Sadek and Sadek (No. 2)

[2018] FamCA 957

FAMILY COURT OF AUSTRALIA

SADEK & SADEK (NO. 2) [2018] FamCA 957

FAMILY LAW – CHILDREN – Interim proceedings – Where the father is spending supervised time with the children in accordance with interim orders – Where there are allegations that the father views images and videos described as depicting bestiality, child exploitative material and incest – Where the father seeks unsupervised time and the mother seeks that the time be supervised by a private enterprise – Where it is not possible to test the evidence at this interim stage – Where there is no clear evidence that would warrant a change to the orders in a particular direction.

APPLICANT: Ms Sadek

RESPONDENT: Mr Sadek

INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

FILE NUMBER: SYC 8550 of 2016

DATE DELIVERED: 5 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 5 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: The Norton Law Group

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Walter & Elliott Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

Orders

1. The proceedings be expedited and request that the matter be allocated to a trial judge as soon as practicable.

2. By consent, within seven days of the date of the making of this Order that the parties provide in writing to the solicitors for the other the following:

   (a)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify each mobile telephone service used by the other party in the past two (2) years.

   (b)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify the service provider for each mobile number which has been used by the other party the last two (2) years.

   (c)Details of all other electronic communication devices (“ECD”) within the possession or control of that party during the past two (2) years.

   (d)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify each service provider used by that party to connect to a communications network through an ECD during the past two (2) years.

   (e)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify each account number, account holder or electronic address used by that party to connect to a communications network through an ECD during the past two (2) years.

   (f)Details of each computer, external modem, network gateway or hub within each of the parties’ possession or control during the past two (2) years capable of connecting to the internet.

   (g)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify the IP address for each computer, external modem, network gateway or hub through which that party has accessed the internet during the past two (2) years.

   (h)All information and documents within each of the parties’ knowledge, possession or control that would assist the other party to identify each internet service provider through which that party has accessed the internet during the past two (2) years.

3. Otherwise, unless the parties agree to the contrary in writing, no amendments are made to the orders made by this Court on 16 February 2018.

4. Leave is granted in the first instance to the father’s solicitor to have access to subpoena material from Company H for a period of seven days and unless there is an objection notified in writing to the solicitors for the mother and the Independent Children’s Lawyer thereafter the Independent Children’s Lawyer and the solicitors for the mother can have access to that same material.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadek & Sadek (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8550 of 2016

Ms Sadek

Applicant

And

Mr Sadek

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings in relation to three children, Raymond, Theresa and Isabella, who are eight, six and five years of age.  The mother and father are 33 and 35 years of age.  They started to live together and married in 2008 and separated on 19 December 2016.  There were orders made by agreement in November 2017 for overnight time, unsupervised, on alternate weekends and some holiday time with the father.  The children were to otherwise live with the mother.  Thereafter there were allegations made in relation to the father accessing inappropriate material.

2. Ultimately, that led to orders made on 16 February 2018 by Austin J discharging all of the orders, ordering equal shared parental responsibility, that the children live with the mother and the children spend time with the father on Sundays from 9.00 am to 5.00 pm and Tuesdays from 4.00 pm to 7.00 pm.  The oldest boy was also to have some time, associated with a sporting activity on a Thursday.  The father’s time was to be supervised by either of his parents, and orders were made for unsupervised time with the father at Christmas from 12.00 pm Christmas Eve until 12.00 pm Christmas Day.

3. The father commenced attending on a Dr C on 22 November 2017 and the orders of 16 February 2018 noted that he was to attend thereafter as recommended by the doctor.  Injunctions were also granted.  In reasons for judgment his Honour explained that a single expert had recently reported that the father had probably used his computer to search and view images and videos described as depicting child exploitative material and incest.  His Honour said that the mother was previously aware of the father’s interest in bestiality.  That did not cause her to contend that the children needed supervision, and his Honour noted that, indeed, the father said that the mother viewed that material with him as well.

4. The mother contended before his Honour that the father’s interest in child exploitative material and incest was quite different (to him viewing bestiality images) and caused her to worry about the risk of harm the father posed to the children by his subjection or exposure of them to sexual abuse.  The father did not concede he posed a risk but he acknowledge the viability (perhaps validity) of the mother’s concerns and conceded for the time being, that his time should be supervised to allay her subjective fear or, indeed, to allay any objective concerns.

5. And there was a level of agreement between the parties and the Independent Children’s Lawyer (“ICL”) to an amendment of the November 2017 orders to introduce supervision, albeit that the mother wanted a professional supervisor and the father and the ICL maintained that the paternal family members would suffice.  In the reasons for judgment his Honour identified his task in order to construct orders in the best interests of the children and the scheme of logic from a decision about equal shared parental responsibility, consideration of equal time, if that was not ordered, substantial and significant time, and if that was not ordered, an order in the best interests of the children.  The reasons canvas the authorities that deal with the legislative pathway that Courts follow in these circumstances.  Importantly, his Honour found a concession about a meaningful relationship between the children and both parents, and his Honour canvassed the arguments in relation to the other primary consideration - the risks to which the children were exposed.

6. Remembering that his Honour was presented with an agreement about a level of supervision, his Honour noted that Dr E had recommended that supervision by members of the father’s family should be adequate, and his Honour, indeed, was satisfied about that.  He did not extend the list of supervisors to the paternal uncle (which is an application before me as a fall‑back position) because the paternal uncle was not on evidence at that stage.  His Honour indicated why he did not act on the presumptions in relation to the consideration of equal time and substantial and significant time and ultimately decided on the orders that I have identified.

7. Some things have happened since then.  The father has attended upon Dr C and he has effectively given him a clean bill of health based on what he has read and his interactions over four appointments with the father.  The father has twice retained the children outside the periods specified in the orders.  In that regard, he points to problems that occurred with the children.  On one occasion a child was struck when in the care of a friend of the mother, and according to the father on that occasion and on another occasion, the father was not given an immediate and satisfactory answer, or indeed any answer to his complaint.  And so he withheld them.

8. There has not been any evidence that any of the children have been exposed to material or behaviour associated with exploitative material or incest.  The parties say that the children report inconsistent things to them.  The father says that the children say they want to spend more time with him.  The mother says that the children say to her that they are not being supervised or not being adequately supervised.  The father wants the requirement for supervision lifted.  He says, “what more can I do?  There is no evidence that I’ve accessed particular material depicting incest.”  Obviously, he does not have a concern with any of the material that he has accessed.

9. He says that there is an artificiality about his interaction with the children because of the limits placed on the arrangements that he can have with the children, while supervised.  Toileting arrangements and when somebody wants a drink or whatever – cause problems and the obligations of supervision cause terrible trouble for them and interfere with their lives.  The supervision also causes a fairly artificial interaction with the children.  He says he is not able to engage in some things, citing, for example, bicycle riding, that he would like to engage with the children.

10. The mother says the father has withheld the children twice and the children say they are not being supervised.  Therefore, she presses her original application, for a commercial operative to undertake the supervision and thereby provide certainty as far as the father goes and the capacity for a record to be kept about the interaction.  She says the fact that the therapist has given the father a clean bill of health is not satisfactory because his information came from the father himself and he does not think he has a problem in any event.  The mother says that the therapist is not a single expert in relation to the objective concerns.

11. These are interlocutory proceedings.  I am not allowed to make a finding of fact on a disputed issue without evidence that clearly supports one version of events or excludes another.  I cannot exclude the possibility that the children have said what the parties say they have said to them and that those statements are true.  It is dangerous making interim orders for that very reason.  You cannot get to the bottom of anything.  You have a series of allegations, and the background facts are objectively concerning.  It might be that the parties comported themselves in a particular way during the marriage.  It might be that it was the father rather than the mother comporting himself in that way.

12. As to an area of interest (being bestiality) that of itself is a matter of concern.  Parents might think that was a suitable thing for their own pursuits.  As children get older, it becomes very difficult to hide things from children.  The Court stands in the shoes of the community to some extent and rather than trying to replicate what the parties had felt was appropriate in the past, judges are put in a position of being nervous on behalf of children.  There are many children in our community who have had no exposure to bestiality.  There would be a good number of children who do not have any exposure, even on a fantasy basis, to child exploitative material, and there are a lot of children that do not have any contact with incest.  For the duration of this Court’s involvement with the children, we would want those same things for these children.

13. To the extent that the parents thought some of those pursuits were acceptable suggests that their judgment about things or at least the father’s judgment might have been out of step to some extent.  The fact that his judgment is a bit out of step might suggest that he is not the best judge as to the sort of supervision that would be appropriate. 

14. There is no suggestion that the children do not have a good relationship with each of their parents.  It might not be as free as it could be.  It might not be as comfortable as it could be.  It might not currently allow them to go bike riding with their father.  However, there will be no threat to the father’s relationship with any of these children if they cannot go bike riding together.

15. The critical thing is that they have a loving contact with him and that they see him.  Children are likely to think that some of this is their fault.  To the extent that they are restricted from seeing their father, they might be worried about that and think that they are responsible.  Therefore we need them to keep seeing him, to see that he is okay and to have their relationship reinforced.  To the extent that the supervised arrangement is inconvenient for the children, for the parents and for the grandparents, that is unfortunate.  The greater good is achieved if we provide some protection. 

16. At final trial, a Judge will be in position to have the therapist cross-examined, the single expert, Dr E, cross-examined, Mr F cross-examined, and to tease through their evidence.  After that the parties might agree or the Court might be willing to free up the arrangements with the father.  That would be likely, because it is unusual for a Court to keep in place supervised arrangements indefinitely.  As the father said in his material, it becomes awkward. 

17. There are some further concerns.  It is obviously a concern that the father who was having only supervised time, retained the children.  The explanation given in relation to one of the assaults on a child, as I said on the last occasion, was not an explanation out of all proportion to appropriate care of a child.  I think the situation was that one of the children was undoing the seatbelt of another child while in a moving vehicle.  As I said on the last occasion, although it is not something that you set out to do, children are sometimes hurt in the cause of their protection.  A child about to step onto a railway line might be pushed, causing bruising, and so on.  The trouble is that the parties do not trust each other and that leads to unfortunate interpretations of conduct. 

18. There is nothing wrong with the suggestion of a commercial arrangement for supervising the father’s time but I gather the father does not want to pay for it.  The mother does not have the funds to pay for that unless the house is sold.  There is no evidence that the house can be sold to generate any significant amount of money.  Therefore that is a matter perhaps for another day.  I am happy to leave the orders on the basis that the supervision could be by a commercial enterprise.  But that is not going to be of any assistance to us today. 

19. As to adding Uncle J, he has filed an affidavit which was not available before Austin J, but he says that he does not believe that there is anything to be vigilant about, in relation to his brother.  That means that he is not an ideal person, with no disrespect to him.  I should say, it is a loving thing that relatives would offer to step into this role.  It puts them in a terrible position.  These children are lucky to have grandparents who are willing to put themselves out to provide supervision. 

20. I am going to leave his Honour’s orders in place.  The Court needs to be confident that any change to the current orders will be better than the situation under those orders.  And in circumstances where I am in the same position that his Honour was in, with no way of testing the evidence, including testing expert evidence – it would be foolish to make a change when there is no clear evidence that would warrant a change in a particular direction.

21. The parties have agreed to some orders, mutual orders in relation to discovery and production.  They agree that the matter should be expedited.  I think that is a good idea.  It is not ideal that the children be supervised and the parents are worrying away at this, causing cost and stress for themselves and the children.  So I will expedite the matter. 

22. That said, one of the judges of this registry retired this week.  A few years ago there were seven trial judges in Sydney.  We will soon have three.  That means the rate at which cases are heard and determined is significantly slowed.  Virtually the only cases that we are hearing are expedited cases. 

23. Otherwise, unless the parties agree to the contrary in writing, I make no amendments to the orders made by this Court on 16 February 2018.  That includes the Christmas order.  His Honour thought about that, and arguably had more concerns on the day he made that order, than I do now.  The orders deals with a finite period over the holiday season.  As I have said, I have to have a reason for making a different order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 5 November 2018.

Associate: 

Date:  20 November 2018