about it. Sometime later, Mr Padovan’s partner Ms Junge told her that Mr Padovan said [A] had been sitting on his lap and he had gotten an erection inappropriately – Mr Padovan said that [A] tried to kiss him and he pushed her away. Ms R did not have any further information about it as [A] refused to talk about it – she has not let Mr Padovan back into her house since that happened.”
On 10 June 2015 there is a record of a meeting with the Mother. The narrative records: -
“Ms Junge stated that toward the end of their relationship when she and the POI were having sex, the POI would play child pornography on his computer whilst they were having sex. She stated that he would be aroused when this was happening and would cause the POI to come to orgasm. Ms Junge stated that she had seen and access child pornography on their computer during the years they were together. However, she did not report this to police.”
On Friday, 26 June 2015 police met the Father at the police station for an electronically recorded interview with him. The relevant part of the narrative states: -
“He had previously been contacted over the phone days prior and informed that (omitted) JIRT were conducting an investigation into the information concerning [A]… The issue of the child pornography was not disclosed…
I informed him of the information regarding [A]… He was questioned regarding this incident. He described the incident in which [A] kissed him on the cheek. The version was similar to that of [A]’s interview. However, he indicated [A] kissed him rather than it was he who had kissed her.
Mr Padovan stated that he was seated on the couch at [A]’s home when she sat on his leg and kissed him on the cheek. Mr Padovan stated that he rebuked [A] and told her that children do not kiss adults other than parents and family members. He said other than [A] kissing him on the cheek, there was no other contact between them. It was put to Mr Padovan as to whether or not any further contact took place as suggested in the contact report. That is, that he kissed [A] on the lips and felt her buttocks with his hand. Mr Padovan denied these assertions and stated that he had never acted inappropriately to [A] or any child for that matter.
Following this, Mr Padovan was questioned as to whether or not he had ever looked at child pornography. He stated that he might have looked at pornography when he was younger of people the same age as he was but reiterated that he had never looked at child pornography.
Mr Padovan stated that when he was in a relationship with his ex-partner, Ms Junge, they would watch pornography together on his computer while they had sexual intercourse but never child pornography…”
On 10 August 2015 the Father attended the (omitted) JIRT office and handed to them “his custom-built PC tower” which, the Father indicated, had been in storage for the past number of months as he was in between residential addresses.
At 10.30am on Wednesday, 23 September 2015 the hard drive computer tower was delivered to an accredited police technician who was certified in the triage and examination of exhibits subject to major crime. The narrative records: -
“Following the examination of Mr Padovan’s computer… I reviewed a number of images that were located on the computer hard drive. I observed Child Abuse Material in the form of digital images located in the Deleted Files section of the computer hard drive. I also observed a number of digital images of young girls in swimwear posing in provocative manner. I also observed a number of references to web-based material that related to child abuse material.”
The narrative records that a decision was made to submit the computer for further assessment.
On Tuesday, 9 December 2015 the computer was conveyed to SEEB for the purpose of conducting a forensic examination of the same. The narrative records: -
“There was no child abuse material located on the computer hard drive. However, a number of items in the form of child abuse material was recovered in Deleted Files. Specifically, the located material were thumbnails of pictures or videos viewed by someone using Mr Padovan’s computer. The location and the format of the located images would not amount to a prima facie offence of possession of child abuse material. It appears that the files were stored on an external storage device and subsequently viewed using Mr Padovan’s computer.”
On 3 February 2016 a letter was written to the Father’s then solicitors, Hennikers Lawyers, being a request to ascertain whether the Father would agree to be formally interviewed in relation to the child abuse material located on his computer identified from the SEEB examination on 9 December 2015. The records state that on 5 February 2016, Hennikers stated that the Father would be agreeable to the interview.
On 8 February 2016, the Father was contacted in relation to a date and time for the interview. On Wednesday, 17 February 2016 an appointment was arranged for Friday, 17 February 2016.
At 10.30am on Friday, 19 February the Father was interviewed with the Child Abuse Squad detectives. He was accompanied by his wife, Ms A. They were separately interviewed and statements taken. The relevant part of the narrative is as follows: -
“Mr Padovan stated that he obtained the computer in 2010 and replaced the graphics card in the system as he used it mainly as a gaming computer. Prior to police obtaining possession of the hard drive, it had been in storage…
Mr Padovan was questioned again directly and asked if he had viewed child pornography on his personal computer. He denied looking at child pornography but conceded he did look at regular heterosexual pornography on the internet…
Mr Padovan was questioned on who had access to his computer, and he nominated his ex-girlfriend Ms Junge and his current wife Ms A. He was asked directly if he was aware of, or if he had seen either Ms Junge or his wife Ms A look at child abuse material on his computer. He stated he was not aware of them accessing this type of material on his computer. He hadn’t seen them looking at child abuse material on his computer at any stage.
He was also questioned as to what his computer was mainly used for, and he stated he used it for browsing on the internet, watching movies and storage of photographs and home videos. He was asked whether he stored files on the computer hard drive or external devices connected to the computer. Mr Padovan stated that any files that were saved to his computer were saved directly to the hard drive. He stated he never used storage devices such as USB flash drives or portable hard drives to save documents or files on his computer.
At the conclusion of the interview, I spoke with Mr Padovan and stated that I believed someone had looked at child abuse material on his computer…”
On 22 February 2016, the police interviewed the Husband’s wife, Ms A. The relevant extract is as follows: -
“She indicated that she would, at times, check the internet history and saw that Mr Padovan on occasions had accessed pornography on the internet but described it as heterosexual pornography between consenting adults. Ms A made it clear that Mr Padovan did not have to hide his interest in pornography from her. She states that in the time she has been in a relationship with Mr Padovan, she has never known him to have an interest in child abuse material.
In her statement, Ms A stated that when she used Mr Padovan’s computer, she did not see any USB drives or storage devices plugged into Mr Padovan’s computer.
Ms A stated that she never observed any child abuse material on Mr Padovan’s computer. She indicated she has never viewed or accessed any child abuse material on Mr Padovan’s computer or any other computer.”
The Mother was interviewed on 24 February 2016. The Mother’s statement is lengthy. As the Father did not put in contention the Mother’s evidence about what she saw on his computer, the narrative will be summarised rather than reproduced in these reasons or extracted. The Mother gave quite a detailed statement about the child abuse material that she viewed on the Father’s computer comprising photographs and videos of children of various ages either wearing swimwear, clothes, or naked, and engaged in sexual acts either with each other or with an adult male. She first observed this in 2008. On one occasion she found child abuse material in a folder called “[Mr Padovan]'s Folder”. The Mother did not tell the Father anything about what she had seen. She was scared but felt that if she said anything the Father would put a password on the file and prevent her from accessing it. She saw that, from time to time, [Mr Padovan]'s Folder included material that had been added or removed.
When given the opportunity to explain why she did not say anything to the Father, the Mother stated: -
“Looking back now since we’ve split up, I can say that at that time, Mr Padovan and I had become very good at pretending things weren’t happening. Our relationship was deteriorating badly around this time. I don’t do the confrontation thing and if I find myself in conflict, I just freeze. I find it hard to deal with conflict situations. The child porn I saw was just way too difficult for me to deal with and I would shut it all away rather than confront Mr Padovan about what I’d seen.”
The Mother continues in her statement to describe that when she and the Father would have sex, he would make reference to young girls in order to arouse himself, including playing a video clip of child porn whilst having sexual intercourse with the Mother.
In relation to [A] the narrative records as follows: -
“Ms Junge stated that about a year and a half ago, she and Mr Padovan were speaking on the phone. Their relationship had ended at that stage but they were talking on the phone when Mr Padovan said to her: ‘I was at [Ms R]’s house and [A] jumped on my lap and started to kiss me. I kept pushing her away but she was rubbing my penis.’
[A] is the daughter of Mr Padovan’s friend, Ms R.
Mr Padovan said that he moved away from [A], physically moved her and then he went out the back for a smoke. Mr Padovan said that [A] went out to where he was and he said that [A] kept trying to kiss him. As she was doing this, Mr Padovan started to kiss her back, and as he kissed her, he started to squeeze her bottom. He wanted to talk about it person but Ms Junge made him talk over the phone. He didn’t say how the incident ended.”
Apparently the Mother was in shock after this, and rang [A]’s mother. She stated that they were both sceptical of the truth of what the Father had told her.
The material set out above reflects what each of the persons referred to told police. The Mother, the Father, and the Father’s wife each provided affidavits in this case.
The account relating to these matters contained in the Mother’s affidavit of 1 May 2017 is broadly, but not entirely, consistent with the statements she gave to the police. As the Father was representing himself, and as the Independent Children's Lawyer quite appropriately took the view that it was not his role to conduct a forensic examination of any inconsistencies in the Mother’s evidence, the Court is left with the Mother’s evidence as it is. The Father does not doubt that the Mother saw on the computer what she says she saw. He does put in doubt the dates that she alleges. He strongly denied that he placed the child abuse material on the computer. The Court must, of course, assess the evidence for itself. Whilst some seeming inconsistencies between the Mother’s statements to police, and her affidavit, are present the Court’s impression is that they do not, in the circumstances of this case, detract ultimately from the weight that would be given to the Mother’s evidence. Thus, even if the Mother was mistaken about dates, and even if there are inconsistencies between the Mother’s accounts about why and how she happened to be looking on the Father’s computer, the uncontested fact in this case is that she found child abuse material there. Any inconsistencies in her evidence do not, therefore, detract from her credibility.
By way of contrast, however, there are some important inconsistencies between the Father’s evidence to the Court, and his statements to the police.
The first area of inconsistency relates to the Father’s dealings with [A]. This issue needs to be considered in detail, and will be discussed below.
The next area of inconsistency is in relation to the Father’s evidence about having access to a computer from 2008 onwards. What became obvious from the Father’s own evidence in cross-examination is that his insistence that he “didn’t have a computer” (transcript page 70, line 42) was plainly inconsistent with his evidence that he had access to a computer at all relevant times, either at his parent’s home, or at accommodation being used by the Mother and himself. The Court finds as a fact that at all relevant times since 2008 the Father and the Mother had access to a computer, indeed the same computer, in the accommodation where they were living.
Whether it technically belonged to the Father, or not, is plainly irrelevant. But he appeared to seize on the issue of ownership of the computer, rather than possession, as being somehow significant. Moreover, where the Father asserted in cross-examination by Mr David that not only did he not own a computer until 2011, but that he did not “have possession of” a computer, (transcript 9 May, page 131, line 30) that was plainly incorrect. The photographs in evidence certainly suggest he possessed a computer and, in any event, had access to a computer where he was living.
Another inconsistency in the evidence is that the police records record that before the Father attended for an interview, he was told by the police what was the purpose of the interview. This is plainly inconsistent with the Father’s evidence in cross-examination with Mr David at page 137 of the transcript.
When the Father was confronted about the photographs that became exhibit A7 and A8, and it was pointed to him that the photograph clearly showed a laptop sitting on his bookshelf, he explained (transcript page 148, line 23) that he had “no idea who it belonged to”. This is plainly implausible in a case like this where having access to a computer was a central issue.
The Matters relating to Ms R
It is necessary to consider the different accounts given in relation to the child, [A].
During the family report interviews held on 21 March 2017, the family consultant records the father’s response about [A] in the following terms at paragraph 23:
23. Mr Padovan is also aware that allegations have been raised about his involvement with “[A]”, the daughter of a mutual friend. He said that, during a visit to her home, [A] tried to initiate physical contact with him (attempting to touch and kiss him) which made him uncomfortable and he pushed her away and walked outside. He denied having kissed or touched [A] inappropriately. He said that he regrets not telling [A]’s mother what had happened at the time.
In cross-examination, the Father agreed that this was the only incident involving [A] that he told the family consultant about.
The Father’s wife, Ms A, refers to [A] at paragraphs 50-61 of her affidavit affirmed 29 January 2016. It is useful to reproduce paragraphs 49-61:
49. Mr Padovan had told me about Ms R and [A] months before the party.
50. Mr Padovan stated that the daughter’s father was physically and sexually abusive to the mother and daughter, and that the father had little or nothing to do with them because of this.
51. [A] was and is extremely mentally and sexually confused.
52. [A] had and has made sexual passes at many men before; Friends and family members of Ms R’s.
53. [A] has been caught naked in bed with a neighbour and friends from school.
54. Mr Padovan told me that Ms R had disclosed this information to him and had warned him to be careful of [A] and to tell her if she makes any sexual passes of any kind towards him.
55. Mr Padovan had told me he was at Ms R’s one night late 2013, as normal as any other night of the week, sitting on the lounge with Ms R watching TV.
56. Ms R’s phone rang and she stepped out of the room for a minute when [A] came and sat down next to him.
57. Mr Padovan didn’t think anything of it until she started getting closer and closer to him and trying to touch him.
58. He immediately got up and spoke to Ms R and told her he was uncomfortable and left.
59. Mr Padovan still continued going to visit after that he just distanced himself from the child.
60. Ms R told Mr Padovan not to worry about it as it happens often and that it’s understandable behaviour after what the child has been through and to forget it.
61. Mr Padovan told Ms Junge of the above mentioned situation a few months later as he had forgotten all about it as Ms R had told him to forget about it.
An issue before the Court is whether, in fact, the Father provided this information to his wife in order to put events involving [A] into a different light. As will be noted below, there are significant discrepancies between the account of Ms A as to what the Father told her, and what [A]’s mother deposes to telling the Father.
The Father told the family consultant that [A] attempted to kiss him, a significant fact that is not mentioned in the above account given by Ms A.
In the Father’s affidavits of 17 July 2015, 5 February 2016, and 1 May 2017, he deals with the [A] incident by referring back to the allegations made by the Mother (which will be dealt with presently), and he says: “the alleged incident was never an ‘incident’.” It is only in his most recent affidavit, i.e., the trial affidavit that the Father adds the words: “and did not occur as the applicant has alleged it did.”
The Mother’s account of the [A] incident is found at paragraphs 110-118 of her trial affidavit sworn 1 May 2017. Her evidence is in almost identical terms to that in which she gave in her earlier affidavits.
The relevant paragraph is 113:
“The respondent told me what me what happened and said words to the following effect:
a)“I was on the lounge watching TV with [A] and then she jumped on my lap and started nuzzling me and cuddling me and trying to kiss me. She then started to kiss me and she kept going. She started to touch me. I got really uncomfortable and went outside for a smoke.”
b) “When I was outside for a smoke, she followed me out there. She started kissing me again and touching me. I then was kissing her and touching her back.”
c) “She started it.”
The Mother deposes that this was a conversation she had with the Father in early to mid-2014. She deposes at paragraph 114 that after the Father made these disclosures to her, she contacted [A]’s mother, Ms R, immediately and told her the story.
At paragraph 129 of the Mother’s affidavit, she deposes to her solicitor receiving a letter from the Father’s solicitor dated 14 March 2016 referring to the incident in question. The letter in question is annexed to the Mother’s affidavit and the relevant paragraph states as follows:-
“Our client agrees that a young child, [A], kissed him and then tried to touch him inappropriately without any encouragement from him and he was quite shocked. Apparently, [A]’s father used to abuse her and your client advised Mr Padovan of this. Mr Padovan previously noted that she was sexually unusual and somewhat inappropriate for a child due to her unfortunate past experience with her father. Accordingly, Mr Padovan has sympathy for young [A] but has not encouraged her in any way to do the abovementioned activity, which took him completely by surprise when he was seated on a lounge.”
As will be seen below, in cross-examination, the Father asserted that he did not give instructions to his solicitor to say the matters referred to above.
[A]’s mother, Ms R, affirmed an affidavit on 10 May 2017 dealing with the issues pertaining to [A]. The affidavit of Ms R contains nine paragraphs of which paragraphs 2-9 are relevant for present purposes, and will be reproduced:
2. Mr Padovan was attending my home 2-3 occasions per week for a period of approximately 4 months in late 2013.
3. I became aware of an incident between my daughter [A] and Mr Padovan in approximately early 2014 from Ms Junge. My understanding of the incident from Ms Junge was that Mr Padovan was sitting on the lounge at my place with [A] when I went to the shops and that he kissed my daughter and touched her inappropriately. I recall when I returned from the shops that [A] was behaving differently and was withdrawn.
4. I was not aware of the details this incident, until Ms Junge brought it to my attention.
5. Mr Padovan has never spoken to me about the incident.
6. [A] is currently attending upon a counsellor arising from this incident and other issues she is dealing with. [A] has changed schools.
7. I spoke with the Police and the Joint Investigative Response Team in mid 2015 in relation to the incident. Everything I told the Police and JIRT was to the best of my knowledge, true and correct.
8. So far as I am aware there has only ever been one incident involving my daughter and Mr Padovan.
9. I repeat that I have never spoken to Mr Padovan about this incident.
The Court notes that the Father’s statement to the family consultant that he had not told [A]’s mother about what happened, is consistent with [A]’s mother’s evidence. [A]’s evidence is also consistent with that of Ms A, the Father’s wife, in that both assert that [A]’s mother became aware of the incident as a result of what the Mother in these proceedings told her. It is hard to imagine how the Mother in these proceedings could have been able to tell [A]’s mother about the incident unless, as the Mother contends, the Father told her.
The police records have already been extracted earlier in these reasons for judgment. By way of summary, [A] told police in the JIRT interview that someone tried to kiss her, and that that was her mum’s friend, Mr Padovan. [A] indicated that Mr Padovan had kissed her on her cheek.
[A]’s mother, Ms R, was interviewed by the police, and she confirmed that [A] told her that Mr Padovan “tried to kiss her”. She confirms that the rest of her knowledge was based on what the Mother in these proceedings told her:
“Some time later, Mr Padovan’s partner, Ms Junge told her that Mr Padovan said [A] had been sitting on his lap and he had gotten an erection inappropriately – Mr Padovan said that [A] tried to kiss him and he pushed her away.”
The notes relating to the police interview with the Father records that the Father’s version of the incident in which [A] kissed him on the cheek was similar to that of [A]’s version, except that he indicated [A] kissed him rather than the other way around. The narrative continues:-
“Mr Padovan stated he was seated on the couch at [A]’s home when she sat on his leg and kissed him on the cheek. Mr Padovan stated that he rebuked [A] and told her that children do not kiss adults other than parents and family members. He said other than [A] kissing him on the cheek, there was no other contact between them. It was put to Mr Padovan as to whether or not any further contact as suggested in the contact report. That is, that he kissed [A] on the lips and felt her buttocks with his hand. Mr Padovan denied these assertions and stated that he never acted inappropriately to [A] or any child for that matter.”
It is interesting to note that the Father gave this account on Friday, 26 June 2015 but nowhere in the four affidavits that he filed in these proceedings, does he provide this level of detail.
The Mother’s statement to police was given on 24 February 2016. In this statement, the case narrative records as follows:-
“Ms Junge states that about a year and a half ago, she and Mr Padovan were speaking on the phone. Their relationship had ended at that stage, but they were talking on the phone when Mr Padovan said to her, ‘I was at Ms R’s house and [A] jumped on my lap and started to kiss me. I kept pushing her away, but she was rubbing my penis’.
[A] is the daughter of Mr Padovan’s friend, Ms R. Mr Padovan said that he moved away from [A], physically moved her and then he went out the back for a smoke. Mr Padovan said that [A] went out to where he was and he said that [A] kept trying to kiss him. As she was doing this, Mr Padovan started to kiss her back and as he kissed her, he started to squeeze her bottom. He wanted to talk about it in person, but Ms Junge made him talk over the phone. He didn’t say how the incident ended.”
The Mother’s typed written and signed statement dated 24 February 2016 was also in evidence. It is in almost identical terms to the case narrative extracted above.
It is unfortunate that the Mother was not cross-examined about the discrepancies between the statement she gave to the police, and her sworn evidence in these proceedings. The two accounts are similar, but by no means identical.
The Mother was cross-examined. Specifically, the Father cross-examined her about the evidence the Mother gave in relation to finding child pornography on the computer that was used by them. She maintained her evidence. The Father did not cross-examine the Mother in relation to her evidence about [A]. The Mother’s evidence about [A], and generally, remained completely intact.
[A]’s mother, Ms R, was cross-examined. In cross-examination conducted by Mr David, the Independent Children's Lawyer, Ms R denied ever telling the Father that [A]’s father had been physically and sexually abusive towards either [A], or to herself. She confirmed, however, that there were issues about [A]’s father’s conduct with his stepchildren. She maintained that there were no issues about [A]’s father’s inappropriate conduct with either [A], or with herself. She agreed that she did tell this to the Father. She gave evidence that she had never told the father that [A] had made advances of a sexual nature to other men. She had never told the Father that [A] was caught naked in bed with anyone, but she did explain that [A] had been caught playing doctors and nurses under the bed covers with a six year old neighbour. She agreed that she was concerned about some aspects of [A]’s behaviour, but not of a sexual nature. She had probably discussed her concerns with the Father in these proceedings.
In relation to how Ms R became aware of the allegations involving her daughter, she agreed that she became aware of the details through the Mother in these proceedings, but she had previously known, as a result of what [A] had told her, that the Father had kissed her. Ms R stated that [A] told her about the night in question. She agreed that she had gone out for a short period, in effect, leaving [A] alone with the Father. The Father mentioned nothing to her, only [A] later on that night. She did not discuss this incident with the Father at all. Ms R believes that the incident involving [A] and the Father occurred either in the second half of 2013, or the first half of 2014.
Ms R confirmed that there was no time when the Father had told her about a similar incident involving [A] and himself. Indeed, there had been no discussion between the Father and herself about [A] and the incident in question. She denied ever telling the Father anything to the effect of not to worry about it.
The Father cross-examined Ms R about this. When asked to explain why she had not reported it to the police, she explained that she “brushed it off, not wanting to believe it of a friend of mine”. She agreed that she subsequently saw the Father at [X]’s fifth birthday, together with his wife. She agreed that she was cordial towards both of them. She did not recall if she gave him a hug, and a friendly hello. She did not recall if she tried to stop [A] from going near him.
The evidence of Ms R remained completely intact, after cross-examination.
The Court records at this stage of its reasons for judgment that it does not accept the proposition, expressed or implied, that the evidence of a witness is any less credible because there was a delay in reporting matters to the police. The evidence of Ms R, in particular, was entirely plausible. It would have been very difficult for her to believe that a trusted friend would do the things alleged.
Before considering the cross-examination of the Father, and his wife, it is important to record that so far in this examination of the evidence in relation to [A], there is only one alleged incident.
The Father was extensively cross-examined. The present focus is in relation to [A].
On 8 May 2017, in cross-examination by Mr Ford, Counsel for the Mother, the Father’s evidence was that he did not tell [A]’s mother about the incident when [A] kissed him because he did not think at the time that it was significant enough to raise with her mother. (Transcript page 70). The Mother’s version of what the Father allegedly told her was put to him. He insisted that it did not occur as the Mother described.
He was taken to his own solicitor’s letter dated 14 March 2016. He insisted that he did not give instructions to Mr Henniker to say the matters that he did in that letter. He asserts that he did not approve the letter before it went out. The Father insisted that the assertion in the letter that [A] tried to touch him inappropriately was incorrect and he accused Mr Henniker of being “prone to adding his own flair to everything.”
The Court does not accept the Father’s evidence in relation to the letter from his solicitor, Mr Henniker. There was no evidence to suggest, nor even an assertion to the effect, that any attempt was made to correct what the Father described as a paragraph in a letter made without instructions. It is highly unlikely. The rest of the letter, for example, appears entirely consistent with a letter between the solicitors for the parents seeking to negotiate the terms of the Father’s time with [X]. Moreover, when the contentious paragraph is examined closely, much of it is, in fact, uncontentious, or is based on evidence in the Father’s own case. For example, the Father himself said in cross-examination that he was shocked when [A] kissed him.
The Father’s wife gives evidence about what the Father told her about [A]’s father’s alleged abuse of her. Much of what is contained in this letter is quite consistent with the Father’s case. It is highly unlikely, therefore, that the assertion that [A] “then tried to touch him inappropriately” was an assertion that was, in effect, a rhetorical flourish of the Father’s solicitor.
The more likely scenario, the Court concludes, is that the letter in question is an inconsistency in the Father’s account about what [A] allegedly did. The letter is more consistent with what he told the family consultant as recorded at paragraph 23 of the family report and inconsistent with what he told the police on 26 June 2015. The Father’s attempts to distance himself from his own solicitor’s letter is found by the Court to be an unconvincing attempt by the Father to explain the inconsistencies in his evidence in this regard.
The next day, 9 May 2017, the Father was cross-examined about the evidence that his wife gave in relation to [A] in her trial affidavit. He agreed, as indeed his wife agreed in cross-examination, that whatever information his wife gave in relation to [A] must have been based on what he told her, unless she made it up. He was taken through his wife’s account of their discussion. He was confronted with his wife’s evidence that after [A] tried to touch him, he got up and spoke to [A]’s mother. The relevant extract commences at line 1, page 81 of the transcript and concludes at page 82, line 2:
MR FORD: Sir, I’m showing you paragraph 58 of Ms A’s affidavit sworn 29 January 2016 and I’ve put a little yellow sticker there to assist you. Do you see that, sir?‑‑‑Yes, I do.
Continuing:
He immediately got up and spoke to Ms R.
Okay?‑‑‑Okay.
All right. Can we please now have the truth, sir? Did you speak to [A]’s mother immediately after this incident or not?‑‑‑No, I didn’t.
That can be returned. You see, in that version between paragraph 55 and 58 of Ms A’s affidavit, that differs significantly to the versions that you have previously given in this court. Would you agree with me, sir?‑‑‑That it differs, yes.
Yes. And it differs because you, first of all, don’t reveal anything to your wife about the fact, on your own version, that [A] kissed you?‑‑‑No, I don’t.
You don’t reveal that to your own wife when you’re talking to her about this very sensitive and uncomfortable issue?‑‑‑As it is sensitive and uncomfortable, yes, I didn’t talk to her about it.
Well, no, sir, you did talk to her about it because you had indicated before I showed you this affidavit you had a discussion with your wife. You did talk to her about the [A] incident, didn’t you?‑‑‑Not to the extent that it says in her affidavit.
That was a yes and no question. You did talk to your wife about the [A] incident?‑‑‑Yes, I did.
Thank you. Why didn’t you tell your wife that [A] had kissed you?‑‑‑I didn’t deem it relevant at the time.
Sir, I’m going to give you an opportunity to explain to his Honour what you mean by “deem it relevant” in the context of the [A] incident. Can you explain what you mean by ‑ ‑ ‑?‑‑‑I didn’t deem any of the entire situation relevant. I don’t feel that I should have to disclose my entire life to anyone. It’s not like you hand over your police history every time you get into a new relationship.
Don’t you think it was relevant that, on your version, [A] kissed you?‑‑‑To tell that to my wife? No, I don’t believe that was relevant.
Were you trying to make lighter of the situation by not revealing to your wife that [A] had kissed you?‑‑‑No.
Did you lie to your wife about telling [A]’s mother?‑‑‑I don’t know where my wife got that from, but I never told her that I had told Ms R anything.
The difficulty that arises from this evidence is not just the internal inconsistency with the Father’s own evidence, but the obvious inconsistency with his wife’s evidence. When asked to explain the differences in versions, he was unsure. He insisted that he did not tell his wife about [A] kissing him. He insisted that he did not tell his wife that he disclosed the incident to [A]’s mother Ms R.
Another significant extract from the transcript that commences at page 83, line 22 and concludes page 84, line 37:
You see, Ms A goes on at paragraph 59 to say:
Mr Padovan still continued going to visit after that and he just distanced himself from the child.
Now, was that true? Did you, first of all, say that to your wife, Ms A, that you continued ‑ ‑ ‑?‑‑‑I think you might be getting your timelines mixed up. This is a separate occasion.
Did you at any stage, sir, say to Ms A ‑ ‑ ‑?‑‑‑This – this isn’t in relation to the alleged event that happened. This is a previous occasion.
Sir, you’ve said to this ‑ ‑ ‑?‑‑‑Which I did voice to – to [A]’s mother my concerns. Sorry, your Honour, I’ve been completely confused on dates. This is a completely separate incident.
How many [A] incidents are you aware of?‑‑‑Two.
Two?‑‑‑So the one that my wife goes on about in her affidavit is a separate incident.
So there have been two incidents where you were alone with [A] and she approached you, you say, inappropriately and either kissed or touched you. Do you agree with that proposition?‑‑‑Yes.
Will you please give his Honour the dates of those two [A] incidents?‑‑‑You’re asking me to remember something from four years ago. I can’t give you an exact date on that. I have trouble remembering the day of the week let alone things that happened four years ago.
Were you interviewed by the police about this additional incident?‑‑‑No, I wasn’t.
When you spoke to the police, had the additional incident already occurred or did it occur after you spoke to the police?‑‑‑Beforehand.
Right. So you spoke to the police in 2015?‑‑‑Yes.
So we can safely assume that some time between 2013 these two [A] incidents occurred. Would you agree with that proposition?‑‑‑Yes.
Yes. And yet when the police were speaking to you and after they had examined your computer and you knew you were under investigation, you decided not to reveal the second [A] incident. Is that proposition correct?‑‑‑Yes.
HIS HONOUR: Can I get the order of things right?‑‑‑Yes.
So there were two [A] incidents?‑‑‑So the one that my wife references in her affidavit happened before the one that the – that was investigated by police.
All right. So ‑ ‑ ‑?‑‑‑And the mother was well aware of that; said, “Don’t think anything of it. Nothing to worry about. End of story.”
Okay. But just so I get this right in my mind though, by the time you were interviewed about the police, there had been two incidents involving [A]?‑‑‑Yes.
Only one of which was told to the police; is that right?‑‑‑.....
Thank you.
MR FORD: Did you just say yes to his Honour?‑‑‑Yes.
Thank you. Sir, I want to suggest to you that you are lying about this second [A] incident. I’m putting to you, sir, a direct proposition that you are lying?‑‑‑I’m not lying.
For the first time in the evidence, and obviously in the course of cross-examination, the Father asserted that there were in fact two incidents involving [A]. Thus, the Father explained, his wife was referring to a separate incident in her affidavit.
The Court observes that this was a troubling development in the evidence. It had nowhere been asserted elsewhere in the evidence that there had been more than one incident involving [A]. The Court notes that shortly before adjourning on 8 May 2017 the Father was warned about the importance of not discussing this Court case, or the evidence that he had given, with anyone but especially his wife.
The following day, on resumption of cross-examination by Mr Ford, the Father was asked whether he had overnight thought about his evidence in relation to the [A] incident. He explained that he had not changed his point of view on that. Indeed, he had not even given it more thought overnight.
Of concern to the Court is evidence that Ms A gave on the next day, i.e. 10 May 2017. The relevant extract is found at transcript page 202, line 4, concluding line 29:
Did you have any other conversations?‑‑‑No.
So nothing after Tuesday?‑‑‑No.
You’re aware, aren’t you, from discussions with your husband that there was a situation involving a little girl named [A]?‑‑‑Yes.
Doing the best you can, can you recall when you first discussed that situation with your husband?‑‑‑Are we talking about the situation that was reported to the police or the conversation that I had with my husband that I put in my affidavit?
You’re making the distinction, aren’t you, between two separate incidents?‑‑‑I’m not making a distinction. I don’t know if – if the conversation my husband and I had was about the incident that was reported to the police or not.
And how do you know that that’s an issue in these proceedings?‑‑‑I’m not sure if it is an issue.
Have you discussed those two issues with your husband in the last 24 hours?‑‑‑No.
Are you being truthful?‑‑‑Yes.
Because in your affidavit – and I will give you a copy in a moment to check – you don’t mention the second [A] incident, do you?‑‑‑I didn’t realise there was a second incident.
At the close of evidence on 9 May 2017, the Father must have been aware of the inconsistency between the evidence he had given, and that of his wife, described above. His wife was not present at any relevant time during cross-examination. The extract from her cross-examination above is of concern. Why did Ms A draw the distinction that she clearly did in her evidence, so early in her evidence? Why did she so readily volunteer the distinction between what her husband may have told the police, and what he told her? A reasonable hypothesis is that, somehow, she became aware of the inconsistencies in their evidence and was seeking to provide evidence consistent with her husband’s assertion of two incidents involving [A]. The Court is left with grave reservations about the Father’s wife’s evidence in this regard. The Court considers there to be a real risk that, in fact, both the Father and his wife discussed the evidence during the course of the hearing and, reacting to the emerging inconsistencies in the Father’s case, sought to accommodate the same.
The introduction by the Father of evidence about a second incident in relation to [A] certainly introduced an element of confusion to the evidence, irrespective of whether he intended that to occur or not.
The cross-examination of the Father about the two [A] incidents revealed that, according to the Father, the incident that is referred to by his wife in her affidavit preceded the incident that was investigated by police. He agreed, therefore, that by the time he was being investigated by police about [A], there had in fact already been two incidents involving her, and he did not disclose the first one. In further cross-examination he agreed that he had not disclosed the first one to the family consultant either, or to the Court, believing it was not relevant. He agreed in cross-examination that both incidents occurred in late 2013. When pressed about how far apart they were time-wise, he said it was within a matter of months. It was very hard to pin the Father down about the time period for the two incidents. Doing the best the Court can to understand his evidence, the Father seemed to be saying that the two incidents occurred anywhere between June and December 2013. The Father’s evidence is that he approached [A]’s mother after the first incident, but not the second one.
The Court was concerned to understand the differences between the two incidents. The transcript records at page 88, lines 21-37:
HIS HONOUR: Well, in fact and with respect, Mr Padovan, you’re the one who knows what happened. How about you tell me the differences between these two events? Let’s deal with the first one?‑‑‑Okay. So ‑ ‑ ‑
What happens at the first one?‑‑‑The first time as – as my wife goes on in her affidavit, sitting on the lounge. Ms R answers the phone; walks out of the room. [A] tries to kiss me. I push her away and say “Not on”. Go and talk to her mother about it and her mother says, “Don’t worry about it. She acts out sometimes. All good.” So the second time the – it happens, I’ve already spoken to her about it once. She said, “Don’t worry about it.”
MR FORD: Sir ‑ ‑ ‑
HIS HONOUR: Sorry. Was it exactly the same event? Did [A] do exactly the same thing, did she?‑‑‑A little bit more forceful the second time but, yes.
Carry on.
The Father explained that he did not report the second incident to [A]’s mother because of the reassurance she gave him the first time. Of course, [A]’s mother denied that anything was ever said about the incidents.
In cross-examination, Counsel for the Mother criticised the Father for not disclosing the second incident to police. In the context of a criminal investigation, the Father’s response that in effect he only answered the questions asked of him is understandable. From his perspective, they were asking questions about one isolated event. It is hard to be critical of the Father in this context. Of course, the same cannot be said in relation to the family report interview, and his failure to disclose in that context. Indeed, in cross-examination the family consultant confirmed that based on what the Father told her, she believed there had only been one incident with [A]. Indeed, when asked by Counsel for the Mother as to whether she as family consultant was concerned about the Father’s admission of a second [A] incident, Ms D said the following at transcript page 166, lines 11-37:
And, in fact, his own wife in her affidavit of 29 January 2016, which I note you’ve read from the index on page 2 of your report, from paragraph 55, speaks about only one incident. A number of questions flow from that. Are you concerned, firstly, that there were – and there is now admitted by the father, two [A] incidents?‑‑‑Yes. I think it’s – in my interview with the father, I asked a number of open questions, in terms of his past behaviour or around the allegations which had been made about him, and as I said earlier, he was very steadfast in his denial of ever acting inappropriately or – or ever being in – in those kind of situations previously. And I asked him to describe to me what had happened in – in the situation with [A], which he did, and I have notes about that. And one of the things he did say to me – and I think I did document it in the report – is that he regretted that he hadn’t spoken to [A]’s mother, that he – he – it was silly or it was stupid that he had – that it was a situation – would you like me to – to – would it be helpful to the court if I say what’s in my notes then?
HIS HONOUR: Thank you very much, I would be grateful?‑‑‑All right. So I asked him an open question in relation to the incident with [A] and he said that a friend’s daughter had behaved very inappropriately with – towards him, he felt very uncomfortable with the situation, that [A] had tried to initiate things that weren’t a – he didn’t feel were age appropriate, that she tried to kiss him and – and feel him up, that she was quite insistent. He felt very uncomfortable and he walked out to have a cigarette. And he was very uncomfortable. He – he said a few times that he was quite uncomfortable with this, and that he didn’t tell [A]’s mother or confront her about what had happened, which he – he later felt quite stupid about, that he hadn’t addressed that at the time. So that seems to be quite at odds with the – what you’ve just described to me, in that I think you said he had spoken to her mother.
Ms D later accepted that had the Father disclosed the two [A] incidents to her in interview, that would have heightened her level of risk, and it raised questions in her mind about why the Father would put himself in that position for a second time. Had she known, the family consultant explained, she would have asked further questions about why he would put himself in a situation again with the child without speaking with the child’s parent. She described as “concerning” that he would place himself in that sort of situation again. A little later in cross-examination the family consultant raised another concern, and that was the seeming similarity of the two incidents in terms of the child’s behaviour, which again raised issues in her mind about the Father’s behaviour.
The family consultant’s concerns are summarised at transcript page 172, lines 24-32:
Why is that?‑‑‑Look, I think there are certainly indicators in this case which cause concern. I think that the mother’s account was quite compelling and quite detailed and quite specific in – in the history she recounted to me of her concerns with the father. The father’s account, on the other hand, was quite vague and – and clearly he has omitted information to me which has come out in the court. And he was unable to give me an explanation of how some of these things might have come about or why or – or – or give me any kind of coherent history of those things, which is concerning. So certainly there are aspects which are particularly concerning here, I think.
Returning to the Father’s cross-examination, he was criticised for not disclosing the two [A] incidents in his trial in his affidavit. The Father’s response was that he did not consider it relevant. The Court does not accept this explanation. If a second incident involving [A] had occurred, the Father, even though representing himself, must have reasonably understood that it would be relevant to the Court in assessing the risk, if any, to [X]. It seems there are two possible scenarios. On the first scenario the Father did not disclose the incident because it occurred, and because he knew it would not assist his case. The second scenario is that postulated by Counsel for the Mother, and that the second, i.e. the new, incident disclosed by the Father during cross-examination was completely fabricated, in order to manage the issue of the inconsistency between his evidence, and that of his wife. From a credibility perspective, neither scenario is helpful to the Father. As it turns out, the Court is prepared to give the Father the benefit of the doubt and accept his evidence that there were, in fact, two incidents involving [A], the first in which she tried to kiss him, and the second in which she did in fact kiss him. The evidence is still highly problematic for the Father’s case.
Discussion about Unacceptable Risk
The Independent Children's Lawyer’s analysis of the evidence in closing submissions was very helpful to the Court. He submitted that as a general proposition the evidence of the Mother, and [A]’s mother, should be preferred over the evidence of the Father. The Court agrees. There are many worrying inconsistencies in the Father’s evidence, and where his evidence is inconsistent with that of both the Mother, and [A]’s mother, the Court prefers their evidence over his. [A]’s mother had no interest in these proceedings. It is clear that she was a reluctant witness. She gave her evidence plainly, and convincingly. There was not the slightest hint of any motive in giving evidence about the facts in issue. Neither the evidence of the Mother, nor that of [A]’s mother, was seriously challenged in cross-examination.
There are some objective facts in this case. The Father accepts the child abuse material existed, and was viewed by the Mother on a computer that was either owned by him or in his possession. The Father could simply not explain why that material was found on the computer in question. Even he admitted in cross-examination that the most likely alternative scenarios, i.e. that the material was already there when he got the computer, or that the other users of the computer (his parents at one time, or the Mother) placed the material there, was in fact unlikely. His denial about him opening and using a folder called ‘Mr Padovan’s Stuff’ was unconvincing.
The evidence of the Mother, and [A]’s mother, is consistent (for the most part) with the statements given to police.
The Court forms the strong impression that the Father sought to draw fine distinctions in cross-examination about whether he owned a computer, or had access to the same. He was evasive in this regard. His failure to explain his obvious possession of a laptop computer, as evidenced by photographs which the Court accepts were taken as date-stamped in 2009, was plainly unconvincing. His selective disclosure of the [A] incidents to the family consultant, and to the Court via his affidavit, adds to the Court’s concern about the Father’s credibility.
The Court does not accept the Father’s evidence to the effect that he did not know that the child abuse material was on a computer that he either owned, or used. It is more likely than not that the Father used the computer in question to access child abuse material.
The Court accepts the Father’s evidence that there were two incidents involving [A]. The Court accepts the Mother’s evidence about the discussion that she had with the Father in which he admitted to completely inappropriate behaviour with [A]. The Father’s contention that he was an entirely innocent participant in both events is rejected by the Court.
The combination of the Father’s accessing child abuse material, and what the Independent Children's Lawyer described as the Father’s sexual interest in [A], raises serious issues of concern in the Court’s mind about unacceptable risk of harm to [X]. The Court believes that there is an unacceptable risk to [X] of being exposed to her father’s seemingly sexual interest in children. The fact that the Father has made no admissions about the existence of the risk, indeed denies that it exists, means that the Court’s task of managing the risk is made much more difficult.
To the extent that the Father’s case was predicated on his belief, and certainly that of his wife, that the Mother had fabricated these events in order to deny him a relationship with [X], this is plainly inconsistent with the evidence.
Options Available to the Court?
The Court having found that there is an unacceptable risk of abuse to [A] in having time with her father, the Court must then consider whether such risk can be managed in all the circumstances.
The Mother, and Independent Children's Lawyer, propose that there be no contact or communication between the Father and [X]. This would certainly manage the risk, but obviously would have the impact that the meaningful relationship which clearly exists between [X] and her father would be lost. Of course, in this regard s.60CC(2A) makes it clear that the priority must be on protecting [X] from the risk of harm.
The other alternative is some form of supervised contact order.
A long-term supervised contact order in an institutional setting is not possible, both for the policy reasons adverted to earlier in these reasons, as well as practical issue of the cost and availability of such a service. The difficulty with non-institutional supervision is that the Father’s case itself eliminates the most likely potential supervisors, i.e. members of the Father’s family, and the Father’s wife. No other evidence was led about potential supervisors and the Court can certainly understand the Mother’s reluctance to continuing to be involved in supervision.
The Court has considered the possibility of a recognition-contact type arrangement in which the Father would spend supervised time with [X], in an institutional setting such as a supervised contact centre, perhaps four times a year, at his expense. Ultimately, however, the Court has decided against this primarily on the basis of the family consultant’s evidence that this would cause disruption, confusion and upheaval for [X].
In the circumstances, the least of the worst outcomes in this unfortunate case is that there be no contact or communication between [X] and her father.
There seem to be no reasons, on the evidence, why the Father should not receive information about [X]’s health and progress at school, from time to time. There was no opposition to this from the Mother, or the Independent Children's Lawyer. It would require, however, an appropriate injunction to ensure that the Father does not otherwise approach the child, whether at school or at home.
It must follow from the Court’s findings above, and its conclusion, that an order for sole parental responsibility is in the best interests of [X]. Moreover, the totality of the evidence before the Court leads it to conclude that a reasonable excuse has been established for the purposes of s.70NAE of the Act. Accordingly the contravention applications are dismissed.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 11 July 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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