Pollard and Fallow

[2008] FamCA 1254

FAMILY COURT OF AUSTRALIA

POLLARD & FALLOW [2008] FamCA 1254

FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – supervised – equal shared parental responsibility

Family Law Act 1975 (Cth)

MOTHER: Ms Pollard

FATHER Mr Fallow

INTERVENER: Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Breck & Associates

FILE NUMBER: BRF 11752 of 1997

DATE DELIVERED: 16 September 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Loughnan JR

HEARING DATE: 16 September 2008

REPRESENTATION

COUNSEL FOR THE INTERVENER: Ms Boyle

SOLICITOR FOR THE INTERVENER: NSW Crown Solicitor’s Office

SOLICITOR FOR THE MOTHER: Tonkin Drysdale Partners

SOLICITOR FOR THE FATHER: Legal Aid Commission

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Breck & Associates

Orders

1. Orders are made in terms of the Application of the Director General of the Department of Community Services filed 15 September 2008, as varied by the Minute of Orders marked Exhibit 1 and as varied by reasons for judgment provided by Judicial Registrar Loughnan.

1. The Court requested that a Minute be provided to Judicial Registrar Loughnan’s chambers as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Pollard & Fallow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: BRF 11752 of 1997

MS POLLARD

Mother

And

MR POLLARD

Father

DEPARTMENT OF COMMUNITY SERVICES

Intervener

REASONS FOR JUDGMENT

1. These are proceedings really in relation to one child, K, born in May 1993. She is 15 years of age.  She has two brothers, R who is 17 and J 13.  The proceedings involve J too to some extent.  The mother and father, I understand, are 37, coming up for 38 and 46 years of age. They separated in 1996.

2. Some orders were made in this Court in January 2007 providing for the children to live with the mother and have time with the father for half the school holidays and twice during school terms in a rotation between supervisors living in Sydney and the north coast of New South Wales.  That supervision was needed because the husband was convicted in relation to child pornography. 

3. The children went to the father at the end of last year, K did not come back and the proceedings are underway.  The Department is a party to the proceedings.  It has proposed some orders.  The orders are consented to on behalf of the father, the children and not opposed by the mother, except in relation to three issues.

4. One of the issues is not being pressed which related to the boys travelling to the north coast for the purpose of weekends mid-term. 

5. So that leaves two issues to be determined.  In relation to the mid-term contact or visits supervised by the relatives in Sydney, the proposal is according to the original orders that the handover be at S and the mother would like that to continue. The father refers to his relatives' request that the handover occur at P because they say they cannot service the S handover.

6. The trip involves the two boys and if the older boy does not travel, J and the mother.  At the end of the day it seems to me that for the time being we are limited to these particular supervisors.  We are talking about something that might only happen on one or two occasions, hopefully, before the matter is resolved.  I will order that the handover be at P.

7. The other issue is a bit more difficult.  All of the parties, except the mother, would like the time in the north coast between the father and the child K to be unrestricted.  In practise it has been on weekends and the mother says that that is a nonsense in circumstances where the child is not aware of the risks for her, the supervisors are not vigilant in relation to the risks because they do not think there are any risks and therefore it makes something of a mockery of the child protection arrangements if this is an unfettered exercise.

8. As I said during the course of submissions, I have some sympathy with that.  The father addresses this issue with this: 

   "With regard to my own treatment regarding my criminal proceedings I've continued with the following:  I continued to receive counselling which is usually twice a month, my counsellor is [Mr M], a copy of his report is annexed and marked with an identification; reporting to the police when I have unsupervised contact with the children; I notify the police before any contact visits with my children; I notify the police when [K] returned to my care on 3 February.  As a result of my notification on 3 February, my reporting officer contacted DOCS, I've been liaising with them ever since.  [Ms F] of […] DOCS has been in constant contact with myself and [K] since this time.  There have been no Departmental proceedings regarding [K].  Regarding [K], she's had the availability of counselling, she's attended sessions, counselling has stopped.  I would ask that the Court no longer require any supervision."

9. and so on.  He attaches this report.  So by saying that he does not think that there needs to be any supervision - he says there is no problem.

10. We have Mr M who has a Bachelor of Social Science with Honours.  He has been counselling the husband for nearly three years.  He has a Degree in Social Science with one of his Majors being Counselling and he has been counselling on a voluntary basis for four years.  He says the father stated seeing him at the instigation of a Psychiatrist on the north coast who recommended counselling as a means to combat a depressed state that resulted from the breakdown of his marriage, his subsequent conviction of possessing images of pornography which in turn resulted in his alienation from his children.

11. He goes on to say that the sentence which resulted in restricted access has been a major contributor to the father's ongoing depression.

12. At the father’s request he made inquiries if a Sex Offender's course run in Coffs Harbour was offered locally:

    "[the father] asked if I was willing to offer such a course.  I informed [the father] that the provision of such a course was beyond my expertise."

13. He says that he and the father have looked at sexual abuse through the eyes of a victim:

    "We've discussed situations that are likely to trigger child abuse, what a potential or actual abuser should try and do to alleviate or prevent these situations becoming a reality.  In [the father’s] case he has formulated a plan of action to ensure that he does not receive unsolicited emails containing child pornography by changing his email address and giving it to people he knows and trusts such as having firewalls installed on his computer that block unsolicited messages.  [The father] will also diarise any email that happens to infiltrate his systems, however to my knowledge such a scenario has not occurred.  It is my considered judgment that [the father] is a fine, decent man with a strong sense of morality who poses no threat either to his children or those of any other person.  In fact I would have no hesitation in trusting any of my three grandchildren to his care should the need arose."

14. Ms L, in her report flags research in relation to tendency, linking pornography with forms of child abuse. I do not think, for the purposes of today that is matters much whether you deal with this on the basis of there is objectively concerning background material which suggests that there is a risk because of something that has happened in the past or a type of illness affected the father in the past and treatment is needed. 

15. In 2007 the Court put in place arrangements which provided for fully supervised time.  The preconditions for revisiting that decision have not been met. There is a 15 year old child who has not demonstrated any self-protecting mechanisms.  There is no suggestion that she knows what to be vigilant about.   The supervisors do not think there is a problem.  One of the supervisors made a comment to Ms L that made it sound like the father was more of an obsessive/compulsive person who needed to store information. 

16. There is a very significant issue here and it should not be left up to a 15 year old child who is not capable of self-protection to determine how things run. I should say that there is no more generous thing than people in the position of the father's relatives who step in and provide supervision. They have my absolute admiration. It is the most natural thing in the world that they would minimise what has happened, that they would have no concerns about anything that the father would do. Nevertheless the facts are objectively concerning.

17. It might be that they are all right and there is now no risk to the child from the father in relation to the crime to which he pleaded guilty. That is possible but it needs to be demonstrated.

18. Notwithstanding the attitude of the Department, the Independent Children's Lawyer and the father, I think limits need to be remain on the father's time with K.

19. The detail of the limitation does not matter much. I talked about it being once a month.  We are balancing risks here and perhaps every second weekend is a sensible compromise.  Even though what had been happening was only on the weekends, under the order that is proposed by the father, it could be 24 hours a day, every day. It is a sophisticated thing to draw a link between the father’s child pornography offences and the risks to the child. Ms L said the research reveals there can be links. How would a 15 year old child be aware of the cues for that behaviour so that she could protect herself?

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate: 

Date: