SAGAN & DANN
[2012] FMCAfam 1179
•2 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAGAN & DANN | [2012] FMCAfam 1179 |
| FAMILY LAW – Whether father’s conviction for possessing child pornography an unacceptable risk to children – whether supervised time means children have meaningful relationship with father – whether mother should consult father on decisions about children. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DAC, 65DAC |
| M v M [1988] HCA 68; (1988) 166 CLR 69 |
| Applicant: | MS SAGAN |
| Respondent: | MR DANN |
| File Number: | DGC 1250 of 2009 |
| Judgment of: | Phipps FM |
| Hearing dates: | 21 & 22 May 2012 |
| Date of Last Submission: | 22 May 2012 |
| Delivered at: | Dandenong |
| Delivered on: | 2 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lovering |
| Solicitors for the Applicant: | O’Halloran Davis |
| Solicitor for the Respondent: | Ms Valentine |
| Solicitors for the Respondent: | D M Valentine & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Allen |
| Solicitors for the Independent Children’s Lawyer: | Susan Ruffin Solicitors |
ORDERS
That the mother have sole parental responsibility for making decisions for the children [X] born [in] 2001, [Y] born [in] 2001 and [Z] born [in] 2005 in relation to the children's education (both current and future) and the children's health.
The children live with the mother.
The children spend time and communicate with the father until each child is 16 years of age as follows:
(a)On no more than six occasions each year supervised at [B] at times that [B] can provide.
Each parent must forthwith make application to [B] and complete any documents and procedures required by [B] to enable the supervised time to take place.
The father be at liberty to give the children birthday, Christmas or Easter gifts when spending time with the children at [B].
The father be restrained by injunction from doing the following;
(a)Discussing with the children or in their presence or hearing, future parenting arrangements in particular but not limited to future spend time arrangements;
(b)Discussing with the children any aspects of his past criminal behaviour;
(c)Taking digital images, video or photographs of the children;
(d)Attending the children’s school/s;
(e)Coming into the presence of the children outside of [B] Contact Centre;
(f)Communicating with the children outside of the [B] Contact Centre.
The mother is restrained by injunction from denigrating the father in the presence or hearing of the children.
The mother shall authorize the children’s school/s to forward to the father, at his expense copies of the children’s school reports and applications for school photographs.
The mother forthwith seek professional advice in regard to how to apprise the children in relation to the fathers 2010 criminal conviction and such advice not be sought from CASA (Centre Against Sexual Assault).
Otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sagan & Dann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDEONG |
DGC 1250 of 2009
| MS SAGAN |
Applicant
And
| MR DANN |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother Ms Sagan and the father Mr Dann agree that their children, twins [X] and [Y] [in] 2001 and [Z] born [in] 2005, are to live with the mother and that she have sole parental responsibility, although they disagree about the extent to which she should consult the father. The mother proposes that the children have no time or communication with the father. The father proposes that the children spend supervised time with him at a contact centre and that he sends cards and letters. The Independent Children’s Lawyer recommends supervised time.
The parenting provisions of the Family Law Act 1975 (Cth) apply and within that context the significant issues are:
a)What, if any, risk the father poses to the children;
b)What benefit the children may obtain from a limited relationship with their father;
c)What, if any, effect that might have on the mother’s ability to parent the children.
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that a child’s best interest is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
The parties agree that the mother should have sole parental responsibility. This means that there will not be an order for equal shared parental responsibility, s.60DAC does not apply and I am not required to consider whether equal time or substantial and significant time is in the children's best interests and reasonably practicable.
The risk issues arise because the father has been convicted of possessing child pornography.
The relationship and the proceedings
The father was born [in] 1961 and is aged 51. The mother was born [in] 1979 and is aged 33. The parties commenced living together in 1997 and separated in September 2008. The children then spent Monday and Thursday nights and every alternate weekend with the father. In December 2008 the mother moved back into the former joint home but the parties did not resume cohabitation. She left again on 19 January 2009.
The parties resumed the previous routine where the children spent Monday and Thursday nights and every alternate weekend with the father. This continued until the first weekend of February 2009. The father, by arrangement with the mother, collected the two older children from school on Thursday 5 February 2009 and then came to the mother’s home to collect [Z]. Precisely what happened is a matter of dispute. There was an altercation at the mother's home over items of property and over the mother’s attempt to have the children returned to her which led the mother to apply for and be granted an interim family violence order on Friday 6 February 2009.
The children remained with the father until Monday 9 February 2009. The mother went to the father’s house to collect them but the father would not return them. The mother’s step father then went to the house and removed the children by force. Because of this incident the police obtained an intervention order against the stepfather, the stepfather was charged with various offences and was subsequently sentenced to a community-based order. The children did not again see their father until supervised time commenced in October 2009.
The father obtained an interim intervention order against the mother and on 4 May 2009 the mother and the father each consented to mutual intervention orders, without admission.
On 18 February 2009 the mother rang Relationships Australia to organize mediation. At the intake interview on 2 March 2009 the mother told the interviewer of her concerns about the father having child pornography on his computer. She was advised to make a statement to the police which she did on 6 March 2009. The police attended the father's home with a search warrant and seized computers and compact discs, floppy disks and videos. On 15 March 2009 the father attended a police station and was interviewed. He denied knowingly possessing child pornography. He was charged with knowingly possessing child pornography and was bailed on his own undertaking with a condition that he was not to have unsupervised contact with any person under the age of 16 years old.
The application was filed by the father on 27 April 2009. On 25 May 2009 I made orders that the children live with the mother and that they spend time with the father supervised at [B] Contact Centre.
During the period 11 October 2009 to 23 May 2010 the children spent time with the father at the [B] Contact Centre on 14 occasions for one and a half hours each. In March 2010 [Y] was admitted to [omitted] Hospital to have his tonsils removed. The mother had her mother telephone the father and the father visited [Y] in hospital. The children have not spent time with him since 23 May 2010.
On 5 May 2010 the father pleaded guilty to one count of knowingly possessing child pornography. He was sentenced 12 months imprisonment with six months suspended. He appealed and was bailed after one night in custody. Upon appeal heard in October 2010 he was placed on a community-based order for 18 months. Conditions were that he perform 125 hours of community work and that he participate in the program provided by Department of Corrections for sexual offenders.
On 9 May 2009 the husband attempted suicide and was admitted to a hospital. He became bankrupt at about the same time.
On 24 May 2010 the Federal Magistrate discharged the order that the father have supervised time with the children.
Evidence
The mother and the father gave evidence. Orders made in the interim proceedings provided for a psycho sexual assessment by Dr K, a clinical and forensic psychologist and a family report by Dr W a forensic psychologist. Both prepared reports and were cross examined. Ms W, the team leader responsible for management of services provided at [B] Children's Contact Centre swore an affidavit annexing a report of the children's time with the father at the contact centre.
Mr C, Psychologist, prepared a Pre-Sentence Clinical Assessment Report before the hearing of the appeal in the County Court of Victoria. The report became part of the evidence in this case by consent. Dr P, Psychiatrist swore affidavits annexing psychiatric reports for both parties.
The mother
The mother lives in [omitted] with her partner and the three children. The children attend [omitted] Primary School. [Y] suffers from asthma and [X] has been diagnosed with epilepsy. In 2011 [Y] and a friend were getting into trouble and in July 2011 were involved in an incident of a sexual nature with another pupil. The friend has now moved to another school. A worker from [omitted] commenced seeing the mother and the children, mainly [Y], and the mother says that [Y]’s behaviour improved dramatically and quickly. [Y] also saw another counsellor.
Until late 2011 the mother was living with her mother and her stepfather. Her mother and stepfather separated and then the mother left with the children and obtained her own premises. The relationship between the mother and her mother broke down as the mother is very critical of her mother.
The mother suffered depression after the party's first child was stillborn and had treatment and medication over a long period. She suffered post natal depression after the birth of [Z] in 2005 and was admitted to the [omitted] Medical Centre Mother and Baby unit. From there she went to the [omitted] at [suburb omitted], organized through the Department of Human Services.
The mother alleges some episodes of abuse and family violence by the father, but she says the reason she separated from him was his addiction to computers and virtual games. While she knew that he was accessing pornography, including child pornography, it was the fact that he was always on the computer which made her decide to leave.
In her police statement of 6 March 2009 she gives the addiction to computers and virtual games as the main reason the relationship ended. In the police statement she says that he used to download a lot of pornographic material. About 8 years ago, that is about 2001, she noticed he was downloading child pornography. She said he seemed to be downloading it at least once a week and she said that some of the images used on his computer included videos of men and young girls from 10 to 12 years old involved in sexual acts.
When challenged why she allowed the children to spend time with the husband unsupervised after separation even though she knew he had watched child pornography since 2001 she says that at that stage she was not aware of the vile nature of the material he was assessing.
The mother said she has told the children that the father had done a bad thing and the judge said it was not safe for them to see him. She has not told them what the bad thing is and they have not asked. She said she would consider telling them when they were 18 and could understand. She accepted that some counselling might assist
The father
The father worked as a self-employed [omitted] during the relationship. That business came to an end after the separation, the husband became bankrupt and he attempted suicide in May 2009. He describes the period after the separation as particularly stressful because of the disagreement about the children and his being charged with knowingly possessing child pornography.
The police investigation found child pornography on computer discs and on the father's computer. The husband denies that he knew that the discs contained child pornography or that there was child pornography on his computer. He denied watching child pornography.
When interviewed by the police and later other professionals and in his evidence he asserted that the movies and images on his computer were put there by the mother or her stepfather. He said that the discs were given to him by the mother's brother who told him that they contained pornography. He said he wrote out the labels and placed them on the discs using names that the mother's brother gave him. The labels included "[first name omitted] pictures”, “X movies” and “V Young”. Some of the movies on the computer were the same as those found on the discs. He said he never looked at the images on the discs.
The father said that he was interested in younger women sometimes dressed up as school girls. He entered the expression "teens" in the internet search engine when looking for pornography. He said he was looking for pictures of 18 to 19 year olds. He acknowledges that he knew that a child for the purpose of offences concerning child pornography was a person under the age of 18. He said that when he wrote “V Young” on a disc label he thought it referred to pictures of 18 to 19 year olds.
The father pleaded guilty to one count of knowingly possessing child pornography. He said that when he found out that being the owner of the computer meant he was guilty he changed his plea to guilty.
I do not believe the father's claim that he did not know that there was child pornography on his computer, and had not viewed and did not know that the discs contained child pornography. His explanation that when he used the expression “teens” in a search engine and wrote "V Young” on a disk label he was referring to 18 or 19 year olds is improbable. He acknowledges extensive viewing of pornography over a period of years and yet says that when the mother's brother gave him discs telling him they contained pornography he wrote out labels and placed them on the discs, yet did not view the discs. This is improbable.
He acknowledges hours of computer use each week. When he was interviewed by Dr K he said that at that time he was spending 20 to 25 hours each week involved in Second Life a virtual game. He said he downloaded adult pornography, sometimes overnight. He acknowledges that he placed adult pornography on his computer and looked at it. He used his computer in his business. His claim that he did not know that his computer contained files of child pornography and that he never looked at them is improbable.
Despite his denials, the father's case in accepting that any time he had with the children must be supervised was presented on the basis that he had knowingly possessed child pornography. Nevertheless a finding of fact that he actively sought out and viewed the child pornography found by the police investigation is relevant. The professional witnesses, Mr C, Dr K and Dr W did not believe the husband's denial and proceeded on the assumption that he had actively sought out and viewed the child photography described in the police summary of evidence and set out in Mr C’s report. Therefore, their opinions depend on the assumption being correct. Dr K's opinion in particular, and to some extent Dr W’s rely in part on the making of false denials by the father.
Mr C, Dr K and Dr W did not believe the father's denials and express opinions accordingly. I find that their not believing him is correct. The father did actively seek out child pornography. He knew that his computers contained the child pornography files that the police found and that the discs the police found contained child pornography. He may not have viewed all of the movies and all of the images but he viewed many of them. The experts’ opinions, to the extent that they rely on the father's viewing of child pornography and his false denial, are soundly based.
The husband said that while he was engaging in the computer game Second Life some 25 hours each week in 2011, at the time of the hearing he had reduced his time to a few hours. He said this was because he was now unemployed and was socializing more. He still occasionally looked at pornography on the internet.
Pre sentence report
The presentence clinical assessment report was prepared by Mr C, psychologist. He summarized some parts of the prosecution summary. It said that the father was found to have 147 child pornography images in his possession. Of these, 22 included moving images of child pornography. The report describes some of the images, which is not necessary to repeat here, other than that Mr C says that they include penile penetration, both orally and vaginally of children aged between 4 and 16 years of age.
Mr C referred to the taxonomy of child pornography. He said that the images reported range from level 4 (Posing-deliberately posed pictures of children) through to level 10 (Sadistic/Bestiality-pictures showing children being tied, bound, beaten, whipped or otherwise the subject of something that implies pain). Mr C said it appeared that the majority of the images fall into level 8-9 (Assault or Gross Assault - pictures of children being subjected to a sexual assault involving touching involving an adult, gross obscene pictures of sexual assault involving penetrative sex, masturbation or oral sex involving an adult).
To Mr C the father explained that his parents separated when he was about eight when his mother left and he was expected to take responsibility for domestic tasks including taking care of his younger brother and sister. His father was strict and physically abusive. He ran away from his father's home at the age of 13 years and lived with his mother for a short time and then resided at his place of work as a [omitted] from the age of 15. He was bullied at school. He worked from the age of 14 years and he had very little contact with peers and limited romantic contact with females.
His employment history involved initially [omitted] until his mid twenties. He then worked in a [omitted], was unemployed for several years, resumed [omitted] work again then worked [omitted] before starting a [omitted] business which lasted for 12 years.
Mr C said that it appeared that the father experienced an arrested development whereby he experienced physical abuse and potentially neglect within his family. He had limited social interactions and friendships and Mr C says he appears to have developed a co dependent relationship with his most recent ex partner’ that is the mother. Mr C says the father appears to have remained socially isolated over the last 12 years and appears to use the internet as a means to escape the reality that he has been largely unhappy with.
Mr C conducted a risk assessment and concluded that if the father was to reoffend this would likely involve further access and downloading of child pornography. Mr C says the father does not have a history of any other sexual offending. He is a risk for contact offending given his conviction for possession of child pornography. Mr C says that the father's interest in child pornography appears situational rather than reflective of a preferential interest in sexual contact with children.
Mr C said that the father requires a moderate (low end of moderate band) case categorisation to prevent him from committing acts of future sexual offending.
Mr C said that as a precautionary measure he recommended the father have no unsupervised contact with children. Mr C recommended that the father not use the internet as a source of adult pornography.
Contact Centre Report
The father had 14 supervised contact visits with the children at [B]. The report shows an overall positive relationship between the father and the children and shows him dividing his time between the children, assisting them and comforting them if they become upset. The father took photos of the children during visits and the report records the mother’s concerns and the explanation given by the [B] supervisors that taking photographs was within the [B] policy and all photos were checked by staff to ensure that they are appropriate. The report shows the supervisor intervening on one or two occasions for inappropriate comments by the father to the children such as when he said “I’m sorry you saw Uncle [first name omitted] hurt me”. The supervisor on one occasion spoke to the mother about the manner in which [Z] was playing with dolls, placing dolls together, kissing dolls all over and pulling at their underwear. The supervisor told the mother she wanted her to be aware of this. There is no suggestion in the report that the supervisor considered that the behaviour had anything to do with the way the father behaved during his time with the children.
Dr K
Dr K is a clinical and forensic psychologist with extensive experience in clinical and forensic assessments and reporting to courts. As background information Dr K was provided with Mr C’s report, a report by Dr P and affidavit material. Dr K said he conducted an unstructured clinical interview, a structured clinical interview for DSM IV, that is American Psychiatric Association (2000) Diagnostic & Statistical Manual of Mental Disorders-Version IV, and a mental examination. Using DSM IV Dr K says that on Global Assessment of Functioning Scale for the father Best=50 and worst=40. On the scale zero equals extremely poor psychological functioning and 100 equals extremely good psychological functioning.
The history of his upbringing the father gave Dr K is similar to that given to Mr C. The father told Dr K he had four or five relationships, the longest being with the mother. Dr K said the father spoke at length about his position in relation to the child pornography, indicating that he was not guilty from his perspective. The father said he had diaries to prove that he was at work when there was this involvement but he could not find them. The father told Dr K that the mother or her stepfather were responsible for the pornography.
The father told Dr K that he went through a Sex Offender Treatment Program beginning in 2010 and going through to 2011. He had problems with depression over time and was currently taking an antidepressant. He reported to Dr K that he had made an attempt on his life in mid-2009, at the time he was missing the children.
Dr K said that the father described the Sex Offender Treatment Program as interesting and covering all aspects. Asked by Dr K what he thought he got from the program the father stated it went into the dangers of the internet and spoke about things that can make better hobbies and distractions. It allowed him to take a long hard look at his life.
Dr K considers the father learned little from the program. Dr K says despite significant efforts to determine what the father had achieved from the program there was little to be identified in terms of change, insight or knowledge transfer. Dr K said the father stated he did not consider he had a problem before the program or after the program.
The father told Dr K that he maintained an interest in Second Life, a virtual game, and that at the time of the interview he was spending 20 to 25 hours each week. He was still occasionally viewing adult pornography.
Dr K conducted a complete sexual history and sexual assessment using the Sexual Offender Needs Assessment Rating (SONAR). This, he says, is a psychological instrument that assesses the individual on dynamic practice which have been identified as predictive in terms of sexual offending. The assessment placed the father in the Low Risk Category for SONAR.
Dr K assessed the father on the Static 99 which he says is an actuarial scale designed to identify the risk associated with males offending against a child or non consenting adult. It is intended for males aged 18 years or more known to have committed at least one sexual offence involving a child or non consenting adult. The overall risk category for the father on the Static 99 style is medium-low-risk. Dr K says that the basic assessment results in Mr C's report are similar to those found in his evaluation.
The conclusion that Dr K reaches in his report is that supervised contact between the father and his children is appropriate. He says that the rationale for the recommendation is that there are inherent difficulties for the father which increased the likelihood of being vulnerable to child pornography use. The father has consistent personality difficulties with a depressive element to the difficulty. He has previously been found guilty of possession of child pornography although he has denied the charges. The sex offender program has not been of any significant assistance to him and he remains isolated and has no appropriate outlet for his emotional or sexual needs.
The father in his evidence said that he was socializing more and engaging with the program Second Life much less. He still occasionally looked at pornography on the internet.
Dr K, in evidence at the hearing, maintained the assessment of the father as low to medium risk of again accessing child pornography. Concerning matters are the fathers continuing denial of possessing and looking at child pornography and his continuing use of the internet to access pornography and engage in Second Life. Dr K said that with a person of the father’s background the progression to child pornography started with constant use of the internet and then moved through adult pornography to child pornography. Dr K maintained his recommendation that the father should have only supervised contact with children.
Family Report
Dr W prepared a family report. An earlier report was prepared by
Ms H. Some reference was made to it in the course of the hearing and Dr W had a copy of the earlier report available to her. She had copies of affidavits, a [B] report and Dr K's report. Dr W interviewed each parent and the children and observed the children with the mother. She did not observe the children with the father and she says this was because there were significant concerns raised by the solicitors and the Independent Children's Lawyer about this happening given that the children had not seen their father for so long. She said the consensus seemed to be that the court should make the decision whether or not the children should come into contact with the father at all, for any reason. Dr. W observes that this is a significant limitation in the report as she cannot comment on the children's relationship with their father as she could not observe the children with their father and get a sense of his relationship.
To Dr W the father maintained his denial that he had accessed child pornography. He gave a similar history of his life to the one given to Mr C and Dr K. Dr W said she gained the overall impression that the father lacks social competence and social skills as a result of his disrupted and abusive childhood and his ongoing experiences of being bullied at school. Dr W considered that the father’s continuing to deny his offending is very concerning as it suggests that he may not have learnt from the sex offender program. He denied the mother’s allegations of threats and violence. The father said to Dr W he knows the mother loves the children and he was pretty sure she would do anything for them and as a mother he could not fault her although he alleged she was mentally unwell and needed help and support previously.
Dr W says of the mother that while she could understand the mother’s focus on child pornography, throughout the session she gained the impression the mother was in the habit of blaming the father for everything including the children's problematic and/or sexualized behaviour even after the separation and even under supervision. Dr W says it seems that the mother has a long history of depression, suicidal ideation, and parental difficulties, culminating in child protection involvement and having to attend parenting assessment and education programs. Dr W said the mother seemed to minimize this and glossed over it when it is likely that it was a significant factor in the parties’ deteriorating relationship and their eventual separation. Dr W notes that the mother’s doctor reported that the mother's mental health issues are well-managed and she has no current concerns about the mother’s mental health or parenting.
The mother told Dr W she was opposed to the father having any time with the children, including supervised time. Her stated concerns with [B] include allowing [Z] to sit on the father’s knee and allowing the father to take photos of the children after she asked [B] not to allow this and they allegedly having said they would not. The mother said that [Z] appeared to be showing sexualized behaviour during some of the [B] sessions since she was reportedly putting dolls in sexual positions and undressing and redressing dolls and putting dolls between her legs. The mother said that she did not do that at kinder or home. Dr W remarked that this appears to be quite normal behaviour for [Z]’s age and stage.
The mother told Dr W that she did not think it would have any impact on the children not having their father in their lives. She is concerned that the father is still not admitting to his offences and his trying to set her up which she says is not true. She alleged that the father was never a great father and maintained that he disciplined the children badly by smacking them, holding [X] by the ear and dragging them into the bedroom against their wishes. The mother said the father was a good father in patches.
Dr W says that the children know they cannot see their father anymore because he has been bad but they do not seem to know the reason why. The children reported to Dr W that they liked seeing their father in the past at [B] and they reported having fun there. But Dr W says they reported that they did not like seeing him because their mother said so. They said that if the court said they should go back to [B] to see their father that would be okay but they stated that their mother would not like this. They said they thought they could have fun playing with their father again, but the boys said they did not want to see their father because their mother did not want them to. [Z] said she would like to see her father again and she was the only one who said that she missed her father.
Dr W observed the children with the mother. Dr W says the children appear to have formed a strong positive bond with her and see her as a safe and loving figure in their lives.
Dr W discussed the options available to the court. She says that the mother’s level of anxiety is understandable especially considering the age of some of the children, the nature and severity level of the majority of the images, and the length of time the father had been downloading those images. With this must be considered the negative psychological aspects of his personality, his denial of the offending and that he had not made necessary lifestyle attitude changes.
Dr W said it is important to look at the issue from the children's perspective. In their eyes that have lost a parent and do not really know why and they would have felt the loss and sadness associated with this. She says they would most likely have quite a lot of positive memories of their father but that it seems now most likely tainted by the fact that the mother appears to be sharing her own anxieties and negative views and opinions about the father with the children.
Dr W's analysis of the risks and balances involved is lengthy but in the end her recommendation is for supervised time, but she does emphasize the need for an assessment of the risk of the father reoffending and the risk this might expose the children to even if they have supervised time with him on a few occasions each year.
Discussion
The parties agree on an order that the mother have sole parental responsibility but the father proposes an order that the mother consult him about major long term matters, make a genuine effort to come to a joint decision and in the event that a joint decision cannot be made inform him within 7 days of any decision. The order for the mother to have sole parental responsibility is an order that is in the best interests of the children. An order for shared parental responsibility would require decisions about major long term matters to be made jointly, and would require the mother to consult with the father on major long term matters. This is the effect of s.65DAC. The father will have limited contact with the children at most and so will not be in a position to know what is best in many circumstances. The relationship between the parties is such that the possibility of them consulting and agreeing is remote.
The father proposes an order that the mother consult him about major long term matters, make a genuine effort to come to a joint decision and in the event that a joint decision cannot be made inform him within 7 days of any decision. Such an order would place on the mother similar obligations to an order for equal shared parental responsibility. The mother’s regard for the father is such that she considers that the children should have no time with him at all. She is caring for the children well and says that if the court does order that the children spend time with the father it will not affect her capacity to care for the children, but it would be an extra burden on her if she had to have any communication with the father.
The benefit to the children if the father is informed or consulted about major long term decisions might be that it could assist in promoting some relationship with the children because the father would have that amount of knowledge about their lives. It is difficult to see how this would assist the children in having a relationship with their father. If they see him they can tell him about their lives, their activities and what they are doing. Any additional knowledge the father might have is unlikely to assist. The relationship they have with their father will come from spending time with him rather than any knowledge he has about their activities.
The question is relevant to the first of the primary considerations in s.60CC, the benefit to the children of a meaningful relationship with both parents. The proposed order would do little if anything to promote a meaningful relationship between the father and children and would impose an unnecessary burden on the mother.
The first of the primary considerations and the additional consideration, the children’s relationship with each parent, are relevant to whether the father should have any contact at all with the children.
The parents differ about the extent the father was involved in their lives prior to separation, but he was involved. After separation the children spent about half their time with him until December 2008 when the mother and children moved back in with him. From 19 January 2009 the regime of the children spending about half their time with the father resumed until the first weekend in February 2009. The children then did not see their father again until supervised time commenced in October 2009. From 11 October 2009 to 23 May 2010 the children spent time with the father at the [B] Contact Centre on 14 occasions. Detailed evidence about this time is in the [B] report and that shows the children enjoying their time with their father.
Dr W says that the children enjoyed their time with the father and were puzzled why they were no longer seeing him. The mother does not think the children would benefit from seeing their father but Dr W considers the mother blames all her problems and the children’s problems on the father. The evidence of the time at [B] and Dr W’s opinion shows that the children will benefit from seeing their father. Time at the contact centre will be limited and supervision means the time does not have the same qualities as unsupervised time but it will be meaningful for the children. The mother’s belief that not seeing their father will not affect the children is coloured by her understandable reaction to the father’s conviction for possessing child pornography. Dr W’s assessment is preferable.
The consideration of the views of the children is relevant. The [B] report and Dr W’s evidence shows that the children want to see their father.
The second of the primary considerations is the need to protect the children from harm. The father’s possession and viewing of child pornography and the risk of his reoffending is a potential risk to the children. The risk is multiple. He might offend against the children, he might involve the children in the sense that if he again accesses child pornography and they become aware that he is doing so, or he might attempt to tell the children that he did not offend or that he did not do anything wrong which might have an adverse affect on the children.
Mr C and Dr K, experienced experts in the field of assessing sex offenders, both assess the father as being medium to low risk of re offending. Both consider he can have supervised contact with his children. Dr W reached the same conclusion. Dr P’s psychiatric assessment was referred to in the hearing and was not challenged. He recommended supervised contact only.
Supervision should ensure that the events of risk are controlled. The [B] report shows that the supervisors are alert to any inappropriate statements by the father to the children and they monitor and report behaviour. .Combined with the assessment of low to medium risk of the father re offending means that the risk to the children in supervised contact is low.
In M v M [1988] HCA 68; (1988) 166 CLR 69 the High Court of Australia said at [25]:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The balance between the risk to the children and the possibility of benefit to the children from spending time with the father favours the children spending supervised time with the father. The risks to the children described above are not unacceptable.
A letter from [B] says that it can provide long term supervised time. The frequency of the time will depend upon what [B] can provide but a reasonable balance is not more than six times each year.
The father proposes that he be able to send cards and letters to the children but the risk that he might attempt to justify himself, even subtlety, is unacceptable. He should be able to give birthday, Christmas and Easter gifts and receive copies of school reports and photographs.
The Independent Children’s Lawyer recommends orders that the father be restrained from taking digital images of the children. The mother is particularly sensitive to the taking of photographs and given his history there is a risk of the father placing the children’s photographs on internet sites. He should not attend the children’s school and he should be restrained from discussing the proceedings or his past behaviour with the children.
The mother will at some stage need to tell the children why their time with the father is limited. As they get older they will become curious and it is better they be told in controlled circumstances rather than learn some other way. The Independent Children’s Lawyer recommends an order that the mother take professional advice but not from the Centre Against Sexual Assault (CASA). The children had been taken to CASA which Dr W thought inappropriate. The proposal is sensible and so I will make the order.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 1 November 2012