Marquez & Cisternino
[2023] FedCFamC1F 875
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCEMarquez & Cisternino [2023] FedCFamC1F 875
File number(s): BRC 8950 of 2021 Judgment of: CAREW J Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – CHILDREN – Where the father has convictions relating to child exploitation material – Where the father concedes any time spent with the child should be supervised, however, does not concede that he poses an unacceptable risk of harm to the child – Where the material accessed by the father was described by the sentencing judge in 2016 as “[…]” – Where the father was sentenced to a further term of imprisonment for further offences in 2021 – Where the father continues to minimise his offending behaviour – Where the father also has a history of alcohol and prescription drug abuse – Finding that the father poses an unacceptable risk of harm to the child – Where an order for long-term supervision is not in the child’s best interests – ICL to provide reasons for judgment to the Department of Child Safety, Seniors and Disability Services to ensure welfare of relative children not directly related to these proceedings Legislation: Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) s 50(1)
Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA, 65DAC
Penalties and Sentences Act 1992 (Qld) s 93(1)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley [2022] FedCF1A 101
Isles and Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69 (“M & M”).
N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs: 76 Date of hearing: 14, 15, 17, 18 August 2023 Place: Brisbane Counsel for the Applicant: Ms Dart Solicitor for the Applicant: Hooper & Mill Family Lawyers Counsel for the Respondent: Mr Hughes Solicitor for the Respondent: Jurgensen Horne Lawyers Counsel for the Independent Children’s Lawyer Ms Murphy Solicitor for the Independent Children’s Lawyer Legal Aid Queensland ORDER
BRC 8950 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARQUEZ
ApplicantAND: MR CISTERNINO
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.All previous Orders are discharged.
2.The mother shall have sole parental responsibility for the child, X born in 2017 (“the child”).
3.In the exercise of the mother’s parental responsibility, the mother shall provide the father with updates in relation to the child’s health and education as follows:
(a)The mother shall provide an update by 31 March, 30 June, 30 September and 31 December each year to an email address nominated by the father;
(b)The update shall include an update on the child’s education, including redacted school reports with redactions limited to anything that may identify the school the child attends or where the child resides;
(c)The update shall include any update with respect to any major long term medical issue impacting the child, if any, including any medical reports in relation to such issue with redactions to such reports limited to anything that may identify the school the child attends, the child’s medical practitioner, or where the child resides.
4.The child shall live with the mother.
5.The father shall spend no time with the child nor communicate with him other than as provided by this Order.
6.The father shall be at liberty to send gifts and/or cards to the child on the child’s birthday, Christmas, and Easter. For this purpose, the mother shall:
(a)Within 7 days of the date of this Order, provide to the father, in writing, details of a PO Box the father can send the gifts and/or cards to;
(b)check the PO Box at times proximate to the nominated occasions and provide the gifts and/or cards to the child upon receipt; and
(c)be at liberty to peruse the father’s written communication to the child prior to providing it to the child.
7.Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), the mother shall be at liberty to take the child X born in 2017 from the Commonwealth of Australia to a place outside of Australia.
8.Pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), the child X born in 2017 is to be issued with an Australian passport (including any renewals for such passport) and the need for the father’s consent to the issuing/renewal of the passport is dispensed with.
9.The father is restrained, and an injunction hereby issues restraining the father from:
(a)Contacting or approaching, or attempting to contact or approach the child, other than in accordance with this Order;
(b)Contacting or approaching, or attempting to contact or approach the mother, other than in accordance with this Order;
(c)Attending upon the school the child currently attends or any school the child may attend from time to time; and
(d)Attending upon the mother’s current residence or any residence the mother may reside at from time to time.
10.The independent children’s lawyer is requested to forthwith provide a copy of the reasons for judgment dated 20 October 2023 to the Department of Child Safety, Seniors and Disability Services for their information, with their notice being directed to paragraphs [36] – [54], [57] – [61], [72] – [76] in particular.
11.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marquez & Cisternino has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
These parenting proceedings concern a little boy named X who is just six years old. X lives with his mother, Ms Marquez, and spends time with his father, Mr Cisternino, at a contact centre under supervision. The need for supervision arises because of the father’s history of possession of child exploitation material, for which he has been imprisoned, and his history of drug and alcohol abuse.
For the reasons set out below, I have determined that it is not in the child’s best interests to continue to spend time with his father, nor to receive communication from his father, other than in the form of gifts and cards on special occasions.
ISSUES
At the commencement of the trial the parties agreed that the significant issues for my determination were to be as follows:
(1)Does the father pose an unacceptable risk of harm to the child including by reason of:
(a)possible sexual harm and/or exposure to inappropriate sexual material; and/or
(b)exposure to the father’s alcohol and substance use?
(2)If the father does pose an unacceptable risk of harm can that risk be ameliorated by
supervision? If so:
(a)Is it in the best interests of the child for a long-term supervision order to be made? If so:
(i)should such time be supervised by a professional supervisor/contact service or by the paternal grandmother or paternal aunt; and
(ii)what age should the child be when the supervised time ceases and what, if any, time or contact should occur after the supervised time ceases?
(3)What order, if any, should be made for the child to communicate with the father?
(4)Should the mother have sole parental responsibility?
(5)What, if any, information should the father be provided with regarding the child’s health, education and development and from what source?
(6)Should the mother be able to obtain a passport for the child without needing the father to sign the application form?
(7)Should the mother be required to give notice to the father of her intention to travel overseas with the child and whether she is required to provide details of such travel?
By the end of the trial, it was common ground that if any order for the father to spend time with the child is made, it should be supervised. In making this concession, the father did not however concede that he poses an unacceptable risk of harm to the child. Other concessions made by the father and the mother make it unnecessary to determine: issue (4) because the father does not oppose the mother having sole parental responsibility; issue (5) because the mother agrees to provide regular reports about the child’s health and education to the father; issue (6) because the father agrees that the mother should be able to obtain a passport for the child without needing the father to sign the application form; and issue (7) because the father agrees that the mother should not be required to give the father notice prior to any overseas travel with the child. Further, the father does not oppose the personal injunctions restraining him e.g., from contacting or approaching the mother or the child other than as may be permitted by the order, and from attending the child’s school or the mother’s residence.
PROPOSALS OF EACH PARTY
The mother now adopts the form of order recommended by the independent children’s lawyer (“ICL”) save for the addition of personal injunctions as set out in paragraph 5 of her proposed order. Under the ICL’s proposal, the father would not spend any time with the child and his communication would be limited to cards and/or gifts on the child’s birthday, at Easter, and at Christmas.
The father proposes that he spend daytime only with the child, supervised by either his mother, Ms B, or his sister, Ms D, and that when the child turns ten years of age, the child spend time with the father as agreed between the parties in writing. The precise terms of the order sought by the father, including in the alterative, are set out in exhibit 18.
The ICL recommends an order for no time or communication between the father and the child other than by sending a gift and card on the child’s birthday, at Easter and at Christmas. The precise terms of the order recommended by the ICL are set out in exhibit 17.
BACKGROUND
The mother and father commenced a relationship in early 2016 and separated two years later, in September 2018.
The applicant mother, Ms Marquez, was born in 1995 and is 27 years of age. The mother works as a consultant at E Company and as an allied health worker at F Company.
The mother lives with her partner, Mr G in a four-bedroom home in Brisbane. Their relationship commenced in mid-2019, although they commenced living together two months earlier, after the mother expressed a need to find a place to live closer to work. Mr G, who at the time was a colleague, had two spare bedrooms at the house he was renting, which he offered to the mother. Mr G is currently working as an operator at H Company. The mother and Mr G have one child together, J, who is currently one year old.
The respondent father, Mr Cisternino, was born in 1986 and is 37 years of age. He is currently working from home as a sales consultant whilst studying for a qualification through TAFE. The father lives alone in a small two-bedroom residence in Brisbane.
There is one child of the relationship, X born in 2017. X commenced formal schooling this year.
The father has a criminal history including convictions relating to child exploitation material. The father served part of a two-year sentence in prison in 2016 before being released on probation. In 2021, the father was again convicted of charges relating to child exploitation material. The father was sentenced to a period of imprisonment and released on parole. The father has also been convicted on multiple charges of failing to meet his probation reporting requirements.
After separation, from September 2018 to October 2018, the parents agreed to an informal equal time arrangement with the child spending six nights per fortnight with the father. The mother contends that she felt pressured into agreeing to equal time and did not think it was in the child’s best interests. I accept her evidence.
In October 2018, the mother engaged solicitors and instructed them to write to the father to change the care arrangements. Consequently, from November 2018, the child lived primarily with the mother and spent time with the father for three nights per fortnight.
From March 2019, the parents returned to an equal shared care arrangement, but with changeovers occurring every three days. This arrangement continued until approximately July 2019, when the father’s time with the child was again reduced. The father then spent mainly weekend time with the child including overnights until 2020 when the father was arrested and charged with further offences relating to child exploitation material.
Proceedings were commenced by the mother in 2021, after the mother became aware the father was to be released on parole.
On 2 December 2021, an interim order was made for the mother to have sole parental responsibility for the child and for the child to have no time or communication with the father.
On 7 June 2022, the matter was transferred to this Court and on 7 September 2022, a further interim order was made by consent for the father to commence spending supervised time with the child for a period of two hours once a month.
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”), s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M & M”).
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93–637.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILD INCLUDING BY REASON OF:
· POSSIBLE SEXUAL HARM AND/OR EXPOSURE TO INAPPROPRIATE SEXUAL MATERIAL; AND/OR
· EXPOSURE TO THE FATHER’S ALCOHOL AND SUBSTANCE USE?
Although the father concedes that any time he spends with the child should be supervised, he does not concede that he in fact poses an unacceptable risk of harm to the child. Accordingly, it seems to me to be necessary to make findings as to the nature and magnitude of the risk posed by the father which will in turn inform the nature and duration of the supervision, if time is to occur at all.
In 2016, the father pleaded guilty and was convicted of offences related to child exploitation material on multiple separate occasions between the period mid-2011 and mid-2014, during which time image files and video files were accessed, and, further, that in mid‑2014 he had possession of child exploitation material, being a hard drive containing image files and video files.
In relation to count one, the father was sentenced to imprisonment to be released after serving a period on a recognisance of $2,000 to be of good behaviour for four years. In relation to count two, the father was sentenced to imprisonment and thereafter admitted to probation. The terms of imprisonment were to be served concurrently.
It is noteworthy that the probation order was made on condition that the father agreed to the terms of probation as set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) including regular reporting requirements (to an authorised corrective services officer), and to take part in counselling, and satisfactorily attending other programs as directed, and to submit to such medical, psychiatric and/or psychological assessment and treatment as may be reasonably required by an authorised corrective services officer. When asked by the sentencing judge, the father agreed to abide by the terms of probation, but as discussed in more detail later in these reasons, the father did not abide by the terms of his probation.
The sentencing judge observed that the father’s interest in accessing and downloading child exploitation material “has to be recognised as only serving to support the making and distribution of it” and that “[a]s well, offending of this kind is difficult to detect”. Those observations are obviously correct.
Although the mother attended the father’s sentencing hearing, I accept the mother’s evidence that the father maintained (falsely) to the mother, that he was in fact innocent of the charges and that the devices on which the child exploitation material was found were not his property, and that he had not accessed the material.
Upon the father’s release on probation, the mother and father commenced to live together at the paternal grandmother’s home. The father repeatedly breached the terms of his probation by failing to report as required and by failing to obtain a mental health care plan and to undertake counselling. The father was initially included on the child offenders register for five years because of his convictions and consequently he was required to meet additional reporting requirements, including notification of any occasion that he had contact with a child other than incidental and brief contact.
In 2017, the father was convicted of failing to comply with his reporting obligations under the CPOR during 2016 and was fined $1,000.
In 2018, the father was convicted of failing to comply with his reporting obligations under the CPOR during 2017 and was fined $1,900.
In 2019, the father was convicted of a breach of his recognisance and the period of good behaviour was extended by 12 months to mid-2021. The sentencing judge addressed the father directly as follows:
But what I will say is this: you need to take your reporting requirements very, very seriously. They are not a guide; they are not optional; you need to comply with them.
In 2021, the father pleaded guilty and was convicted of offences relating to child exploitation material in early 2020. The child was in the father’s care overnight on two dates he was charged with offences. Further, the father pleaded guilty and was convicted of further charges of failing to comply with reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“CPOR”), including failing to report the use of email addresses and of using social media applications, a charge relating to the refusal to provide a password for his computer to police, and a breach of his recognisance. The “litany of matters” caused the sentencing judge to observe that the father had “little regard for the orders of the Court”. The father was sentenced to a term of imprisonment to be released after serving a period on a recognisance of $500 with good behaviour for five years. The father was further sentenced to a term of imprisonment to be served concurrently with time spent in pre-sentence custody to be deemed as time already served and to be eligible for parole after a period of time served. For the remaining offences the father was not further punished.
As a registered sex offender, the father will now remain subject to reporting obligations under the CPOR for life.
In the current proceedings, the father admits that he is guilty of the offences as charged but contends that he was completely honest with the mother at the time. I do not believe the father. In part, this is because the father also falsely maintained his innocence at the time to his mother and later to another partner of his, Ms K, with whom he was in a relationship for a period in 2019. Ms K has two young children. The father gave a rather unconvincing account of the provenance of a letter of support annexed to his affidavit of evidence in chief (although not relied upon by him), purportedly written and signed by Ms K on 24 July 2023. Ms K was not a witness in the father’s case. Contrary to the purported statement by Ms K in the letter that - “I was well aware of [the father’s] previous charges before moving in together however I did not believe he was any risk to my children”- police records indicate that the father told Ms K that he was not responsible for the offences and that the images were on a computer that belonged to someone else.
Despite now admitting his criminal history, the father continues to minimise his offending behaviour. For example, at [53] of the father’s evidence in chief he states:
... The downloading of Child Exploitation Material was not a common behaviour and was isolated to 2 particular weekends in a short space of time when I needed help. The amount of Child Exploitation material downloaded was minimal and I immediately felt ashamed of my behaviour. The motivation for downloading the Child Exploitation material was to find particular imagery that mirrored my traumatic experiences as a child. Seeing this content provided relief from my rumination and depressive thoughts.
In more recent times, the father has attributed his criminal offending to trauma experienced by him as a child. The father was sexually abused by a neighbour when he was approximately ten years old. The abuse occurred over a one-year period. I accept this history of abuse because it was corroborated by the father’s sister who was herself a victim of abuse by the same perpetrator. The father asserts that he sought out child exploitation material to process the trauma he felt because of his childhood abuse and that the material he accessed “mirrored” his own traumatic experiences. I reject the father’s contention that he only downloaded material that mirrored his own traumatic experiences. The material downloaded and repeatedly accessed by him was described by the sentencing judge in 2016 as “depraved” and some of the material the subject of the 2021 convictions was identified as falling within the most serious form of abuse. The father’s description of his own childhood abuse, while certainly serious, did not involve penetration and occurred when he was ten years of age.
Until the father fully acknowledges and accepts the seriousness of his extensive offending history there seems little prospect of therapy achieving positive outcomes.
In assessing the magnitude of the risk posed by the father, I place significant weight on the father’s failure to address in therapy not only his own offending behaviour but also his own childhood abuse. The father gave the distinct impression that he just did not see his offending behaviour as, to use the vernacular, “that big a deal”. The father has repeatedly failed to engage in appropriate therapy. The father has also repeatedly minimised his offending behaviour to the therapists he has consulted. Currently, I simply cannot see a circumstance arising in the foreseeable future, if ever, of the father not posing an unacceptable risk of harm to the child.
The father also has a history of alcohol and prescription drug abuse. Again, I was left with the very clear impression that the father sought to minimise the extent of his drug and alcohol abuse. Despite there being ample evidence of the father admitting his misuse of alcohol and medications to various practitioners, the father maintained during the trial that a number of the records containing his admissions were incorrect. I reject the father’s evidence. I find that his admissions of alcohol and drug abuse are more likely to be correct.
It is troubling to say the least that the father was in the habit of misusing medications which Dr L, psychiatrist, said can cause a state of intoxication which can also induce a sense of disinhibition and lack of impulse control. The effects of these medications can be compounded by alcohol consumption.
The father continues to drink alcohol and to take this medication despite both being identified as risk factors in his “relapse prevention plan”. While he may not currently be misusing either, the father’s denial of much of the previously admitted history of misuse, and his failure to satisfactorily address his previously admitted history of misuse, raises another very real risk of harm to the child, which I assess as unacceptable.
IS IT IN THE BEST INTERESTS OF THE CHILD FOR A LONG-TERM SUPERVISION ORDER TO BE MADE? IF SO:
· SHOULD SUCH TIME BE SUPERVISED BY A PROFESSIONAL SUPERVISOR/CONTACT SERVICE OR BY THE PATERNAL GRANDMOTHER OR PATERNAL AUNT; AND
· WHAT AGE SHOULD THE CHILD BE WHEN THE SUPERVISED TIME CEASES AND WHAT, IF ANY, TIME OR CONTACT SHOULD OCCUR AFTER THE SUPERVISED TIME CEASES?
The risk of exposure to offending behaviour and intoxication (which can likely be ameliorated by supervision) is not the only impact on the child that I must consider. The impact of long‑term supervision itself must be considered, as is the child’s likely reaction of becoming aware, at some point, of his father’s offending behaviour, and perhaps wondering why he has continued to spend time with his father in those circumstances.
Long-term supervision is problematic even without the complexities of this case. As a child matures, they are less likely to enjoy the confines of a supervised setting. More questions are likely to be asked by the child and while I am confident the mother would do her best to answer them appropriately, it is a fraught situation which may also detrimentally impact the child and mother relationship. Additionally, it is likely that at some point the child will become dissatisfied with the arrangement and may even come to resent his parents if long-term supervised time otherwise interferes with his life and friends and commitments. Up until recently, the supervised time at the contact centre involved not only the supervisor but also security guards. The security guard presence has been scaled back. Spending time with a parent in such circumstances is certainly not a ‘normal’ environment.
While it may well be the case that having the father’s mother or sister undertake the supervision would allay some of the child’s likely future dissatisfaction, i.e., the time spent with the father would be in a more ‘normal’ setting, I am unable to find either of them suitable supervisors.
The father’s mother refuses to see the father as a risk. While I appreciate that it may be difficult for any mother to publicly acknowledge such a matter, I gained the impression that even if the father’s mother tried to be vigilant, it is likely she could be manipulated by the father. I come to this conclusion, in part, because of her seemingly lax attitude to the father’s presence in her home while she had one of her daughters’ young daughters living with her. M is the daughter of the father’s sister, N. The father’s mother was content to leave her granddaughter in the care of the father because she was confident that her granddaughter would tell her if anything untoward happened. I found her confidence misplaced and naive particularly when her own children did not tell her until years later that they had been sexually abused by a neighbour.
The father’s other sister, O, has been content to leave her daughters, P aged 13, Q aged eight and R aged six, with the father, albeit it, perhaps on her understanding that her sister N or her mother was present. However, the father’s evidence in chief included the following:
108. [O] has entrusted me with the care of her daughter [P] over school holidays.
When challenged about this evidence, the father contended that his sister N was present. I am not at all confident that was the case. N was not a witness in the father’s case. P and M stayed with the father during school holidays in 2023 including overnight. Even if N were present, she would not have been able to supervise when she was asleep, and only one of his nieces apparently shared a room with N, while the other one slept in the lounge room. I also note that N has a long history of drug addiction and has served at least three periods of incarceration, the most recent of which was only last year. It seems unlikely that N would be an appropriate person to be entrusted to provide supervision even during the day.
Like her mother, O does not see the father as a risk. During the trial, the father gave evidence of his close relationship with his nieces such that M and P discussed intimate matters with him e.g., the changes in their bodies because of puberty. O seemed genuinely shocked when this was brought to her attention. One can only hope that this changes her view in future about leaving her children in the father’s care. It is a matter about which I will request the ICL to follow up with the Department of Child Safety, Seniors and Disability Services (“the Department”).
I must also consider the impact on the mother of continued exposure of the child to the father even in a supervised setting. Understandably, the mother no longer trusts the father. The father lied to her about his offending history. The father’s access to child exploitation material creates a market for such material which has real life victims. It still haunts the mother that she naively left the child unsupervised with the father in the past. Clearly, the father can be very persuasive and tell a plausible story. I must say, given the father’s history I was somewhat taken aback to hear that he remains present when the child is going to the toilet and that the father is permitted to change the child’s clothes at the contact centre. The father’s phone is not confiscated during his supervised sessions with the child.
All these matters would no doubt affect the mother’s capacity to encourage the child to spend time with the father, even in a supervised environment. In my view, long-term supervision has a real possibility of placing the child in a situation of conflict with his mother and between his mother and father.
While I acknowledge that the child currently appears to enjoy his time with the father, I conclude that long-term supervision is not in the child’s best interests.
As to the father’s suggestion that supervised time cease upon the child attaining ten years of age, and occur as agreed, I simply observe that I cannot envisage a time when the child should spend unsupervised time with the father even if the mother agreed to that course. If the mother did not agree and the child’s time with the father ceased at age ten, I consider that likely to be even more detrimental to the child than ceasing his time now. The child is currently very young and has, to date, had very little to do with his father. In Ms S (the family report writer’s) opinion, if the child were to cease spending time with the father now, she envisaged that any detrimental impact could be well managed and suggested there would need to be an age-appropriate explanation provided to him and perhaps the re-instigation of play therapy at some future time should he have questions about his father. I am confident that the mother would take all necessary steps to meet the child’s needs in this respect.
WHAT ORDERS, IF ANY, SHOULD BE MADE FOR THE CHILD TO COMMUNICATE THE FATHER?
The father seeks an order that he be able to speak to the child on the child’s birthday, on Fathers’ Day, at Easter and, at Christmas and to be able to send cards and gifts to the child on the child’s birthday, at Easter, and at Christmas. The mother opposes the telephone communication but agrees to the proposal about gifts and cards. The ICL supports the father being able to send gifts and cards on special occasions.
Ms S opined that while telephone communication might be beneficial for the child, it would have to be well monitored so that he was not exposed to any difficult comments or conversations which would likely cause confusion. In Ms S’s view, the difficulty with telephone communication is that if there are problems, she struggled to suggest a means for the child to be supported in a way that would protect him. Ms S also opined that such communication may well become more difficult as the child gets older and questions why he is not spending time with his father. I accept Ms S’s opinions.
In the circumstances of this case, I am not satisfied that telephone communication is in the child’s best interests. I am prepared to make the order for the father to be able to send cards and gifts to the child for the child’s birthday, at Easter, and at Christmas. The mother agrees to that limited form of contact, and it is supported by the ICL. Ms S opined that the receipt of such limited communication could be of some benefit to him e.g., it would be a way of helping the child to know that his father loves him. I accept Ms S’s opinion.
DISPOSITION
I have found that the father poses an unacceptable risk of harm to the child and that long-term supervision is not in the child’s best interests. The father will nevertheless be permitted to send gifts and/or cards to the child on specific occasions but not otherwise contact or communicate with the child.
The mother will have sole parental responsibility for the child but keep the father updated about health and education matters.
I will request the ICL provide a copy of these reasons to the Department for their information, and I request that their attention be directed to paragraphs [36] – [54], [57] – [61], [72] – [76] in particular.
MICELLANEOUS
During the father’s cross-examination, he was asked about his reporting requirements under s 50(1) of the CPOR and whether he had met those requirements, in so far as they related to his allegedly sharing a file containing child exploitation material in or about mid-2019 and in so far as he had contact with two of his nieces, M and P, at his home for several days, including overnights, in early to mid-2023 while his sister, N was allegedly also staying with him.
While the father maintained he had complied with his reporting requirements, it seems to me there is room for doubt. Accordingly, as the father initially objected to answer questions but was required to do so, a certificate under s 128 of the Evidence Act 1995 (Cth) will issue to the father in relation to the evidence provided by him about his reporting requirements under s 50(1) of the CPOR.
It is common ground that the father lived for a time with his mother when one of his nieces, M, was also resident in the home. The father contends that he reported to appropriate authorities that he would be living at his mother’s home while his niece, M, was also living there. Surprisingly, no intervention occurred to prevent the father from living with his young niece.
The father conceded that he had not specifically reported that two of his nieces would be staying with him for several days, including overnights, in early and mid-2023. The father denied that he had thereby breached his reporting obligations. The father maintained that when he was initially added to the sex offender register, he notified appropriate authorities that he would be having regular supervised contact with his then three nieces and later a fourth niece (after she was born). The father maintained that although he did not report his two nieces staying at his home in early and mid-2023 while his sister, N, was also staying, he maintained that he was not required to do so, as it did not represent a change from his initial reporting. I must say I would find it remarkable if the father was not required to specifically report his two nieces staying overnight at his home. Even if his sister were present, it could not be said that his contact with his nieces was therefore supervised.
I respectfully request the Department to ensure the future welfare of the father’s nieces who, in my view, should not be spending time overnight at the father’s home.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 20 October 2023
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