SAFIR & SAFIR

[2016] FamCAFC 3

FAMILY COURT OF AUSTRALIA

SAFIR & SAFIR [2016] FamCAFC 3

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders – Where orders made for the children to spend time with the father during the day but not overnight – Finding that the children were exposed to an unacceptable risk of harm if they spent time with the father overnight – Assessment of magnitude of the risk of exposure – Where trial judge found “a risk” meant there was an unacceptable risk – Assessment of risk of harm said to result from risk of exposure – Where finding of unacceptable risk of harm at night is flawed and was not available on the evidence – Appeal allowed – Where it is appropriate that the court re-exercise the discretion – Order that pending further order the children spend time with the father including overnight.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on an error of law – Costs certificates ordered pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth): ss 60CC(2)(a), (2)(b), (2A)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 9

APPELLANT: Mr Safir

RESPONDENT: Ms Safir

FILE NUMBER: PAC 559 of 2015

APPEAL NUMBER: EA 140 of 2015

DATE DELIVERED: 28 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 2 December 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 July 2015

LOWER COURT MNC: [2015] FCCA 2079

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Barnett

SOLICITOR FOR THE APPELLANT: Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gilles

SOLICITOR FOR THE RESPONDENT: Shorehills Legal Solicitors

Orders

1. The appeal be allowed.

2. Set aside Orders 2, 3(c), 3(d) and 3(e) of the orders dated 23 July 2015.

Pending further order

1. That the children, A Safir born on … 2005 and B Safir born on … 2009 (“the children”) spend time with the father as follows:

   (a)during school term each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday (commencing on the first weekend when pursuant to the orders dated 23 July 2015 the children were due to spend time with the father);

   (b)each alternate Thursday from after school until before school on the following Friday;

   (c)from 10.00 am Good Friday 25 March 2016 until 5.00 pm Easter Saturday;

   (d)during school holidays each week from 9.00 am Sunday until 9.00 am Wednesday; and

   (e)at such other times as the parties agree.

2. There be no order as to costs.

3. That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

4. The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 140 of 2015
File Number: PAC 559 of 2015

Mr Safir

Appellant

And

Ms Safir

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed on 31 August 2015 Mr Safir (“the father”) appeals against interim parenting orders made by Judge Donald on 23 July 2015.  The orders concern the parties’ children, A, who is ten and B, who is six (“the children”).  

2. In broad terms, the orders provide that the children live with the mother and spend time with the father on three occasions each fortnight during school term and on a pattern of consecutive days during school holidays but not overnight. Orders were also made for the elder child to continue counselling with a psychologist and restraining the father from exposing the children to pornography.  The appeal is solely concerned with the orders concerning the children’s time with the father.

3. Central to the appeal is the assessment of the magnitude of risk of harm, if the children spend time with the father overnight and they were to see pornography and/or their father masturbating.  The primary judge was satisfied the risk of harm was unacceptable at night (but not during the day) and thus he refused the father’s application that the children spend time with him overnight.  There is no dispute that the father has long enjoyed watching television shows (on the family television and his tablet) that contain sex scenes.  At least in relation to the television shows it should be inferred that the shows have been approved by censoring authorities for public viewing.  The material viewed on his electronic devices is similar and thus although the term pornography would seem inappropriate it is the term that has been used in this case to describe the type of material the father watches.  Nor is there any dispute that shortly afterwards the father sometimes masturbates in a bathroom or his bedroom.  It is also common ground that the father has never behaved this way in the presence of the children.  In other words, there is no suggestion that during the years when the parties lived together as a family or in the more than twelve months following separation, that the children ever saw pornography, were aware their father watched it, or had seen him masturbate.  

4. Counsel for the father argued that within any family unit there will be shared adult and child activities and also activities that are suitable for adults but to which children should not be exposed.  Hence families design arrangements which enable adults to enjoy adult pastimes in a manner which does not intrude on the children or put them at risk of harm.  It is argued that on a proper consideration of the evidence it was established that the father was careful to ensure the children were not exposed to his adult activities and hence the restriction on overnight time is plainly wrong.  In lieu of the operative orders, the father seeks that the children spend each alternate weekend (three nights) and alternate Thursdays (overnight) during school term with him and for slightly less than half the school holidays.

5. Ms Safir is the children’s mother and the respondent to this appeal (“the mother”).  The mother resists the appeal and seeks to uphold the orders of the primary judge. 

6. Counsel for the mother agreed that the primary judge’s determination that there is an unacceptable risk to the children of overseeing pornography or their father masturbating is the lynch-pin of his Honour’s decision concerning the children’s time with the father.  It is submitted that the Full Court would afford a strong presumption to the correctness of the decision and that the outcome accords with the very wide discretion with which his Honour was invested.  It was argued there was sufficient evidence for the primary judge to come to the view that the risk was greater at night than during the day and for his Honour to categorise the risk as being unacceptable. 

7. In the event error is established, counsel for the mother argued that the Court should remake orders as made by the primary judge pending a remitted rehearing which should not take place until after May 2016.  The significance of May 2016 is that Dr O has been appointed to report on the family in relation to which appointments have been scheduled for May 2016.  However, if the Court was not so inclined, neither party sought to adduce further evidence on a re-exercise and counsel for both parties relied on the submissions made at first instance and on appeal as to the orders that might be made on a

   
   

   re-exercise.

Relevant background

1. The parties were born overseas. The father was born in 1972 and is currently 43 years of age.  The mother was born in 1973 and is currently 42 years of age. 

2. The parties commenced cohabitation upon their marriage in 2001.  In late 2002 they migrated to Australia.

3. The parties’ daughter A was born in 2005.

4. In 2009 the parties’ son B was born.

5. The parties separated under one roof in early 2014. The mother moved out of the family home with the children in April 2014.

6. By way of an informal agreement, arrangements were put in place for the children to spend time with the father as follows:

   ·every Wednesday from 3.00 pm to 8.30 pm;

   ·each alternate Saturday from 8.30 am to 4.30 pm; and

   ·each alternate Sunday from 10.00 am to 4.00 pm.

7. On a few occasions, the children did not spend time with the father as planned and there was a period of approximately four weeks from 5 September 2014 when (with the father’s consent) the mother took the children to visit her family overseas.  The mother’s evidence is that, by then, the parties’ daughter was saying she felt the father was not interested in her, she felt ostracized at his home and, on occasion she was tearful about seeing him.  Thus, albeit without the father’s knowledge, the mother made arrangements for their daughter to see a psychologist.  The psychologist asked the parties to meet with her, which they did in late October 2014.

8. In November 2014, an attempt was made by the father to renegotiate his time with the children.  Not without some difficulty, an interim agreement was reached for the children to spend time with the father:

   ·every Tuesday from 5.00 pm to 8.00 pm;

   ·every Thursday from 5.00 pm to 8.00 pm; and

   ·each alternate Saturday and Sunday from 11.00 am to 5.30 pm.

9. In January 2015, the parties and elder child attended on the child’s psychologist.

10. The father commenced proceedings for the settlement of property and parenting orders in the Federal Circuit Court on 10 February 2015.  The mother filed her Response on 16 March 2015.

11. The proceedings came before the Court on 17 March 2015, on which occasion interim orders were made pending an interim hearing.  These orders were not included in the appeal documents and, by agreement, they were received as further evidence in the appeal.  In broad terms, the orders provided that the children:

    ·Live with the mother;

    ·Spend time with the father:

    (a)each Thursday after school;

    (b)from 10.00 am to 5.00 am each alternate Saturday and Sunday; and

    (c)for three consecutive days (not overnight) in the forthcoming Easter school holidays.

12. In addition to a variety of machinery orders and other injunctions, the following orders were made by consent:

    12. Without admissions the Father is hereby restrained by injunction from exposing the children to or permitting the children to view any inappropriate and or pornographic material on a mobile, ipad, tablet, computer, TV or any other electronic devices at any time whatsoever.

    13. Without admissions the Father is hereby restrained by injunction from showing or exposing the children to any inappropriate or pornographic material in any form whatsoever and not limited to any electronic devices, mobile telephones, ipads, computers, or paper material at any time whatsoever.

13. The parenting proceedings were adjourned to 23 July 2015 for an interim hearing in relation to which the parties were ordered to attend a Child Dispute Conference with a family consultant on 6 May 2015.  This they did and in relation to the topic of pornography, the family consultant reported the parties’ discussion as set out below:

    [The mother] stated that [the father] exposed the children inappropriate videos on his telephone including a cartoon of a nurse with an open blouse and breasts exposed and a clip from the movie ‘Norbit’ where the main character is in a bikini.  [The mother] raised concerns that [the father] watched pornographic material and that the children might walk in on him watching this.

    [The mother] stated that she did not want the children to watch anything that is rated beyond their ages.  She said that she had concerns about them watching material involving superheros as it exposed the children to violence.

    [The father] denied exposing the children to inappropriate material and said that [the mother’s] idea of inappropriate material was different to his.  He confirmed that he had shown the children a clip from the movie ‘Norbit’ and [the child B] liked watching cartoons such as ‘Ben Ten’ and ‘Iron Man’ and he watched them with him.

    [The mother] said that she did not want the children to spend overnight time with [the father] because he was insensitive to their needs and did not respond to them when they were unwell as he did not believe in “western medicine”.  She added that he had a pre-occupation with sexual matters like commenting on other women’s bodies, and she worried he would expose the children to this.

    (Child Dispute Conference Memorandum, 14 May 2015, p 2)

14. The children were due to spend time with the father on 17 May 2015.  However, the older child was unwell and the mother decided neither child should go.  In relation to the younger child, her stance was unacceptable to the father and an argument developed between the adults when the father arrived to collect the younger child.  The mother alleged that the father pushed her.  The father denied the mother’s allegation and said she hit him.  Police were called but they took no further action.  It would appear that the mother reconsidered her position and thus the father had makeup time for the time he missed on 17 May 2015.

15. The primary judge heard and determined the interim applications on 23 July 2015.  Both parties were represented and, as is common place the hearing was undertaken without cross-examination.  The mother proposed that the interim orders made on 17 March 2015 be continued.  The father’s proposal was that during school term, the children spend time with him:

    ·each alternate weekend from after school Friday until before school the following Monday; and

    ·each alternate Thursday from after school until before school the next day.

16. In other words, that during school term in each fortnight the children live with the mother 10 nights and with him for four nights.  It was his proposal that during school holidays, the children spend time with him from 9.00 am Sunday until 9.00 am Wednesday every week.

17. The father’s proposed orders did not include orders or undertakings equivalent to Orders 12 and 13 of the consent orders made on 17 March 2015.  However, during oral addresses, the solicitor for the father made the point  there was no evidence the children had been exposed to pornography (or masturbation) and said that notwithstanding there was no basis on which the Court would impose restrictions on the father’s time with the children:

    … [The father] is willing to make any undertakings in that regard that is necessary.  Your Honour, this is not a man who doesn’t follow orders of the court.  There’s no evidence to suggest that he’s not someone who will do whatever your Honour directs, and I – my submissions are that this is not an issue that would prevent your Honour from extending extensive unsupervised daytime contact to overnight.

    (Transcript of proceedings, 23 July 2015, p 8, lines 19-24)

18. There was also an issue before his Honour about whether an interim order for equal shared parental responsibility was appropriate (as sought by the father) or, as the mother proposed, there be no order as to parental responsibility.  The primary judge was satisfied that an order for equal shared parental responsibility was appropriate, albeit, by omission, that order was not made.  Consequently, on the appeal hearing, it was agreed that pursuant to the slip rule, an order which gave effect to his Honour’s reasons in that regard should be made. 

19. Thus, on 2 December 2015, the following order was made:

    1.The father and mother shall have equal shared parental responsibility for [the children].

    …

20. The hearing before the primary judge was completed at 3.05 pm and at 4.00 pm his Honour gave ex tempore reasons for judgment and made orders (including those under appeal).

Grounds of Appeal

1. The Amended Notice of Appeal contained seven grounds of challenge.  However, those grounds were reformulated in counsel for the appellant’s Summary of Argument as follows:

   1.His Honour erred in the exercise of his discretion in finding that the father represented an unacceptable risk of harm to the children (ground 3);

   2.His Honour failed to give adequate reasons (grounds 2 and 4); and

   3.His Honour erred in not correctly applying the relevant statutory framework (grounds 6 and 7).

2. During the course of oral submissions grounds 6 and 7 were abandoned.

Unacceptable risk of harm

1. By ground 3 the father challenged his Honour’s finding there existed an unacceptable risk of harm to the children if they were to spend time with the father overnight.  It is argued that his Honour needed to be clear what the risk of harm to the children is and to consider whether steps might be taken so that the risk could be lessened to something less than unacceptable (for example, by undertakings). Although counsel for the father initially contended that his Honour’s reasons did not disclose the nature of the risk to the children, during oral addresses counsel agreed that the risk which concerned his Honour was the risk of the children coming across pornography, coming across the father when he was watching pornography or masturbating and the harm was the potential effect of exposure. This concession was properly made and underpins the discussion which follows.  It also needs to be understood that it is agreed that the children are not exposed to an unacceptable risk of harm during the day.

2. So as to give context to this challenge, it is appropriate first to set out his Honour’s findings and rationale for this decision to refuse the father’s application for overnight time.  His Honour determined:

   ·the parties should have equal shared parental responsibility;

   ·there is benefit to the children in having a meaningful relationship with both parents;

   ·the mother has been the children’s primary carer and has an appropriate relationship with them;

   ·based on the mother’s evidence, the father predominantly watched pornography and masturbated at night;

   ·the pornography watched was not illegal;

   ·the Court was not concerned with the father’s behaviour per se “but rather the risk to the children of being impacted by that behaviour”;

   ·notwithstanding the multiplicity of allegations made by the mother said to impugn the father’s parenting capacity, the children should have as much time as possible with the father but in circumstances where “that unacceptable risk is not present”;

   ·reference to “that unacceptable risk” is to the effect of exposure to pornography or witnessing the father masturbate;

   ·his Honour affirmed injunctions which restrained the father from exposing the children to any inappropriate or pornographic material;

   ·the proceedings would be determined by reference to the two primary considerations (s 60CC(2)(a) and (b) of the Family Law Act 1975 (Cth) (“the Act”)) in relation to which in accordance with s 60CC(2A) his Honour placed greater weight on the risk referred to in s 60CC(2)(b);

   ·if the children stayed with the father overnight there must a risk that the children would come across that [pornography or father masturbating] and that risk is unacceptable.

1. The first aspect of this challenge concerns his Honour’s view there was an unacceptable risk the children may be exposed to pornography or their father masturbating.  Counsel for the father analysed the mother’s evidence thus:

   22.It is submitted that the finding of unacceptable risk of harm during the night is unreasonable in circumstances where the mother’s evidence taken at its highest was:

   1.The specific examples given by the mother regarding the father’s use of pornography since the birth of the children is that the father is in the bathroom (see M affidavit at [34], [35], [36], [38], [41]);

   2.The specific examples given since 2012 indicate the father is watching an iPad (see M affidavit at [36], [38], [41]), the exhibit R3 supports the assertion of the use of an iPad;

   3.The mother refers to the father wearing headphones (see M affidavit at [36]);

   4.The mother refers to opening the bathroom door, indicating the door was closed (see M affidavit at [36]),

   5.The mother does not complain that the father watched pornography in a public space although she complains that on 26/12/2012 the father was watching pornography in the master bedroom ensuite bathroom during the day (see M affidavit at [38]).

   (Father’s Summary of Argument filed 13 November 2015, p 4)

2. This summary is accurate to a degree but does not, as counsel for the father suggests, take the mother’s evidence at its highest.  Rather, from [16] – [41] inclusive of his Honour’s reasons for judgment he paraphrases what his Honour clearly views as the critical evidence given by the mother about pornography and masturbation.  In so doing, his Honour specifically refers to [31], [33], [35], [36], [38], [39], [40] and [41] of the mother’s affidavit sworn on 11 July 2015.  Rather than paraphrase, it is helpful to set out those paragraphs:

   31.There were many times I witnessed [the father’s] sexual addictions in the household and raised my concerns with him and set out a few of those incidents.

   (a)On or about 2006 one evening, I saw [the father] viewing pictures of naked women on his email.  We had the following conversation:  I said “What is this that you are watching?” [The father]: “I receive emails from my friends with pictures of naked women” “My friends and I exchange these emails as we like it and men do such things” “I get excited to see these pictures”  I said: “I don’t find that normal.  How would you feel if I saw pictures of naked men?”  [The father] did not respond.  I said: “Please stop because I am not in favour of it”  I walked away.  I don’t know if he continued with his viewing.

   …

   33.After [A]’s birth [the father] began coming to bed really late at night.  Many times I woke up in the middle of the night to find [the father] still watching TV.  He watched Chinese and Korean programmes showing naked women and men having sex.  I often got really upset with him and asked him to stop and come to bed.  But he continued to watch the shows.

   …

   35.[The father] continued his routine by watching the late shows or viewing his material on his ipad and going to the bathroom to sexually release himself despite my objections.  When the children were a little older, I said: “[…] what if the children wake up and see the shows or you?  [The father] just shrugged off my concerns.

   36.On or about November 2012 late at night, I woke up and didn’t see [the father] in bed.  I saw the common bathroom light on so I went to the bathroom and opened the door.  I found [the father] was sitting on the toilet with his IPAD and ear plugs.  He was fiddling with his erect penis.  [The father] did not look happy to see me.  I asked “[…] what are you doing?”  He brushed me off and said: “Nothing go to bed.  Go and sleep.”  He was trying to hide the picture on his IPAD.  I looked at his IPAD and he was watching pornography.  I was really upset and didn’t know how to react.  I went to bed and [the father] was in the toilet for some time after that.

   …

   38.About 26 December 2012 late lunchtime, I was preparing a meal to take to a friend’s house for a party.  I had asked [the father] to look after the children while I was cooking.  [The children] were in their pyjamas playing and running around in the living room and kitchen.  I called [the father] a couple of times from the kitchen and asked him to help me get the children ready as it was taking me longer to cook than I expected.  I got no response from [the father].  I walked towards the room calling him with no response.  I went into our bedroom and entered the ensuite bathroom.  [The father] was sitting on the toilet, with his IPAD and fiddling his erect penis.  I said “What are you doing?”  [The father] replied:  “I am watching porn”

   39.I was shocked and angry and said:  “At this time of the day?  The children are at home.  I am cooking and need help with the children.  You are only concerned about your sexual pleasures”  [The father] replied:  “I enjoy watching porn and what’s the hurry?”  I said: “Get out and start getting ready!”  I was so worried that the children could have walked in as his door was unlocked.  I walked away and dressed the children. We [sic] didn’t talk about it then as I did not want the children to hear and we were getting late for the lunch.

   40.On 27 December 2012, the children had gone with my sister.  I had a conversation with [the father].  I said to [the father]: “I need to talk to you about your sexual habits.  I’m unhappy, feel unloved and betrayed by your behaviour.  I would like you to stop watching porn.  What if the children see it, they are always coming in and out of our bedroom and bathrooms”.  [The father] said angrily:  “I will never stop watching porn!  I enjoy watching it and will continue!”  I said:  “I am really worried of your behaviour now you are watching it during the daytime even when children [sic] are home”

   [The father] responded:  “You cannot protect the children all their lives.”

   “The children will grow up watching porn just like I did.  Its [sic] normal”

   I said: “I don’t think it’s normal as I was never exposed to it and only found out about it from you”

   [The father]: “I will never stop watching porn” “I have sacrificed a lot in my life because of you.  I’ve stopped relations with my friends, going out and doing all the things I enjoyed.  Porn is one thing I will not stop” I said: “It’s either porn or me?”  [The father] said: “I will NOT stop watching porn!”

   I was shocked to hear his reply and I walked away because I was upset and didn’t know what more to say to him.  His sexual addiction remained unresolved.

   41.About March 2013, on a Saturday night, I walked into the bathroom.  [The father] was watching porn again.  I said I’m really disgusted by your repeated behaviour and walked back to bed.  The next day, I told him that I am unhappy and extremely concerned for the children and his behaviour and it’s leading me to take the children and separate.  He said: “It’s a man thing, all men watch porn” I said: “I will call your father and ask him if this behaviour is normal and if it’s a man thing” [The father]: “You can call and ask anyone.” I dialled his parents [sic] number and he immediately asked me to stop and not embarrass him.  I said: “Since you insist all the time that it is a man thing, the only other male I can ask is my brother”

   (Mother’s affidavit filed on 13 July 2015) (original emphasis) 

3. Although, as counsel for the father submitted, the last of these incidents occurred in 2013, his Honour emphasised statements attributed to the father such as “I will never stop watching porn” which, if eventually established as being correct, meant that the father was likely to continue to watch pornography and masturbate.  His Honour understood that the father denied many of the mother’s allegations but appropriately proceeded on the basis that it was necessary to address the evidence adduced by her.  Considered in this light, his Honour was entitled to come to the view that even if the children were in the house, the father may watch pornography or masturbate behind closed doors in his bedroom or a bathroom.

4. This then requires consideration of the second aspect of this challenge, namely the magnitude of the risk that at night the children might see their father masturbate or come across pornography.

5. I agree with counsel for the father that his Honour provides little analysis for his conclusion “[t]here must be a risk that the children would come across that if staying at the same house overnight” and that in the circumstances of this case “a risk” is an unacceptable risk.  Doing the best that I can, it would seem that based on the mother’s evidence set out earlier in these reasons, his Honour was satisfied that the potential effect on the children of inadvertently coming across pornography or inadvertently seeing their father masturbate was sufficiently grave that even a very small risk they may do so is unacceptable. 

6. Given the surreptitious manner in which the father engaged in these activities, the obvious inference is he did his best to ensure the children did not see pornography or him masturbating.  His attempts at privacy qua the children have for years been successful and with respect to his Honour, in order to justify a conclusion that any risk of this type was unacceptable, something needed to be said about why it was his strategies adopted to date to keep his adult activities secret from the children were unlikely to succeed in the future. There is no such analysis. 

7. In the alternative, his Honour needed to explain why it was that the potential effect on the children of inadvertent exposure to pornography or this type of behaviour was sufficiently grave that a very small risk of exposure was unacceptable.  For this proposition to be made good his Honour would have needed evidence to that effect (which the family consultant did not give) or evidence that the surreptitious behaviour might be a precursor to something more sinister.  There is no suggestion of the latter as a consequence of which I agree with counsel for the father that his Honour’s risk analysis is flawed.

8. I also agree that the risk analysis is further compromised by his Honour’s failure to consider the father’s offer to continue and comply with undertakings intended to ensure there was no risk to the children they would come across pornography.  His Honour had previously accepted undertakings of this type from the father and presumably did so on the basis the father could be relied on to abide the obligations thereby imposed.  Consideration should have been given to the fact that the mother also accepted undertakings from the father.  The point being, in this case, the undertakings proffered by the father had been afforded weight as a method by which the children’s time with him might be enhanced and there was nothing which suggested he had or would fail to adhere to them.  Had his Honour considered the impact of the undertakings, there is little reason to doubt what was described as “a risk” would have been further reduced to an even lower level of risk of exposure to pornography. 

9. Although the existing injunctions do not attempt to deal with masturbation, I agree with counsel for the father that notwithstanding the mother’s constant reference to the father’s “sex addiction” (pornography and masturbation) by permitting extensive unsupervised day time contact between the children and the father, there can be no doubt his Honour (and the mother) accepted the father is not the compulsive “sex addict” she said he was.  Although I do not consider there is an evidentiary foundation for an undertaking addressed to masturbation, having proceeded on the basis that the father was able to provide an appropriate environment for the children during the day, his Honour should have considered whether injunctions addressed to masturbation lessened the asserted risk so that it was no longer unacceptable to his Honour.

10. The final aspect of this challenge concerns his Honour’s failure to elucidate the nature of the risk of harm to the children if they were exposed to pornography or masturbation.  So that it is clear, the risk is of inadvertent exposure and not actual involvement.  In other words, if per chance a child saw something it would be by accident and, if the father was present, it would cease.  As has already been mentioned, the father has ensured the children have not been aware he masturbates and there can be little doubt that if a child entered a bedroom or bathroom unannounced and the father was masturbating he would stop.   In relation to the television the only circumstance in which an immediate cessation could not be inferred would be if a child was able to gain access and, without being discovered, watch the type of shows the father watches late at night.  This risk is no greater than that which exists in any home where there is a television. 

11. Or perhaps a child might use the father’s iPad or mobile telephone and thereby gain access to previously used links.  But the father’s evidence is that he allowed “…the children very limited time on the iPad or the computer when they have been at my home in the past”.  There was no evidence the father stored pornography on his electronic devices and the evidence suggests he does not.  It follows that in the highly unlikely event the children did access pornography in the father’s home, he would intervene and it would be at worst fleeting.

12. I agree with counsel for the father that if his Honour considered this risk of exposure amounted to an unacceptable risk of harm, he need to explain why.  This is not a case where the potential consequences of inadvertent observation of the conduct complained of are so self-evident such that the failure to articulate the harm might be saved by the generous approach taken on appeal to ex tempore judgments delivered in busy duty lists. 

13. It follows that in this particular case his Honour’s finding that the children would be exposed to an unacceptable risk of harm if they stayed with the father overnight is flawed and was not available on the evidence adduced. 

14. This ground is made out.

15. Before I leave this issue and although there is no challenge to his Honour’s determination that the issues in this case would be resolved by the application of the primary considerations (s 60CC(2)) and s 60CC(2A) (greater weight to be given to s 60CC(2)(b)), it cannot pass without comment that before his Honour could give that greater weight he needed to be satisfied that at least one of the s 60CC(2)(b) elements was established.

16. Section 60CC(2)(b) provides:

    (2) The primary considerations are:

    …

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

17. The risk of harm can only have been of psychological harm from being exposed to abuse. The term “abuse” is defined in s 4(1) of the Act as follows:

    abuse, in relation to a child, means:

    (a) an assault, including a sexual assault, of the child; or

    (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d) serious neglect of the child.

18. Sub-paragraph (c) is the only provision of potential relevance. As has already explained, there was no evidence which established the children were at risk of serious psychological harm. Nor do I agree with counsel for the mother that when the father’s solicitor agreed with his Honour that the case would be determined by reference to s 60CC(2) and s 60CC(2A), it was conceded that the preconditions for the application of s 60CC(2A) had been met. Before his Honour, the solicitor for the father was very clear that it was the father’s case that the mother’s evidence did not satisfy the definition of abuse in relation to a child (Case Outline filed 23 July 2015 at [12]) and that there was no reason why s 60CC(2)(a) (benefit of a meaningful relationship) would not carry greatest weight in the case.

19. Error as alleged by ground 3 having been established, it is unnecessary to consider those grounds which challenge the adequacy of his Honour’s reasons.

20. Because his Honour’s risk assessment permeates his decision concerning the circumstances under which the children could spend time with the father, those orders which deal with that issue will be set aside.  Namely, Orders 2, 3(c), 3(d) and 3(e) of the orders dated 23 July 2015. 

Re-exercise

1. The question which then arises is whether that issue should be remitted for rehearing in the Federal Circuit Court or determined by way of re-exercise. 

2. As had already been mentioned, the parties have engaged Dr O to provide a report in the continuing parenting proceedings. That report will not be available prior to the end of May 2016. As counsel for both parties acknowledged, the pressure of work in the Federal Circuit Court is such that no-one could provide a reliable estimate about when a remitted hearing might be determined other than to acknowledge it could be quite a long time away.  In circumstances where neither party sought to adduce further evidence in the appeal the appropriate course is, therefore, to re-exercise.

3. The re-exercise takes place in the context of those orders which are undisturbed and his Honour’s findings to which no challenge was made.  In this regard, it will be recalled that the challenges to his Honour’s reasons were solely concerned with the assessment of risk.  This means that the re-exercise takes place in the context of orders which provide:

   ·the parties have equal shared parental responsibility;

   ·the children live primarily with the mother (and thus equal time is not an issue); and

   ·which deal with special occasions (to the extent this was an issue), extra curricular activities and a raft of injunctions.

4. The father has appropriate accommodation for the children and the parties live close enough to make it easy for the children to move between their homes and for the father to take them to school.

5. Otherwise, I agree with his Honour that notwithstanding the multiplicity of allegations made by the mother said to impugn the father’s parenting capacity, these would not stand in the way of the children being able to safely spend time with the father for the periods sought by him.  However, the larger issue as his Honour acknowledged was evidence that the older child was, on occasion, opposed to spending time with the father and said she, in effect, felt sidelined when with him.  Both parties were concerned about this and both agreed it was to the child’s benefit that she and they had consulted a child psychologist.  It would seem that the involvement of the child psychologist has been beneficial qua the older child’s relationship with the father and her resistance to overnight time appears to have lessened.  For example, and taking the mother’s evidence at its highest, there is only one instance which post-dates February 2015 of the child saying she did not want to spend time with the father overnight or to not see him as frequently as provided for in the orders of 17 March 2015.  On the other hand, according to the father the older child has talked to him about changes she would like to make to her bedroom in anticipation of her staying with him overnight. 

6. Both parties recount conversations with the younger child which give contradictory accounts of whether he wants to spend more time with the father (on the father’s evidence he does) or to complain about aspects of time with the father (the mother’s evidence). 

1. It is not possible to discern with certainty how either child views overnight time because the more recent statements attributed by each of the parents to the children are so contradictory.  His Honour was satisfied that the older child’s views were probably against spending longer periods of time with the father but said “she is not of an age where those views should be determinative of the questions placed before the court”.  Of course, by then his Honour had already determined there was an unacceptable risk of harm inherent in overnight time and that he would not make orders which enabled it to occur.  

2. As to the frequency of contact the approach his Honour adopted was not to grant the longer periods (three day weekends) sought by the father because those longer periods might have an adverse impact to what was then “a delicate stage of redevelopment of the relationship between that child and the father”.  I agree with his Honour that the evidence about the older child’s views suggests that regular alternate three night weekends with the father might compromise the progress which has been made in her enjoyment of her time with him.  In circumstances where post-separation the children have not spent time with the father overnight, the essential structure of his Honour’s orders as to the frequency of when the children spend with the father during school term was obviously calibrated to address the importance of the mother continuing in her role as the children’s primary carer, the older child’s occasional disquiet and yet giving both children the chance to enjoy and benefit from an ongoing relationship with a parent who has striven to be actively involved in their lives.   In my view the essential structure which his Honour ordered as to the frequency of time during school term is likely to provide the children with a reasonable degree of stability and provided it includes time overnight mean that the children would be able to better enjoy their time with their father and derive all the benefits they can from a meaningful relationship with him.

3. Although this falls far short of the father’s daily presence in the children’s lives which existed prior to separation, the amount of time that has passed since separation and without overnight time means that the longer weekends during school term which the father proposed would be premature.  However, the children’s relationship with the father can only be enhanced if they have the opportunity to spend time with him on weekends, giving him an involvement with their schools, potentially with extra curricular activities, and for a considerable part of the school holidays.  Given the ages of the children, orders which prevent the children being able to spend time with the father overnight and thus from his being able to fully engage as a parent have the potential to cause them to doubt his commitment to them.  Self-evidently the orders proposed by the mother would not, for example, give the father the chance to even have breakfast or dinner with the children and inevitably restrict his opportunity to actually parent the children.

4. This situation should be avoided and an appropriate level of involvement can be achieved by making orders consistent with those which his Honour ordered during school term but on the basis that time includes overnight time (also for Easter 2016) and three consecutive nights during each week of the school holidays.  Although this is more frequent than his Honour ordered and the mother proposed; by the time the school holidays come around the children will have had some months of regular overnight time with the father and thus should readily adjust to these longer holiday periods.  In an attempt to minimise the parties needing yet another interim hearing, the school holiday orders will continue beyond July 2016 and thus may operate until a final hearing sometime later than that.  Of course these are interim orders and, if for example by reason of Dr O’s report there is evidence which justifies variation, that step is available.

5. Overnight time has the added advantage of reducing the number of change-overs and can thus take place without the risk of conflict of the type that occurred on 17 May 2015. 

6. Thus, the mother will continue to be the children’s primary carer and their daily needs overwhelmingly attended to by her.  If, per chance, her evidence about the father’s poor cooking, failure to adhere to use by dates on food items, lack of attention to the children’s homework and the like have foundation (they are denied by the father), given the amount of time the children will spend with the father the potential impact on the children of these asserted deficits is likely to be inconsequential. 

7. It follows, I am satisfied that orders which provide for the father to have substantial and significant time with the children are in the children’s best interests and reasonably practicable.  Thus, in addition to the orders which are undisturbed, the father shall spend time with the children as follows:

   a)during school term each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday (commencing on the first weekend when pursuant to the orders dated 23 July 2015 the children were due to spend time with the father);

   b)each alternate Thursday from after school until before school on the following Friday;

   c)from 10.00 am Good Friday 25 March 2016 until 5.00 pm Easter Saturday;

   d)during school holidays each week from 9.00 am Sunday until 9.00 am Wednesday; and

   e)at such other times as the parties agree.

Costs

1. The only other matter which requires consideration is the question of costs.  The parties agreed that in the event the appeal succeeded there should be no order as to costs.  I agree with this approach.

2. In the event the appeal was allowed, each of the parties sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The preconditions for the issuance of certificates have been met and it is appropriate to request the Attorney General authorise payments in accordance with sections 6 and 9 of that Act.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 January 2016.

Associate:

Date:  28 January 2016