KAVANAGH & KAVANAGH

[2016] FamCA 162

FAMILY COURT OF AUSTRALIA

KAVANAGH & KAVANAGH [2016] FamCA 162

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to reopen – Whether it is necessary in the interests of justice and best interests of the children to reopen the case – Where, since trial, the father has been charged with criminal offences relating to possession of child sexual exploitation material – Leave granted.

FAMILY LAW – CHILDREN – Interim parenting orders – Best interests – Whether the father should be permitted to have supervised contact with the children – Where the father has not been in contact with the children in a year – Where the father’s signed bail undertaking prevents contact with any person under the age of 17 years whatsoever.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kavanagh

RESPONDENT: Ms Kavanagh

INDEPENDENT CHILDREN’S LAWYER: Justine Lilley

FILE NUMBER: BRC 8664 of 2011

DATE DELIVERED: 15 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 February 2016

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Mr Burrows

ABA Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lilley
Legal Aid Queensland

Orders

1. Leave is granted to the parties to inspect and photocopy, if required, the subpoena material received from the Queensland Police Service.

1. The trial in this matter is reopened.

1. The legal representatives for the mother and the father in person shall each be provided with copies of Exhibit 14.

IT IS NOTED that the Independent Children’s Lawyer has already made copies of Exhibit 14 and will today make those available to the legal representatives for the mother and to the father in person

1. Leave to granted to the mother to file and read an affidavit sworn by her on 11 February 2016.

1. The father shall provide to each of the other parties a copy of his latest Undertaking as to Bail, before he leaves Court today.

1. All previous parenting orders providing for the children, B born … 2006 and C born … 2008, to spend time with and communicate with the father are suspended until further order, and the children shall spend no time with and not communicate with the father at all other than by agreement between the mother, the father and the Independent Children’s Lawyer or by the father posting to the children, at the mother’s solicitor’s postal address, any cards and gifts that he wishes to send to the children on the occasions of their birthdays, Easter and Christmas time.

1. The Independent Children’s Lawyer has leave to cause any further subpoenas to issue out of the Court for the production of documents as she may from time to time consider appropriate.

1. The father shall provide written notice to the Independent Children’s Lawyer and the mother’s legal representatives, immediately upon the criminal proceedings currently pending against him being concluded.

1. The Independent Children’s Lawyer has leave to apply to relist the trial of this matter, for mention or further directions, as she considers appropriate.

1. The father shall provide to the Independent Children's Lawyer and the mother’s legal representatives a copy of any fresh Undertaking as to Bail given by him in relation to any of the pending criminal proceedings currently pending against him, within 48 hours of such fresh Undertaking as to Bail being given.

1. The Independent Children’s Lawyer’s costs of and incidental to these interim decisions are reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8664 of 2011

Mr Kavanagh

Applicant

And

Ms Kavanagh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In considering whether to re-open a matter after the trial is completed and the judgment remains reserved, it is necessary to be satisfied that it is in the interests of justice to do so, with regard also being had to the paramount consideration of the best interests of the child.  

2. All of the parties, that is, the Independent Children's Lawyer, the mother and the father, agree that it is in the interests of justice to reopen this case at this time. In addition, though, I am satisfied on the evidence that I have read in the matter, particularly the evidence that the father has, whilst judgment has been reserved, been charged with criminal offences relating to possession of child sexual exploitation material, that it is in the interests of justice for the matter to be reopened and I do so.

3. Parenting proceedings with respect to B, born in 2006, and C, born in 2008, were commenced sometime in 2011.  On 5 February 2013, when the matter was before what was still the Federal Magistrates Court, Federal Magistrate Baumann (as his Honour then was) made orders by consent between the two parents - there apparently being no Independent Children's Lawyer in the matter at that time - that provided for the children to live with their mother; for the mother to have sole parental responsibility for decisions regarding the children’s day to day and long term care, welfare and development; and for the father to spend time with and communicate with the children at all times as were agreed between the mother and the father, but in particular, for a period of not less than one hour each alternate week commencing on the weekend of Saturday, 2 February 2013, such time to be supervised by a mutually agreeable contact centre or alternatively supervised by the mother herself. 

4. The orders also provided for the children to have communication with their father by telephone at all reasonable times but not less than once per week.  In addition, the orders provided that the children’s paternal grandmother, Ms D Kavanagh, was at liberty to spend time with the said children during the time that those children were spending time with their father, her son, as provided for in the orders. 

5. At some point thereafter, the matter was transferred to this Court from the Federal Circuit Court.  On 13 May 2014, a further order was made before Acting Principal Registrar Spink.  The prelude to the orders reflect that each of the parties was legally represented on that occasion and that by then an Independent Children's Lawyer had been appointed in the case. 

6. Relevantly, paragraph 1 of that order amended the regime provided for in the February 2013 order by changing the amount of time that the children were to spend with the father from not less than one hour each alternate week, to not less than two hours each alternate week. 

7. The matter was listed before me for a trial that took place over four days from 15 December 2014. The evidence was completed in those four days and at the end of the trial I reserved my judgment.  The substantial and most significant factual issue for determination at trial was an allegation made by the mother that the father, who was self-represented at the trial but who I note is a qualified solicitor and legal practitioner, had indecently dealt with his son B, by somehow touching B’s genitals in a sexually inappropriate way. It was alleged to have happened during the course of the parents’ relationship.

8. Due to what I describe as the responsibility to hear and determine so many other matters throughout 2015, as at the end of 2015 my judgment in the matter remained reserved. On 4 December 2015, the Independent Children's Lawyer filed an Application in a Case.  In that application she sought orders that included the staying of my reserved judgment; the granting of leave to issue  subpoena out of the Court for the production of documents as she considered necessary; and following the return of any such subpoenas that the matter be listed for further mention or directions with respect to the issue of any application to be brought by a party to the proceedings for leave to reopen the case and to adduce more evidence and for any further or other orders or directions as considered necessary.

9. The affidavit of the Independent Children's Lawyer that was filed supporting that Application in a Case deposed to the fact that the application was brought on the basis that the ICL had been provided with information that the father had, in the period of time leading up to that application, been charged with a number of criminal offences involving the production and distribution of child sexual exploitation material.  She deposed to having been told that the father was incarcerated at the time.  As I understand the evidence that was put before the Court by the Independent Children's Lawyer, she sought to cause a subpoena to be issued to the Queensland Police Service so that documents in respect of these charges that she had learned of could be produced to the Court. 

10. The matter was given a listing in my judicial duty list today, Monday 15 February 2016.  Between the filing of that Application in a Case and today, the Independent Children's Lawyer had a number of appearances before Registrar Brooks, the Magellan Registrar of the Court.  Those appearances resulted in Ms Lilley, the Independent Children's Lawyer, being given leave to cause a subpoena to be issued to the Queensland Police Service, which she did.  That resulted in documents being produced to the Court pursuant to subpoena by the Queensland Police Service. 

11. Ms Lilley caused a further subpoena to be issued to the Queensland Police Service in an amended form seeking even more documents and today at the commencement of the hearing some further documents were produced by the Queensland Police Service pursuant to that subpoena and leave granted to the parties to inspect and take copies. That leave was given despite objection by the Queensland Police Service to Mr Kavanagh, who continues to act for himself, being given any leave to take photocopies of the documents.  

12. Also in the meantime, on 29 January 2016, the father filed an Application in a Case that he caused to have returned today as well.  In that Application in a Case he seeks to have the existing order of Federal Circuit Court Judge Baumann of 5 February 2013 as amended by the subsequent order that I have referred to, vacated.  He agreed that the delivery of my judgment and the making of final orders in the matter should be stayed and he sought fresh interim orders in respect of the time that he is to spend with his two children, most particularly seeking to have such time supervised by a particular named contact centre and for that contact to include time supervised by people from the contact centre taking place at the home of the paternal grandmother, his mother, where, on his evidence, he is currently living. 

13. In that affidavit he says at paragraph 12:

    At the moment there are criminal charges against me, which is why I agree with the Independent Children's Lawyer that final judgment and orders in this matter be delayed until these charges are dealt with.  These charges do not affect my children’s right to have a meaningful relationship with me, and should not affect my having supervised time with them until final judgment and orders are made in this matter.

14. The Independent Children's Lawyer raised in her submission concerns about the lack of full and frank disclosure by the father in that affidavit in respect of the particulars of the charges that he faces.  In essence, she submitted that the father, by failing to fully and frankly disclose at least the particulars of the charges laid against him, was misleading the Court.  The father himself in response to that submission asserted that he effectively chose not to particularise the criminal charges against him or to say anything more about them knowing and believing that documents from the Queensland Police Service that had been subpoenaed would be before the court therefore the particulars of the charges against him would be known by the Court.

15. At the commencement of the proceedings today, the Independent Children's Lawyer agreed with the proposition put to her by me that her application was effectively an application to reopen the proceedings.  The mother, through her solicitor, informed the Court that she agreed that was the right course and did not oppose it.  The father, representing himself, as I have said, also indicated that was the appropriate course. Accordingly, I reopened the case. 

16. The Independent Children's Lawyer then handed up to the Court a minute of the orders that she submitted to the Court should be made in the best interests of the children, C and B.

17. In support, she tendered into evidence a bundle of documents that I admitted and marked as Exhibit “14” in the proceedings, which is a bundle of documents from the Queensland Police Service file that were produced under the subpoena caused to be issued by the Independent Children's Lawyer out of the Court.

18. The most significant order the ICL has asked the Court to make in the minute that she handed up to the Court, which I accepted should be treated as an oral application effectively, amending her Application in a Case, is for an order that all previous orders for time and communication for the children, C and B, with their father, be suspended and that the children spend no time with him and have no communication with him, on an interim basis, save for the fact that he would be at liberty to post items, cards and gifts addressed to the children, to the mother for their birthdays, Easter and Christmas.

19. She also seeks leave to cause any further subpoenas to issue that she considers necessary. She seeks an order that effectively requires the father to provide written notice to her and the mother’s legal representatives when the pending criminal proceedings against him are concluded so that she would know when to apply to have the matter relisted for further directions.  She seeks an order that he provide to her and to the mother’s legal representatives any changed Undertaking as to Bail given by him in relation to the pending criminal proceedings within 48 hours of any such change.

20. The current Undertaking as to Bail that applies is part of Exhibit 14.  It is an Undertaking as to Bail that the father signed on 24 November 2015 at the Brisbane Magistrates Court.  It seems that he was in custody but was granted bail on the conditions that are contained in that Undertaking as to Bail on that date. 

21. Those conditions include a requirement that he appear and surrender himself into custody again on 2 December 2015 at the Brisbane Magistrates Court.  They include that he obey the directions of the Court in relation to any further appearance.  They include that he report personally to the officer in charge at the Brisbane City Police Station between the hours of 7 am and 6 pm each Monday and Friday of each week commencing on Friday 27 November 2015.  They include that he is to reside at a particular address to which written approval is given by the officer in charge of police prosecutions or the DPP.  More significantly, they include that he is not to access the internet except for direct work purposes in the discharge of his professional duties as a lawyer or for his own personal financial purposes.  They also include that he is to have no contact whatsoever, either directly or indirectly, with any child under the age of 17 years.  They also include that he is not to have any contact either directly or indirectly with two other people whose names are redacted, but who the father assures me are not either of his two children. 

22. The Undertaking as to Bail refers to two charges laid against the father pursuant to s 228C(1) and s 228B(1) of the Queensland Criminal Code alleging that he made child exploitation material between 1 June 2015 and 17 November 2015 in Brisbane and that he distributed child exploitation material between 8 November 2014 and 8 November 2015. 

23. Mr Kavanagh just informed the Court that he faces a total of 14 charges, not just the two that were in the initial Undertaking as to Bail that I referred to that is part of Exhibit 14.  Indeed, he was back before the Court on 2 December 2015 and again on a date that he just referred to in late January, occasions that I note precede the swearing of his affidavit on 28 January 2016 that was filed on 29 January 2016 in which, as I have already pointed out, he failed to give any particulars of the number of charges that he was facing or any of the detail of the allegations made by the police against him in respect of each of those charges.

24. However, from the documents that are before the Court, due to the efforts of the Independent Children's Lawyer, something is known of those charges and of the detail of the allegations levelled against Mr Kavanagh.  Certainly I am looking at a document here that refers to eight charges laid against him, that involve making material available, namely computer generated images and computer generated video files, to other people using a carriage service and that the material was child pornography.

25. It seems from my reading of this document that is part of Exhibit 14, which is a Queensland Police Service Charge List in respect of his appearance on 22 January 2016, that the eight charges that were presented against him on that day are all charges in respect of similar offences, that is, making material available, namely computer generated images or video files, that contained child pornography and sending them around via a carriage service (email or the internet). The eighth charge is a different one - that he committed an offence against s 474.19 of the Criminal Code (Cth). I have no idea what that is about, save that it says that on three or more separate occasions in the commission of each such offence, two or more people were involved.

26. The documents produced by the Queensland Police Service that are part of Exhibit 14 include particulars provided by the police to the Court in respect of some of these charges.  The ones that I have just referred to have particulars that are set out in the document. 

27. It seems that the police allege at least that on a date in November 2015 detectives from Taskforce Argos, which is known to be a child sexual exploitation investigation taskforce contained within the Queensland Police Service, went to an address at which Mr Kavanagh was residing to execute a search warrant. Police assert that they located Mr Kavanagh at that dwelling as the sole occupant.  They assert that as a result of a search of his residence he was arrested for matters relation to possession of child exploitation material, obstructing police and using a carriage service to access child pornographic material.  They say that during a subsequent examination of computer equipment seized from Mr Kavanagh during the search warrant, detectives located several online communication programs, one of such programs was an application called Frost which is an external application for something called Freenet.

28. The police assert that Freenet is “peer to peer based anonymisation software” freely available and used to access what is commonly referred to as the “dark net” or “dark web”.  They say that they were able to recover the Frost ID for the user of this software, it’s a unique ID and identifies a user when posting public messages on Freenet through Frost to various boards or private messages.  

29. The police assert that using the Frost ID detectives were able to locate messages authored by Mr Kavanagh to other users of the Freenet community and that 107 messages were recovered. They then set out, under separate headings of charges, particulars relating to each charge of the eight charges laid against Mr Kavanagh.  Without going through all the detail of each of those charges, suffice to say that some of them involve the alleged posting of messages and links to files that the police assert depict female children of under 15 years of age, of under 12 years of age, of about 7 years of age, of about 10 years of age, either posing in sexually explicit poses or being subjected to what could only be described as confronting and horrific sexual assault, including rape by adult males. 

1. Police allege that written communication between Mr Kavanagh and other people with whom he was communicating about these images and links would suggest that these links and images were being provided for the personal gratification of these other persons.  The police also allege in material contained within these documents that when they attended at the premises that Mr Kavanagh sought to obstruct their search and investigation on a number of occasions repeatedly trying to turn off the power to his computer, which police assert would have resulted in the activation of an encryption device or software somehow connected to the computer making it more difficult or impossible for the police to access. Police allege Mr Kavanagh had to be restrained when doing so, thus forming the basis of a charge of obstruction as against him.

2. I also gave the mother’s legal representative leave to file and rely upon an affidavit sworn by her on 11 February 2016 in which she sets out material that she relies upon in support of the Independent Children's Lawyer application to vary the existing order so as to suspend the father’s time and contact with his children, pending the further hearing and determination of matters that might arise having regard to the criminal proceedings currently pending against the father. 

3. In that affidavit the mother says, by way of update to the Court, that certain things have occurred since the hearing concluded in December 2014.  They include that the father has not spent any physical time at all with the children since January 2015.  That is a matter that is actually conceded by the father himself.  She says that his last attempt to communicate with the children by telephone and/or Skype was also in February 2015 and that, therefore, it has been one year now since the children have seen or spoken to the father.

4. She says that through correspondence, she and the Independent Children's Lawyer agreed last year that if the father was to spend supervised time with the children, that it was to take place at Relationships Australia Contact Centre at E Town.  She attended that centre for an interview and says that the father refused himself to do so.  She refers to his evidence given in his affidavit filed on 29 January 2016 that its location is inconvenient and that its strict rules do not provide a friendly atmosphere for supervised contact as being the apparent reasons why he was unwilling to utilise that centre.  The mother says though, that particular centre is convenient to herself and it seems that she asserts it could be readily accessed by the father even though he lives at Suburb F where he is living with his mother.

5. The mother says that she learned late last year that the father had been arrested and charged with a number of serious criminal offences.   She says that members of Taskforce Argos contacted her and told her that they wished to interview her regarding the father and her two children, and in particular in order to ascertain whether any of the images in the possession of the father of a child exploitation or pornographic nature were of their children.  The mother says in her affidavit, significantly in my view, “I am informed by Taskforce Argos, and verily believe, there (sic) investigation into that particular issue continues.” 

6. The mother also refers in her affidavit to the fact that the only communication she has personally received from the father since February 2015 is that she located birthday presents addressed to her daughter at the backdoor of her property with notes on them as having come from the father.  This happened again at Christmas time. She said it concerned her as to how the father had come through her back yard for the purpose of leaving gifts for the children at her backdoor on more than one occasion.  Of course, the father has not had the opportunity to respond to those concerns, that affidavit only having been sworn last week and filed today. 

7. In his affidavit that the father filed on 29 January 2016, he says little more about the fact that he has had no time with the children since the beginning of last year other than that he and the mother have had a dispute about which supervised contact centre they should use until the judgment is handed down in this matter.  He exhibits quite a few emails, correspondence going between the two of them that certainly reflects they were in disagreement about (a) whether the mother should herself supervise the time and the father refusing to take advantage of that particular proposition anymore; and (b) whether the children should see him at a particular contact centre or another. 

8. In essence, Mr Kavanagh now seeks to have the order varied so that contact takes place through the supervision of an organisation that he refers to as the Family Contact Service and he exhibits some material that goes to that particular service.  I understand that he seeks to use that service because apparently supervision may be able to take place at his residence where he is living with his mother.  Information given from the bar table this morning by Ms Lilley in respect of that service suggests that the use by Mr Kavanagh of that service might not be as unproblematic or as easily accessed as Mr Kavanagh might himself consider if the Court was to take the view that it was an appropriate service to supervise time with his children. 

9. Principally, Mr Kavanagh relies upon a presumption of innocence and says that until the charges that have now been laid against him, multiple in number as they are, are heard and determined, there ought be no reason why the existing orders from 2013 providing for the children to spend time with him, albeit in a supervised setting, ought not continue.  In contrast, the Independent Children's Lawyer says that such orders should be immediately suspended and that the children should spend no time with the father and not communicate with him until this matter is otherwise finalised, presumably after the determination and finalisation of the criminal charges that Mr Kavanagh now faces.  That is a position supported in its totality by the mother.

10. I have to make a decision based on the paramountcy of the best interests of the children.  A number of things come to the fore of my mind in determining this matter today.  I shall simply refer to them as they fall into my mind as opposed to listing them in any particular order of importance. 

11. The contested proceedings were heard over four days.  I heard evidence about the allegations that Mr Kavanagh had sexually abused his son B and that factual matter remained undetermined and for me to determine as part of my reserved decision in determining whether or not it was in the children’s best interests to spend any time, and if so, what sort of time, with their father.  All of that evidence was troubling and concerning. 

12. In addition, now more than a year later, I am told by the parties that for over a year, he has not seen the children or communicated with them. Until Ms Lilley, the Independent Children's Lawyer, brought the Application in a Case that she did in December, after the father had been charged with a number of offences, but prior to having been charged with all of them, he had taken no steps to seek to put back in place a situation where he was having time and communication with his children.  He tells the Court that he was hoping and expecting that a decision from the Court might be handed down, but nevertheless, as a matter of undisputed fact these children have not seen or communicated with him now for a year. 

13. In circumstances where, as I have said, a multiple number of serious child exploitation charges have been levelled against Mr Kavanagh, he now seeks to reactivate that time and he seeks to do it in a way that is opposed by the mother and opposed by the Independent Children’s Lawyer. He presents as a serious proposition to the Court that the children spend time with him at his residence where he lives with his mother, provided that that it is supervised.

14. I am not satisfied that now reactivating a situation where the children start spending time again with the father and communicating with him on a regular basis where he has not had such time or communication with them for a year, is in their best interests. Particularly against the backdrop of very recent, serious child exploitation charges levelled against him in circumstances where the evidence before me does not satisfy me that the circumstances of the offences alleged against Mr Kavanagh did not involve the two children of the parties, and in circumstances where on his own bail undertaking Mr Kavanagh agreed not to have any contact with children under the age of 17 whatsoever. 

15. In the circumstances, I will not accede to Mr Kavanagh’s application and I will actually make the orders that are sought by the Independent Children's Lawyer this morning and supported by the mother.  Accordingly, I make these further orders in addition to the ones already made this morning.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 February 2016.

Associate: 

Date:  18 March 2016