NUNES & NUNES (No.2)
[2017] FCCA 20
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NUNES & NUNES (No.2) | [2017] FCCA 20 |
| Catchwords: FAMILY LAW – Interim hearing – competing parenting proposals for father’s proposed time with children aged 2 and 4 years – whether such time should continue to be supervised – interim orders made for the children to spend weekly unsupervised time with the father during the daytime subject to protective conditions. |
| Legislation: Family Law Act 1975, ss.60CC, 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D, 68L |
| Cases cited: Banks & Banks (2015) FamCAFC 36 Goode & Goode (2006) FLC 93-286 Helbig & Rowe [2016] FamCAFC 117 |
| Applicant: | MR NUNES |
| Respondent: | MS NUNES |
| File Number: | PAC 3062 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 15 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Solicitors for the Applicant: | O'Sullivan Legal |
| Counsel for the Respondent: | Mr O'Brien |
| Solicitors for the Respondent: | JB & Associates Solicitors |
ORDERS, PENDING FURTHER ORDER
All previous parenting orders be discharged.
The mother shall have sole parental responsibility for the children X born (omitted) 2013 and Y born (omitted) 2014 (“the children”).
The children shall spend time with the father as follows:
(a)From 28 January 2017 to 31 March 2017, each week on a Saturday or Sunday for a period of 4 hours between 9:00am and 5:00pm;
(b)From 1 April 2017 to 31 May 2017, each week on a Saturday or Sunday for a period of 5 hours between 9:00am and 5:00pm;
(c)From 1 June 2017 and thereafter, pending further order or agreement, each week on a Saturday or Sunday for a period of 6 hours between 9:00am and 5:00pm; and
(d)At any other or alternate times as agreed between the parties;
Provided that the father shall give the mother notice by text message or email, not less than 4 days prior of his intention to spend time with the children as above.
The father shall collect the children from the mother’s home at the commencement of any time to be spent with the children, as above, and the mother shall collect the children from the father’s home at the conclusion of such time.
The father is prohibited from accessing or viewing pornography during periods of time that the children are in his care.
The father and the mother are to use their best endeavours to ensure that the children are not exposed to pornography, and they are to use their best endeavours to ensure that there is no pornography on computers or other electronic devices to which the children would have access to within each of their households, and they are to activate child lock anti-porn software on such devices when the children are in their respective care.
Each party be restrained from consuming alcohol to excess of 0.05 in the 12 hours preceding contact and during any period of contact with the children.
In addition to the times the children will spend with the father in accordance with these orders, in the event the children will not be spending time with the father in accordance with the orders set out above, the children will spend a period of 5 hours with the Father on:
(a)Christmas day,
(b)Each of children’s birthdays,
(c)Father’s day; and
(d)The father’s birthday,
between 8:00am and 7:00pm unless alternative times are agreed, and provided that the father gives the mother at least 7 days’ notice in writing of his intention to do so.
And for the purpose of this order the father will collect the children from the mother’s home at the commencement of such time, and the mother will collect the children from the father’s home at the conclusion of such time.
The children are to communicate with their father by telephone on every Tuesday and Thursday between 6:30pm until 7:00pm to be facilitated by the mother telephoning the father’s landline or mobile telephone number and causing the children to take the telephone call in privacy with their father.
The parents are each restrained by injunction from denigrating the other parent or members of the other parent’s family to the children or in the presence of the children or at all; and each parent is to remove the children from the presence of any third party denigrating the other parent or members of the other parent’s family.
The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the children or in the presence of the children.
The parents are each restrained by injunction from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
The father shall, within 14 days, attend upon his usual General Practitioner (“GP”) and thereafter attend bi-monthly reviews with the GP, in relation to the voyeuristic disorder referred to by psychiatrist Dr J in his reports of 7 February 2016 and 23 May 2016.
The father shall cause copies of the above psychiatric reports to be provided to his usual GP on the first attendance upon him/her pursuant to the above order. The father, attending upon his usual GP for such bi-monthly reviews, shall comply with any treatment recommendations of his usual GP in relation to the voyeuristic disorder, including attending upon any forensic psychiatrist experienced in treating sexual deviant disorders (such possible referral referred to in the above psychiatrist’s reports) that the GP may refer the father to for treatment.
Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children X born (omitted) 2013 and Y born (omitted) 2014 (“the children”), shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.
The solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW notice of these Orders and copies of the documents filed in the proceedings on behalf of their respective clients.
Leave is granted to the parties and the Independent Children’s Lawyer to issue more than 5 subpoenas for the production of documents.
IT IS NOTED that publication of this judgment under the pseudonym Nunes & Nunes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3062 of 2015
| MR NUNES |
Applicant
And
| MS NUNES |
Respondent
REASONS FOR JUDGMENT
Since about December 2015 the father has been spending supervised time with the two (2) children of the relationship, X born (omitted) 2013, and Y born (omitted) 2014. He now seeks interim orders that this time should become unsupervised.
Relevant to this supervision issue, and in the context of considering whether the father’s parenting capacity might be adversely affected in some relevant manner, are, inter alia, evidence relating to the father’s viewing of adult pornographic material and disputed allegations that the father covertly photographed the mother’s sister when naked in the parties’ bathroom and uploaded the photographs to an internet website.
The father contends that a jointly qualified psychiatrist, Dr J, has assessed the father, having taken a history from him as to, inter alia, his adult pornography viewing, has considered the mother’s disputed allegation that the father covertly photographed the mother’s sister (as referred to above), and has provided an opinion that the children are not at risk of harm in spending unsupervised time with him and the Court should accept that opinion.
The mother contends, inter alia, that without appropriate and probative psychiatric evidence, no party is in a position to determine how the father’s “worrying” sexual conduct would impact upon his parenting ability of the two (2) children. The Court should proceed cautiously and carefully, until proper evidence can be placed before the Court, and in the interim, the children’s time with the father should continue to be supervised.
Procedural History of Proceedings
The father’s Application in a Case was filed on 4 March 2016, wherein he sought orders, inter alia, that the interim consent parenting orders made by the Court on 11 December 2015 be discharged, and that he spend unsupervised time, including (eventual) overnight time, with the children of the relationship, namely X born (omitted) 2013 and Y born (omitted) 2014 (“the children”).
The mother had filed her Initiating Application on 25 June 2015, seeking, by way of interim orders, that:
a)she have sole parental responsibility;
b)the children live with her;
c)the children spend time with the father supervised through a Contact Centre (each alternate Sunday for a period of two (2) hours, or at such times nominated by the Centre); and
d)the father provide to the mother copies of all reports by medical practitioners he has received for physical or mental health issues and for which he has received treatment for the past three (3) years.
On 11 December 2015, interim consent parenting orders were made providing for, inter-alia:
a)the father to spend supervised time with the children (through (omitted)); and
b)that Dr J (a consultant forensic psychiatrist, and hereinafter referred to as “the psychiatrist”) be forthwith jointly instructed to report upon the father’s alleged reactive depression and voyeurism, and whether or not the father poses an unacceptable risk to the children should the father’s time spent with them not be supervised.
On 12 February 2016, the Court released to the parties the psychiatrist’s Forensic Psychiatric Court Report dated 7 February 2016.
On the 18 March 2016, by consent, the Court made orders and directions in relation to the preparation of a supplementary expert report by the psychiatrist. In this context, the mother’s solicitor was to provide to the psychiatrist a copy of Annexure A to her Affidavit filed 16 March 2016, being copies of nude and other photographs of the mother’s sister, Ms K (“Ms K”), aged about 25 years, allegedly uploaded to a website by the father. The proposed supplementary report by the psychiatrist was to address further issues, including:
a)whether the psychiatrist’s opinions in his initial report would be altered “if the husband had caused the additional material to be uploaded to the Internet”; and
b)if the psychiatrist’s opinions in his initial report did change, would this alter the psychiatrist’s assessment as to whether the father was considered a risk to the children.
Finally, on 18 March 2016, the father’s Application in a Case filed 18 March 2016 was adjourned to 28 July 2016.
On 31 May 2016, the supplementary report of the psychiatrist dated 23 May 2016 was released to the parties.
The mother, at the outset of the interim hearing on 28 July 2016, sought that the hearing be adjourned, pending the psychiatrist “answering the specific questions asked of him by the parties regarding his supplementary report”. The mother also sought orders:
a)for the appointment of an Independent Children’s Lawyer;
b)that an order be made for a Family Report; and
c)that the matter be transferred to the Family Court of Australia at Parramatta. (See the mother’s Case Outline, being Exhibit E).
In the event that the adjournment application was not granted, the mother sought orders, inter alia:
a)That the mother have sole parental responsibility for the children;
b)That the children live with her;
c)That the father continue to spend supervised time with the children at the (omitted) Supervised Contact Centre on each alternate Sunday for a period of two (2) hours from 4:00pm to 6:00pm, or at such times nominated by the said Centre; and
d)That the father provide the mother with copies of all medical reports for his physical or mental health treatment for the past three (3) years. (See mother’s Case Outline, being Exhibit E).
The mother’s adjournment application was dismissed by the Court and the interim hearing was heard.
On the adjournment application, which was opposed by the father, the mother’s Counsel made oral submissions, inter alia, that the psychiatrist, in his reports, had made certain findings in the absence of interviewing the mother or the children. The psychiatrist had only interviewed the father. The Court notes that the psychiatrist was not instructed to assess the mother or the subject children (see page 2 of 11 of the psychiatrist’s first report.)
Further, the mother’s Counsel submitted that the mother (and hence the Court) does not know how the father’s “probable voyeuristic disorder”, as found by the psychiatrist (on the assumption that the father did in fact upload the photograph of the mother’s naked sister onto the Internet), impacted upon his ability to parent the children and whether the children were safe from harm in his care.
The Court notes that the mother’s Counsel did not tender or present to the Court any documents on the adjournment application relating to the further specific questions put to the psychiatrist. The Court notes that no explanation was given to the Court by the mother’s Counsel as to why the adjournment application had not been made prior to the interim hearing. Further, in this context, the Court notes that:
a)the father’s Application in a Case (in which he sought unsupervised time with the children) had been filed on 4 March 2016;
b)he had been spending supervised time with the children since about late December 2015;
c)the mother’s apparent request to the psychiatrist to answer further specific questions, apparently made on 8 July 2016, was not the subject of previous Court directions; and
d)in the circumstances pertaining at the interim hearing, it was perfectly open to the mother to make appropriate objections and submissions in relation to the psychiatrist’s reports, if so advised.
Material Relied Upon
The father relied upon the following documents:
a)Application in a Case filed 4 March 2016;
b)Affidavits of the father filed 21 August 2015, 11 December 2015, 4 March 2016 and 28 July 2016;
c)Forensic Psychiatric Court Report of Dr J dated 7 February 2016;
d)Supplementary Forensic Psychiatric Court Report of Dr J dated 23 May 2016;
e)Child Dispute Conference Memorandum to Court dated 25 February 2016.
f)Case Outline (Exhibit A); and
g)Written Submissions in Reply dated 12 August 2016.
Report of Dr T, Clinical Psychologist
The father sought to rely upon the report of psychologist Dr T, Clinical Psychologist, dated 8 August 2016. The background to the father’s belated tender of this report, after the Court had reserved its decision on the interim hearing, is referred to in the Court’s Reasons for Decision in respect to the mother’s Application in a Case filed 10 October 2016, which was dismissed.
Again, the last mentioned report of Dr T was sought to be included in the father’s evidential material through his written submissions in reply following the interim hearing. This report was then objected to by the mother. A short mention of the proceedings was held on 29 September 2016 and the mother was directed to file written submissions on why the report should not be admitted into evidence. A written submission was received from the mother’s Counsel dated 24 October 2016, which was in support of the mother’s Application in a Case that I disqualify myself (the Court noting that this Application in a Case was later dismissed). The submission of the mother did not address the substance of the report of Dr T itself.
A further mention of the proceedings was held in relation to the report of Dr T, to hear any further submissions of the parties on 15 November 2016; the Court seeking to afford procedural fairness again to the parties. At that mention, the father’s solicitor formerly sought leave to reopen his case at the interim hearing so as to tender the report. He submitted, inter alia, that the report of Dr T sought to provide a pathway of reasoning of the Dr which was not contained in the initial short report of Dr T (MFI I) which was successfully objected to at the interim hearing, noting that the conclusions in the initial report and the report of the doctor were the same. The mother’s solicitor submitted, inter alia, that leave to re-open should not be given, noting that the report of the Dr was commissioned after the interim hearing.
The Court now rules that the father should not be given leave to reopen his evidence at the interim hearing with the consequence that the report of Dr T should not be permitted to be tendered by the father. The father gave no satisfactory explanation as to why this report, prior to the interim hearing held on 28 July 2016, had not been previously commissioned. The Court notes that MFI 1 of the interim hearing, the report of Dr T dated 12 April 2016 (ruled inadmissible by the Court on 28 July 2016), was prepared well prior to the date of the interim hearing. The clear directions of the Court, agreed to by the parties prior to the interim hearing, was that the only expert evidence which was to be before the Court at the interim hearing was the reports of Dr J, Psychiatrist. The mother’s side were clearly prejudiced by the belated tender of this report by the father, by, inter alia, being effectively unable to issue subpoenas for the production of documents to Dr T.
Even if the Court was incorrect in rejecting the tender of the report of Dr T dated 8 August 2016, and had allowed the father to rely upon the report at the interim hearing, the Court would have placed little or no weight on the said report by reason of, inter alia, the partisan nature of the opinions of Dr T; for example:
a)the partisan nature of the doctor’s commentary under the headings “Concurrent Stressors,” “Concurrent Personal Stressors” and “Prognosis,” on pages 3, 7, 8, and 13 of the report, including the doctor’s reference to “unsubstantiated insinuations/inflammatory remarks made by [the mother]”;
b)the doctor’s suggestion at the bottom of page 8 of his report that the mother should undergo a full psychiatric report to establish her current mental health status, “as there are strong indications of a personality or mood disorder;” and
c)her statement that, “It appears that the claims made by [the mother] are made with prejudice and there is no substantiating evidence of the assertions.”
The mother relied upon the following documents:
a)Initiating Application filed 25 June 2015;
b)Affidavits of the mother filed 25 June 2015, 17 November 2015, 16 March 2015 and 27 July 2016; and
c)Affidavits of Ms K filed 28 June 2016 and 27 July 2016;
d)Case outline (Exhibit E); and
e)Written submissions dated 5 August 2016.
There were numerous documentary exhibits tendered in evidence; the Court has considered all those exhibits.
The mother’s Counsel objected to certain parts of the psychiatrist’s reports. The objections were overruled.
As to the psychiatrist’s first report, objection was taken to paragraphs 5 and 6 on pages 9 and 10 of the report. It was submitted that the principles applicable to experts and their reports as set out in the decision of Makita (Australia)Pty Ltd v Sprowles [2001] NSWCA 305 had not been complied with by the psychiatrist; inter alia, the psychiatrist had not set out the relevant facts nor his reasoning process in reaching his conclusions, he had not met with the children, nor had he interviewed the children with the father, and noting that the psychiatrist had purported to provide recommendations regarding the father’s parental capacity.
As to the psychiatrist’s second report, objection was taken to the psychiatrist’s opinions and comments expressed under heading c) on page 3 of that report.
The Court overruled the objections, having formed the view from the contents of the reports that the relevant principles in the above decision (Makita v Sprowles) had arguably been complied with by the psychiatrist.
The Court notes, inter alia, that the psychiatrist had, in his first main report:
a)referred to his agreement to be bound by the relevant Expert Witness Code of Conduct;
b)referred to his reading and understanding of the relevant Rules of this Court and relevant Rules of the Family Court of Australia;
c)referred to his compliance with the requirements of the Guidelines for Psychiatrists in relation to the Family Court Proceedings (Royal Australian and New Zealand College of Psychiatrists, RANZCP 2015)
d)noted that he had not been instructed to assess the mother or the children (see Exhibit D, being the parties’ solicitors’ joint letter of instructions to the psychiatrist dated 13 January 2016);
e)set out in detail the sources of information that he reviewed (pages 2 and 3);
f)referred to his clinical psychiatric assessment of the father conducted on 29 January 2016;
g)set out factual information in the reports; and
h)given an arguably appropriate reasoning process for the opinions stated in the reports based on such information.
The Court also notes that the parties had previously agreed to orders (of 11 December 2015 and 18 March 2016) that the psychiatrist provide an opinion on whether or not the father posed an unacceptable risk to the children should the father’s time spent with them not be supervised. The Court refers to the psychiatrist’s curriculum vitae, including in relation to psychiatry experience in relation to children, referred to later in these reasons.
Agreed or Undisputed Relevant Facts (unless otherwise stated)
The father was born on (omitted) 1982 and is presently 34 years of age. The father is an (occupation omitted). He asserts that he works 35 hours per week and is also on call every four (4) weeks in his employment. (It is noted that the mother asserts that during the parties’ relationship, the father worked significantly more than 35 hours a week and she estimates, in her Affidavit filed 16 March 2016, that the father works on average 50 hours a week).
In the father’s Affidavit filed 4 March 2016, he states that the children are in good health; they are happy and vibrant children. The mother, in her Affidavit in response filed 16 March 2016, does not dispute this assertion.
The mother was born on (omitted) 1984 and is presently 31 years of age. Her parents are from (country omitted) and migrated to Australia in about 1983. The mother now has two (2) siblings, one being Ms K born (omitted) 1987. The mother has studied at (omitted) in (omitted); she has worked at a (employment omitted); she worked for a (employer omitted) in (omitted), and started working at (employer omitted) in 2005 until 2015, when she took unpaid leave.
The parties met in high school and commenced a relationship as “boyfriend and girlfriend” in or about (omitted) 2006. The father was employed at (employer omitted) and the mother was employed at (employer omitted).
The parties were married on (omitted) 2012 and commenced cohabitation in June 2012. The mother fell pregnant with the parties’ first child X during this time and she ceased working and commenced Maternity Leave in December 2012.
In November 2012, the mother alleges, at a time when she was on the father’s computer looking for a document, that she found a photograph of the father in her sister Ms K’s bedroom, with an erect penis and Ms K’s underwear. The father did not admit this allegation by reference to paragraph 22 of his Affidavit filed 21 August 2015.
However, in the history taken by the psychiatrist from the father, and referred to in paragraph 170 of his initial report, the psychiatrist states that:
The mother additionally found about 10 photos on his computer, which were of the mother’s (adult) sister’s underwear and [the father’s] erect penis, taken from his camera phone (see [23-26] mother’s Affidavit dated 25.6.15). [The father] said that he had found the mother’s sister, aged about 25 years, attractive. At one stage [the parties] were living in the mother’s family home to save money, and the mother’s sister lived in one of the bedrooms. He was moving their items from certain bedroom areas, when he noticed that the sister had laid her underwear out on her bed. No one else was around. He was aroused and took the photos. [The father] was remorseful when the mother discovered the photos; he deleted the photos and physically destroyed the computer hard drive.
In about September/November 2012, the father attended upon Dr L, General Practitioner at (omitted) Medical Centre. The father was placed on a GP Mental Health Treatment Plan, to assist with habitually watching pornography. The father also began to see a Counsellor.
In about September 2013, the mother confronted the father in relation to certain money withdrawals from the parties’ joint bank account. The father told the mother he had gone to a strip club with his boss and he had paid for “private lap dancers and paid for a private room. I was just hanging with the boys.”
In late November 2013, the father became ill. He told the mother that he had been diagnosed with chlamydia. Eventually the father told the mother that he must have acquired that condition through having “cheated” on the mother “early on in our relationship.” In the interview by the psychiatrist with the father, on 29 January 2016, paragraph 180 in the psychiatrist’s initial report, the father told the psychiatrist that he had withdrawn cash and paid one of the exotic dancers to have sex with him in one of the back rooms. He said he probably contracted chlamydia from this encounter.
The child X was born on (omitted) 2013 and is aged 3 years. Following the birth of the child X, the father took four (4) weeks off work to assist the mother in the care of X. Thereafter, the father would assist the mother with the care of the child when he arrived home from work. On occasions the father would assist the mother to care for the child when the child woke during the night.
In the father’s Affidavit filed 4 March 2016, he states that since the child X’s birth he was a daily part of her life, save for a period when the mother terminated his contact. This assertion is not disputed by the mother. The father states that his home is a four-bedroom house; he occupies one room, his mother lives with him and she sleeps in the other spare room.
In November 2013, the parties moved into the maternal grandparents’ residence in order to save money. They separated on a final basis shortly thereafter, being in or about November 2013. The parties were divorced on 24 May 2015.
Following separation, the child X (who was some 10 months old at the time) remained living with the mother and spent regular time with the father; according to the mother, the father would visit the child X for a period of two (2) hours at a time about three (3) days per week; according to the father such time was on three (3) to four (4) occasions per week.
From February to April 2014, the child X spent “week about” time with the father.
In or about April 2014, the mother ceased such “week about” time because she felt that X had become “unsettled”. The father, for his part, asserts that the child X coped well during this period. In this context, the mother asserts that she is concerned for the child X’s health if her living arrangements were to be continuously disrupted.
Following April 2014, the father would spend time with the child X at the maternal grandparent’s residence two (2) to three (3) times per week for approximately two (2) to three (3) hours on each occasion. On occasions the father would collect X from the maternal grandparents’ residence and take her to day-care at (omitted) Early Learning Centre in (omitted).
When the mother was pregnant with the child Y, the father would, on occasions, stay overnight at the maternal grandparents’ residence to assist the mother with the care of X during the night.
The child Y was born on (omitted) 2014, being some seven (7) months after separation. Y is presently two (2) years of age. The father attended the hospital when Y was born. After the birth of Y, the mother remained in hospital for one (1) to two (2) weeks and the child X was in the father’s care for one (1) week. The father then spent overnight time with X each alternate weekend. The father would also spend time with both children each Tuesday and Thursday for two (2) hours at the maternal grandparents’ house.
The father states that because of the mother’s decision to “block” him out from spending time with the children, the mother has been the child Y’s main carer; however, he states that nevertheless he has been involved with him so that he too is a familiar parent in his life and is able to be a comfort to him. The father states that since this child’s birth, he has in his own way, taken part in the raising of him. He states that apart from the video calls, he has been seeing this child at the Contact Centre, where he takes the child fresh fruit; he also changes this child’s nappy unassisted, and otherwise plays with and cares for him.
In October 2014, the parties participated in mediation at the Family Relationships Centre at (omitted). At such mediation the parties agreed that the father would continue to spend each alternate weekend with the child X from 6:00pm on Friday to 5:00pm on Sunday, and that he could also attend upon the maternal grandparents’ residence each Tuesday and Thursday for two (2) to three (3) hours to spend time with both children.
In November 2014, the child X stayed with the father at his residence for one (1) week while the mother travelled to (country omitted) for a holiday. The child Y stayed with the maternal grandparents.
On or about 10 November 2014, the mother was informed by her sister Ms K that naked photos of herself in the parties’ bathroom had been leaked onto the Internet. The sister then moved out of the family home. The mother and sister Ms K promptly reported this information to the NSW Police. The mother alleged that the father had posted nude images of Ms K on an online forum, the father disputes this allegation. The father’s written submissions in reply, in this context, notes that “no charge or ADVO has ever issued (against the father). JIRT have not been involved.”
Following the allegations by the mother in November 2014, the mother ceased the father’s regular time with the children. The father maintained contact with the children via video calls.
On 25 December 2014, the father spent Christmas with the children supervised by the mother.
On (omitted) 2015, the father spent supervised time with the children at the child X’s birthday party.
On 3 May 2015 and 17 May 2015, the father spent time with the children supervised by the mother.
On 25 June 2015, the mother commenced family law proceedings in this Court seeking orders, inter alia:
a)That she have sole parental responsibility for the children;
b)That the children live with her; and
c)That the children spend time with the father as agreed between the parties and subject to the recommendations of a Family Report.
The mother alleges that since she met the father he has had a problem with binge drinking. She asserts that the father often drinks once a week, so much so that he often vomits when he drinks, becomes unaware of his surrounding and loses his cognitive ability. The father, for his part, denies that he has a drinking problem. He estimates that from the time of X’s birth, he did not drink alcohol on more than 25 occasions per year. He asserts that he does not now drink alcohol on any regular or frequent basis and he estimates that he has an alcoholic drink no more than on about six (6) or seven (7) occasions per year.
On 5 July 2015, the father had supervised contact with the children at Mounties for two (2) hours.
The report of Dr C, treating psychiatrist dated 8 December 2015 is in evidence. He saw the father in consultation on two (2) occasions in 2015; on 17 March 2015 and 3 July 2015. The purpose of this doctor seeing the father was to assess his emotional state, as he was expressing difficulties coping with the recent breakup of the marriage. At the time this doctor first saw the father, the doctor did not feel that the father was suffering from any major psychiatric disorder that warranted ongoing psychiatric treatment. He then saw the father again on 3 July 2015 in a supportive/counselling capacity. In this report, the doctor expressly states that he did not conduct any psychiatric interview with the father with the intention of identifying and addressing the possible forensic issues that the father’s solicitors had raised in their letter of 3 December 2015 to the doctor. The Court notes that this doctor did not address the matters that the psychiatrist Dr J considered.
On 11 December 2015, the parties entered into interim consent parenting orders providing, inter alia:
a)That the father spend time with the children, supervised by (omitted) – Family Contact Services (or other such supervising agency nominated by the father); and
b)That Dr J be jointly instructed to prepare a Forensic Psychiatric Court Report touching upon the father’s alleged reactive depression and voyeurism, and whether or not the father possesses an unacceptable risk to the children should his time spent with them not be supervised.
The parties implemented the Orders of 11 December 2015 and the father has spent regular supervised time with the children since about that time; order 1(c) of Exhibit A to those orders provides that
…the father spend time with the children supervised by (omitted) - Family Contact Services or other such supervising agency nominated by the father… commencing 3 January 2016 and each Sunday thereafter for a period of 3 hours between 9:00am and 5:00pm.
Order 2 of Exhibit A to those orders provides that the father’s supervised time of the children “is not restricted to a contact centre.” In this context, the Court notes the mother’s evidence in paragraph 15 of her Affidavit filed 27 July 2016, that, “In or around April 2016, the father’s visits to the children have been on a fortnightly basis.”
On 7 February 2016, Dr J, Forensic Psychiatrist, released his Forensic Psychiatric Court Report.
On 25 February 2016, the parties attended a Child Dispute Conference before Ms B, Family Consultant. The mother and the father were both interviewed separately.
On 18 March 2016, the parties, with the assistance of their legal representatives, entered into consent orders providing, inter alia, that Dr J be instructed to prepare a Supplementary Forensic Psychiatric Court Report providing an opinion on the following matters:
a)Whether his opinions in the Report of 7 February 2016 would be altered if the father had caused the additional material to be uploaded to the internet (such material being the photos of the mother’s sister);
b)If those opinions did change, his new opinions and the basis for the change of opinion; and
c)Whether his assessment as to whether the father would be considered a risk to the children would be altered if the opinions expressed in the report of 7 February 2016 did change.
On 23 May 2016, Dr J released his Supplementary Forensic Psychiatric Court Report.
In the mother’s Affidavit filed 16 March 2016, she annexes (Annexure A) copies of the photographs she alleges were uploaded onto the Internet by the father.
In the above Affidavit of the mother, at paragraph 9, she states, in relation to a proposal of the father to spend time with the children each alternating week from Wednesday to Monday of the following week, that she does not agree to this proposal at all; she states that not only are the children simply too young, in addition to X being sensitive to disruptions in her living arrangements, but the mother is also fearful of the children being exposed to the father’s addiction to pornography and voyeurism, which form part of her main concerns.
The mother states, in paragraph 10, inter alia, that she had and currently still holds grave concerns for the children and that they would be exposed to the father’s “sexually deviant behaviour” (again, the Court notes the father’s denials in this context) and she only hoped to protect them from harm, whether physical or psychological.
In paragraph 11, the mother refers to a text message sent to the father on 24 May 2016, when she told him, inter-alia:
I don’t trust you being alone with the kids or for them to see you without me there. Your warped mind and sexual disorders have led us here, to me raising two children by myself
Again, the Court notes the father’s relevant denials in this context.
The mother’s Affidavit filed 27 July 2016, states, inter alia, at paragraph 6, that “After the incident, Ms K stopped visiting our home to see the children.” Later, in about April 2016, the sister told the mother that sometimes when she looks at the child X, she sees the father and she sees the resemblance, and it traumatises her. The mother states that on the occasions that Ms K comes over, she was able to observe her interactions with the children and that Ms K appears to be more withdrawn.
In the Affidavit of the mother filed 27 July 2016, she refers to various conversations she allegedly had with the father and the paternal grandfather on 2 April 2016. The mother alleges, in relation to the allegation that the father photographed the sister and uploaded the photos to the internet, that she stated to the father “You put a camera in someone’s bathroom. It’s just not normal. If you can go to that extent I am really fearful of what you can do.”
The mother alleges that at this time, the father stated to the paternal grandfather:
I’ve admitted to everything except the photos because she wants to tell and say that I’m going into child porn for doing that. I’m not a child porn user. I’m currently seeing a psychologist who specialises in sexual disorders.
The mother further alleges that at one point in the conversation, the father told the paternal grandfather, inter-alia, “I would admit to it but I’ll get done for child porn.”
The father’s Affidavit of 28 July 2016 does not expressly respond to these alleged conversations, referred to above, noting that on page 4 of that Affidavit under the heading “The mother’s Affidavit 27 July 2016” the father does not refer to them.
The Affidavits of the mother’s sister, Ms K (“Ms K”), confirmed that the uploaded photographs relate to herself and were taken without her consent and knowledge. She confirms that it is her belief that the father had uploaded the photographs of her and that she had stated to a counsellor:
He’s made me feel differently towards anybody that resembles him … He’s made me feel very uncomfortable even when I look at my niece, whom I love and adore, because they simply look like him.
She states that she has harboured suicidal ideation since the incident. She states that she felt scared when she discovered that there were images of herself on an online forum. Again, the Court notes the father’s relevant denials in this context.
In the Affidavit of the mother’s sister Ms K filed 27 July 2016, she annexes counselling notes in relation to her attendance upon a psychologist, and in which she relates, inter alia, to the alleged incidents relating to the photographs taken of her and which were uploaded onto the Internet, and the negative reactions she experienced. In the consultation with the psychologist of 8 April 2016, it is reported, inter-alia, that “Things have improved since last session. Did have a nightmare recently… Feels angry that “he” wasn’t punished.”
The father’s Affidavit dated 28 July 2016, refers to him having received a telephone call from the police at which point the police advised him that the mother’s sister had lodged a complaint and the police had asked him if he had posted the photos as the mother’s sister believed he had posted them. The father stated to the police that it was not him and he was not contacted in person or by telephone again by the police.
Evidence
Dr J, Psychiatrist’s Reports
The father reported, inter alia, that during the marriage he was viewing adult material more extensively each day than what he was doing presently.
The father told the psychiatrist that his manner of viewing adult material was discreet, when viewing the adult material on his phone or laptop. The father described a preference for pictures and movies involving (country omitted) adult females.
The father denied to the psychiatrist, inter-alia, any paedophilic content to the adult material accessed.
The psychiatrist took a history from the father of his alcoholic drinking. He stated that the father’s account lay between his mother’s assertion that the father rarely drinks alcohol, compared to the mother’s assertion in June 2015 that the father was binge drinking once per week.
The psychiatrist took a history from the father in relation to the mother’s allegation against him that he had taken a covert photo of her sister in the shower, and that the sister had discovered a naked photo of herself in the shower was distributed online. The father told the psychiatrist that following the accusation, he provided a statement to the police denying involvement.
The father denied any obsessions or compulsions to the psychiatrist. He denied any deviant sexual interest or arousal, specifically denying any paedophilic, sadistic or voyeuristic interest (paragraph 210).
The psychiatrist, addressing the specific issues, stated, inter alia, at paragraph 220:
His use of pornography was non-deviant from his self-report and the adult content described was well within the realm of normal sexual interest for adult males. Despite his denial of voyeuristic arousal, his taking photos of the mother’s sister’s underwear with his erect penis, demonstrates some voyeuristic behaviour tendencies.
The psychiatrist stated that, from the information made available to him, it was his opinion that the father had psychiatric diagnoses consistent with adjustment disorder with depressed mood (in full remission) and possible voyeuristic disorder (mild).
The psychiatrist stated that the father’s pornography interest would not be described clinically or medically as “addiction”, indeed his interest fell within the normal range for similarly aged males. He stated that due to past quasi voyeuristic behaviour described in the report, there was a suggestion of voyeuristic disorder. He stated that voyeuristic disorder involves intense sexual arousal from observing an unsuspecting person who was naked, in the process of disrobing or engaging in sexual activity, as manifested by fantasies, urges or behaviours (paragraph 250).
The psychiatrist stated that:
[The father’s] possible voyeuristic disorder was of mild intensity and may be considered a partial extension beyond normal adult sexual interest. As such, this does not require specific treatment at present. His GP could monitor these issues in bimonthly reviews.
The psychiatrist stated, at paragraph 290, that he held:
… no concerns about the current and foreseeable mental state of the father as it related to parenting. The father demonstrated appropriate and adequate parental capacity to the needs of the subject children, to put their needs above that of his own, including their emotional and intellectual needs. He had a good attitude towards being a parent and being a responsible father for the children. I hold no significant concerns in this regard.
The psychiatrist further stated, at paragraph 300, that:
There were no indications from the forensic psychiatric assessment of the father or from the review of the material provided, that any of the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. The likely effect on the children of spending equal time or substantial and significant time with the father is that the children will have a greater positive and meaningful relationship with the father. This is important for the children’s emotional and relational development. I held no concerns about the father’s current and future capacity to implement such an arrangement and communicate and resolve difficulties that may arise with the mother.
In the psychiatrist’s second supplementary report, inter-alia, the psychiatrist referred to a black-and-white print out of several photographs being provided to him by the parties, and noted that the mother had asserted that the father had uploaded these photographs (page 2, second paragraph).
The psychiatrist stated that if the father had caused the additional material to be uploaded to the Internet his psychiatric opinion of the father would be slightly modified. He stated, in this context, at paragraph 60:
Despite his denial of voyeuristic arousal, his taking photos of the mother’s sister’s underwear with his erect penis, demonstrated some voyeuristic behaviour tendencies. If the writer additionally assumed that he caused the provided photographs to be uploaded to the Internet, then this represents a stronger pattern of voyeuristic behaviour.
The psychiatrist went on to state that it was now his opinion that the father has psychiatric diagnoses consistent with adjustment disorder with depressed mood (in full remission) and probable voyeuristic disorder (rather than possible voyeuristic disorder as stated in the original report), however it is reasonably clear that this latter diagnosis was made on the assumption that the father “had uploaded the photos provided” (see the second paragraph on page 3 of 5).
The psychiatrist stated, inter alia, that recommendations for treatment of the father remain consistent with his original report, stating, “Again, I formed the view that his GP could monitor these issues in bi-monthly reviews.”
The psychiatrist stated that he continues to hold no significant concerns about the current and foreseeable mental state of the father as it related to parenting. He further stated, at paragraph 90:
He demonstrated appropriate and adequate parental capacity for the needs of the subject children, to put their needs above that of his own, including their emotional and intellectual needs. He evidenced a good attitude towards being a parent and a responsible father for the children…. Similar to my original report, there were no indications from the forensic psychiatric assessment of the father or from review of prior and additional material provided, that any of the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father.
Child Dispute Conference Memorandum dated 25 February 2016
The parties were interviewed by the Family Consultant on that date.
The mother confirmed the allegations against the father relating to her sister Ms K, including the allegations relating to the father uploading photographs of her to the Internet (the father denied this to the Family Consultant).
The mother told the Family Consultant that she feared that the father might progress from an addiction to viewing adult pornography to viewing child pornography or sexually abusing the children, and that for this reason, the children should not spend unsupervised time with him.
The father denied ever viewing child pornography but admitted to regular viewing of pornography involving adults. He admitted that he had a problem with excessive viewing of pornography and excessive masturbation, stating that he accepted the psychiatrist’s diagnosis of “mild voyeurism” and was committed to attending therapy regularly with a clinical psychologist, Dr T. The father told the Family Consultant that he had already cut back his use of pornography and frequency of masturbation to about three (3) times per week. The father denied that the children would be at any harm in his care and further denied that, during any period he was spending with them, he would need to leave them unattended whilst going to view pornography and/or masturbate.
Both parties told the Family Consultant that they presently had no capacity to communicate or cooperate with each other. The father stated that he would like to work cooperatively with the mother in the future, for the sake of the children.
The mother told the Family Consultant that she thought the children would want to spend time with the father. She stated that until the father had allegedly placed the images of the maternal aunt on the Internet, she had been facilitating time between the children and the father.
The mother told the Family Consultant that she did not feel there were any paternal family members who were suitable to act as supervisors of the father’s time with the children; the mother confirmed that she had told all the paternal family members that the father was sick, as it was her intention to cajole members of the paternal family to influence the father to get psychological help for his problems. The mother stated that she did not receive the support that she thought she might and the paternal family members had defended the father.
The Family Consultant further stated:
Even if the father had placed the images of Ms K on the Internet, and taking into account his admission of extensive viewing of pornography and frequent masturbation to the point where he has been diagnosed with “mild voyeurism”.
It does not necessarily follow that he will go on to develop proclivities for viewing child pornography and/or seek to obtain sexual gratification from children.
Exhibits
The (omitted) Contact Reports (some 13 reports) from 20 December 2015 through to 24 July 2016, reporting on visits between the children and the father in the months of December 2015, January 2016, February 2016, March 2016, and July 2016, indicate, inter alia:
a)that the children and the father were physically affectionate towards each other;
b)that the children were comfortable around the father; and
c)that the children easily adapted to playing and interacting with him.
The children referred to the father as “daddy”. Reports indicate the father’s supervision of the children was age-appropriate and he was relevantly aware of safety issues. The father engaged in conversation with the children. The visits were of three (3) hours duration between 9:00am and 12:00 noon. On occasions, the father brought members of his extended family to see the children.
Submissions
The mother opposes the orders sought by the father for unsupervised time with the children. Inter-alia, the mother is fearful of the children being exposed to the father’s addiction to pornography and voyeurism. In relation to the mother’s allegation of the father having caused to be placed on the Internet nude images of her sister, the mother asserts that she holds grave concerns for the children that they would be exposed to the father’s “sexually deviant behaviour”, and hopes to protect the children from harm, whether physical or psychological.
The mother, in her Case Outline, confirms her allegations that the father is a porn addict, is diagnosed with voyeurism and reactive depression, frequents and spends excessively at strip clubs, is an alcoholic and has engaged in conduct of an unconscionable sort, bordering on criminality in which it is alleged that the father has posted nude images of the mother’s sister “Ms K” on an online forum. Such conduct casts serious aspersions over the father’s suitability as a role model, and of the father’s current emotional capacity to care for young children.
The mother’s criticisms of the psychiatrist’s reports include, inter alia, the fact that he did not meet or assess the children in the presence of the father.
The mother, in her submissions, referred to the father’s admitted behaviour of habitual use of pornography, the taking of photographs of himself with the mother’s sister’s underwear, and the allegation by the mother against the father that he took inappropriate photos of the mother’s sister without consent and then disseminating those photos on the Internet. It was submitted that without appropriate and probative psychiatric evidence, no party was in a position, at this interim hearing, to determine how this “worrying behaviour” of the father would impact upon his ability to parent the children.
The mother submitted that the proposed supervision requirement was not dependent upon the Court finding that there existed an unacceptable risk that the children would be exposed to psychological harm; for example, supervision may be appropriate in cases where the children are very young, and the other parent has limited experience in caring for children of that age.
The father submitted, inter alia, that the opinions of the psychiatrist should be accepted, including his opinion that he held no significant concerns about the father’s mental state as it related to parenting, and that the children were not at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. He submitted that the psychiatrist had considered and set out the sources of his information leading to his opinions.
It was submitted that:
The doctor was entitled to note that the father has staunchly and consistently denied any wrongdoing. No charge or ADVO has ever issued. JIRT have not been involved. The inexpert opinion of the mother, while she no doubt genuinely holds it, is not reasonably based, and simply irrelevant to the determination of these issues.
Later, the father submits, in this context, that the inexpert opinion of the mother, while she no doubt genuinely holds, is not reasonably based, and is not consistent with the relevant expert opinions provided by Dr J.
The father submitted, in relation to the mother’s submission that,
There is no indication that the father might not engage in similar behaviour again whilst the children are in his unsupervised care”, and that: “The mother’s inexpert opinion is irrelevant, Dr J as the jointly appointed expert has provided an expert opinion on these issues and his conclusions should stand.
The father submitted that he has done what has been asked of him and that is to provide expert psychiatric evidence to the Court addressing the risk factors which have been raised. He submits that his sexual pastimes do not fall within the ambit of section 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) and refers to Safir & Safir [2016] FamCAFC 3 and Helbig & Rowe [2016] FamCAFC 117.
The father submits that the mother’s evidence does not establish any factual connection between the father’s sexual pastimes and the children.
The father submits that the mother consented to extended periods of unsupervised time post separation:
… in the knowledge of the things that she now complains about, to that extent and as is repeated in the counsel’s submission, the Court will not regard the mother as a voice of reason on these issues.
The father submits that:
The condition of the aunt has not been established in the evidence falls from the wrongdoing of the father. He has denied any wrongdoing. This submission with respect is also misguided for that reason.
The father submitted that:
This Court is able to find that the father has a meaningful relationship with the children … The Court may consider an order for family [therapy] to be of benefit, the father undertakes to consent to his participation in such a mechanism to work with the mother in a post separation parenting alliance.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Consideration of the s 60CC factors that are relevant
[46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.
[47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.
[52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a) - Meaningful relationship primary consideration
The evidence before the Court at this interim stage indicates that the children have a meaningful relationship with each parent. The children would benefit from a continuance of their meaningful relationship with each parent.
The Court observes from the supervised contact reports that the children’s time spent with the father on these supervised visits have been positive. Inter-alia, the children and the father are affectionate with each other, and the children refer to the father as “daddy”.
In this context, the Court notes the psychiatrist’s view that the likely effect on the children of spending equal time or substantial and significant time with the father is that they will have a greater positive and meaningful relationship with the father. He stated that this is important for the children’s emotional and relational development (with the father).
Should the Court make an interim order that the children’s time with the father continue to be supervised by (omitted) - Family Contact Services (or other such supervising agency nominated by the father), there is a real risk that their present meaningful relationship with the father will not further develop and be enhanced.
The Court notes that the father has previous experience in caring for the child X on an overnight basis. In relation to the younger child Y, the father appears to have not spent time with him on an overnight basis yet. The children have been spending positive daytime time with the father on a supervised basis for some not insignificant time.
The Court is of the view at this interim stage that should the children now proceed to spend time with the father during the daytime on a Saturday or Sunday of each week, on an unsupervised basis, with their daytime time with the father being gradually increased from what is at present 3 hours on a Sunday (supervised through (omitted)) to ultimately 6 hours on the Saturday or Sunday, the children’s meaningful relationship with the father should be able to be maintained and enhanced.
At this interim stage, the Court is satisfied that such progression of the nature and extent of the children’s time with the father should not detrimentally affect the children’s meaningful relationship with the mother; the Court is not satisfied, on the evidence before it at this interim hearing, that the mother’s parenting capacity will be detrimentally affected in these circumstances.
The Court gives significant weight to this “meaningful relationship” primary consideration.
Subsection (2b) - Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; a primary consideration
The mother, being aware, inter alia, of the father’s continuing conduct relating to the watching of pornography from about September 2012 (see her Affidavit filed 25 June 2015), and of the father having photographed her sister’s underwear in about November 2012, she and the children continued to reside with the father up until their separation in about November 2013. Thereafter, and up until November 2014, the mother permitted the father to spend time with the child X, including overnight time, within the context of a week-about shared care arrangement between February and April 2014, on Saturday nights, and when the mother travelled to (country omitted) in November 2014. Such conduct by the mother suggests that she did not hold any relevant concerns for this child’s safety when cared for by the father over this extensive period.
It is noted that it was only after the mother ascertained details of her sister’s naked photographs on the Internet that she ceased to allow the children to spend time with the father.
The father, in November 2012, had attended his GP in relation to his pornography viewing. The GP referred the father to a counsellor, whom the father saw three (3) times for counselling.
On 29 January 2016, the father admitted to the psychiatrist that he took the photograph of the mother’s sister’s underwear in the bedroom occupied by the mother’s sister within the family home when “no one else was around”. He told the psychiatrist of his decreasing viewing of pornography since the marriage.
The father admitted to the Child Dispute Conference Family Consultant on 25 February 2016 that he had a problem with excessive viewing of pornography and excessive masturbation and gave a history of his decreasing viewing of pornography; he had cut back his use of pornography and frequency of masturbation to about three (3) times per week. The father accepted the psychiatrist’s diagnosis of “mild voyeurism”. The father stated that he was committed to attending therapy regularly with a clinical psychologist, Dr T.
The Court notes that there is no evidence before the Court that the father’s interest in pornography relates to children. There is no evidence that the father has inappropriately physically handled the children. There is no evidence that the father has been observed to be acting in any strange or unusual manner around the children. There is no evidence that the father is likely to wish to involve the children in his activities of viewing pornography or in relation to his acknowledged voyeuristic tendencies (e.g. the event involving the mother’s sister’s underwear). There is no evidence that the children have been exposed to the father’s activities relating to pornography or indeed any form of voyeuristic behaviour.
The Court notes the father’s acknowledged viewing of pornography to both the Child Dispute Conference Family Consultant and the psychiatrist and that the father has cut back on his viewing of pornography since the marriage ended. The Court notes the evidence that the father’s sexual activities are carried out by him privately (see paragraph 100 of the psychiatrist’s first report); there is no evidence that he has failed to care for either of the children in a relevant manner by reason of his participation in these activities. The Court notes the father’s statements to the Child Dispute Conference Family Consultant denying that during any period that he was spending time with the children, he would need to leave them unattended whilst going to view pornography and/or masturbate.
The psychiatrist did take a history from the father, inter-alia, of his viewing of adult pornography (albeit decreasing since the marriage), the event involving the mother’s sister’s underwear, and the psychiatrist was asked to assume, by reference to his supplementary report, that the father had uploaded the mother’s sisters photographs to the Internet. (Without making any definitive finding of fact at this interim hearing, the Court notes that it is quite arguable that the father admitted to the mother and the paternal grandfather that he did covertly photograph the mother’s sister and upload the photographs to the Internet; see the mother’s Affidavit of 27 July 2016 and the father’s Responses thereto, referred to previously in these reasons).
Having taken such history, and assuming such matters, the psychiatrist, being an independent joint expert psychiatrist with expertise in, inter-alia, sexual deviant disorders, being an active member of the Special Interest Group in Child and Adolescent Forensic Psychiatry, and being experienced in providing psychiatric reports and expert opinions to the Children’s Court and Family Court (see the psychiatrist’s curriculum vitae at page 11 of his first report), stated in his final report (being Exhibit C):
I continue to hold no significant concerns about the current and foreseeable mental state of the father as it related to parenting. He demonstrated appropriate and adequate parental capacity for the needs of the subject children, to put their needs above that of his own, including emotional and intellectual needs. He evidenced a good attitude towards being a parent and responsible father for the children.
Similar to my original report, there were no indications from the forensic psychiatric assessment of the father, or from review of prior and additional material provided, that any of the children were at any significant risk of being exposed to physical, emotional or sexual harm from spending unsupervised time with the father.
The Court notes that the psychiatrist had made certain treatment recommendations for the father in relation to his voyeuristic disorder, which he found to be of mild to moderate intensity. He formed the view that his GP could monitor this issue in bi-monthly reviews. He stated that if his voyeuristic behaviour persisted with ongoing concerns, then the father should obtain treatment from a forensic psychiatrist experienced in treating sexual deviant disorders. This Court is in a position to craft appropriate interim orders providing for the father to so attend upon his GP in accordance with the recommendation of the psychiatrist.
At this interim stage, taking a cautious approach, attaching some weight to the psychiatrist’s opinions (as indicated above, and as expressed in his reports), whilst noting that the opinions of the psychiatrist are yet to be tested in cross examination, and that to date the father has not yet spent any significant overnight time with the youngest child (nor overnight time with the eldest child for some significant time), the Court is of the view that, subject to the following protective mechanisms being ordered, there is no need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence whilst spending unsupervised time with the father; there will be no unacceptable risk to the children in spending such unsupervised time with the father in these circumstances.
The protective mechanisms that the court proposes are that the father complies with the psychiatrist’s treatment recommendations in relation to his voyeuristic disorder, the father is restrained from exposing the children to pornography and restraining him from accessing or viewing pornography during periods of time that the children are in his care (the court also refers to and would adopt the detailed pornography restraints proposed in exhibit 1 tendered on 15 November 2016 by the father’s solicitor), that a 0.05 alcohol consumption restraint be placed upon the father, and that the children spend time with the father during the daytime only and on a graduating basis.
The Court has considered all the submissions of the mother.
The Court notes that the parties’ joint expert psychiatrist expressly dealt with, as he was asked to do by the parties, whether the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. In this context, the psychiatrist considered the father’s viewing of pornography, together with the discrete incidents relating to voyeuristic behaviour of the father. The psychiatrist formed his opinions having made a diagnosis of voyeuristic disorder.
The parties did not instruct the psychiatrist to interview the children in the presence of the father; the parties had sought to commission the reports of the psychiatrist so that the psychiatrist could expressly consider, inter alia, whether or not the father’s sexual activities, including viewing adult pornography and voyeuristic behaviour posed any significant risk to the children while spending unsupervised time with the father.
This Court is satisfied, based on the material before the Court at this interim hearing that the psychiatrist was provided with a comprehensive factual history relating to the father’s historical viewing of adult pornography including his voyeuristic behaviours, including his past treatment, enabling him to provide his opinions.
The Court has considered the mother’s submissions in relation to her sister. The father submits that he has consistently denied any wrongdoing in relation to the sister (although the court notes its comments in these reasons as to the father’s alleged admissions to the paternal grandfather in the presence of the mother). At this interim hearing, as indicated previously in these reasons, the Court makes no finding of fact in relation to this disputed issue. In any event, the Court notes that the psychiatrist had assumed the father’s involvement in this disputed activity involving the mother’s sister and his ultimate opinion that the children were not relevantly at risk in the unsupervised care of the father.
Section 60CC(3) - Additional Considerations
(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
The children are of tender age and this additional consideration is not relevant.
(b) Nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to the above “meaningful relationship” primary consideration.
The children have positive relationships with members of the paternal extended family.
The mother lives with the children, with her mother and stepfather, her elder sister and her husband at (omitted). There is no suggestion in the evidence that the children do not enjoy positive relationships with these persons.
(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents have taken such opportunities to the best of their abilities.
3(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
Both parents would appear to have fulfilled their obligations to maintain the children.
3(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to the “meaningful relationship” primary consideration discussed above.
3(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
Under the consent interim parenting orders of 11 December 2015, the father has been meeting the costs of spending supervised time with children.
3(f) The capacity of each of the child’s parents; and 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
Subject to the Court’s discussion above under the “need to protect” primary consideration, both parents would appear to have such capacities.
3(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
The Court refers to its discussions above under the “need to protect” primary consideration and under the additional consideration subsection 60CC(3)(f).
The parties are in dispute as to whether the child X, following the parties facilitating an equal time arrangement in the first few months of 2014, had become “unsettled”. The mother asserts that during this arrangement this child was not sleeping well and was very unsettled at home. She was not eating at the right times or going to bed easily, according to the mother. The father asserts that this child was coping well during this time.
3(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Subject to the Court’s discussion above under the “need to protect” primary consideration, both parties attitude to the children and their responsibilities of parenthood would appear to have been sound.
3(j) Any family violence involving the child or a member of the child’s family.
The Court refers to its discussions above under the “need to protect” primary consideration, which include reference to the alleged incident involving the mother’s sister. The court has considered the competing submissions of the parties as to the mother’s contention that the alleged conduct of the father in relation to the mother’s sister amounted to family violence under the Act to which the children are continually exposed to; without proceeding to decide this disputed contention at this interim stage, the court has nevertheless taken into account the mother’s contention when formulating its views under the need to protect primary consideration discussed above.
3(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
Not applicable.
3(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.
This was an interim hearing and it is not possible to meaningfully consider this additional consideration.
3(m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental responsibility
The father seeks an order for equal shared parental responsibility in respect to the children. The mother seeks an order for sole parental responsibility. The mother told the Family Consultant that she could no longer trust the father and that their communication and cooperation was now extremely poor. The father confirmed that he and the mother currently had no capacity to communicate or cooperate. He said that he would like to work cooperatively with the mother in the future, for the sake of the children.
There is a not insignificant dispute between the parties as to the incident relating to the mother’s sister and which this court is unable to resolve at this interim stage; in these circumstances and pursuant to section 61 DA (3), it would not be appropriate for the presumption of equal shared parental responsibility to apply.
At this interim stage, noting the above matters, and that these young children remain in the primary care of the mother, the court is of the view that it would be in the best interests of the children to make an interim sole parental responsibility order in favour of the mother.
Summary
Evaluating the above discussed primary and additional considerations under section 60CC of the Act, at this interim hearing the Court is of the view that it will be in the children’s best interests to make interim orders that:
(1) All previous parenting orders be discharged.
(2) The mother have sole parental responsibility for the children X born (omitted) 2013 and Y born (omitted) 2014 (“the children”).
(3) The children shall spend time with the father as follows:
(a) From 28 January 2017 to 31 March 2017, each week on a Saturday or Sunday for a period of 4 hours between 9:00am and 5:00pm;
(b) From 1 April 2017 to 31 May 2017, each week on a Saturday or Sunday for a period of 5 hours between 9:00am and 5:00pm;
(c) From 1 June 2017 and thereafter, pending further order or agreement, each week on a Saturday or Sunday for a period of 6 hours between 9:00am and 5:00pm; and
(d) At any other or alternate times as agreed between the parties;
Provided that the father shall give the mother notice by text message or email, not less than 4 days prior of his intention to spend time with the children, as above.
(4) The father shall collect the children from the mother’s home at the commencement of any time to be spent with the children, as above, and the mother shall collect the children from the father’s home at the conclusion of such time.
(5) The father is prohibited from accessing or viewing pornography during periods of time that the children are in his care.
(6) The mother and father are to use their best endeavours to ensure that the children are not exposed to pornography, and they are to use their best endeavours to ensure that there is no pornography on computers or other electronic devices to which the children would have access to within each of their households, and they are to activate child lock anti-porn software on such devices when the children are in their respective care.
(7) Each party be restrained from consuming alcohol to excess of 0.05 in the 12 hours preceding contact and during any period of contact with the children.
(8) In addition to the times the children will spend with the father in accordance with these orders, in the event the children will not be spending time with the father in accordance with the orders set out above, the children will spend a period of 5 hours with the Father on:
(a) Christmas day,
(b) Each of children’s birthdays,
(c) Father’s day; and
(d) The father’s birthday,
between 8:00am and 7:00pm unless alternative times are agreed, and provided that the father gives the mother at least 7 days’ notice in writing of his intention to do so.
And for the purpose of this order the father will collect the children from the mother’s home at the commencement of such time, and the mother will collect the children from the father’s home at the conclusion of such time.
(9) The children are to communicate with their father by telephone on every Tuesday and Thursday between 6:30pm until 7:00pm to be facilitated by the mother telephoning the father’s landline or mobile telephone number and causing the children to take the telephone call with their father.
(10) The parents are each restrained by injunction from denigrating the other parent or members of the other parent’s family to the children or in the presence of the children or at all; and each parent is to remove the children from the presence of any third party denigrating the other parent or members of the other parent’s family.
(11) The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the children or in the presence of the children.
(12) The parents are each restrained by injunction from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
(13) The father shall, within 14 days, attend upon his usual General Practitioner (“GP”) and thereafter attend bi-monthly reviews with the GP, in relation to the voyeuristic disorder referred to by psychiatrist Dr J in his reports of 7 February 2016 and 23 May 2016.
(14) The father shall cause copies of the above psychiatric reports to be provided to his usual GP on the first attendance upon him/her pursuant to the above order. The father, attending upon his usual GP for such bi-monthly reviews, shall comply with any treatment recommendations of his usual GP in relation to the voyeuristic disorder, including attending upon any forensic psychiatrist experienced in treating sexual deviant disorders (such possible referral referred to in the above psychiatrist’s reports) that the GP may refer the father to for treatment.
The court will also make directions for the appointment of an independent children’s lawyer and related directions.
I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 20 January 2017
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