Salt and Salt
[2019] FamCA 978
•18 December 2019
FAMILY COURT OF AUSTRALIA
| SALT & SALT | [2019] FamCA 978 |
| FAMILY LAW – PARENTING – Unacceptable risk – Child exploitation material – Conduct in internet chat rooms – long term supervision |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA |
| Johnson & Page [2007] FamCA 1235 M v M (1998) 197 CLR 250 |
| APPLICANT: | Mr Salt |
| RESPONDENT: | Ms Salt |
| INDEPENDENT CHILDREN’S LAWYER: | Ms J Lloyd |
| FILE NUMBER: | CAC | 1754 | of | 2016 |
| DATE DELIVERED: | 18 December 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 17 - 21 September 2018 & 6 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Hoult with Ms M Davis |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| COUNSEL FOR THE RESPONDENT: | Mr P O’Shannesy |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
Orders
The Mother has sole parental responsibility for the child H (“the child”), born … 2014.
That notwithstanding Order 1 above, the Mother shall inform the Father of any major long-term decision in relation to the child’s health, education or religion as soon as practicable following the making of such decision.
That the child live with the Mother.
That the Father spend time with the child for a period of up to three hours on four separate occasions each calendar year, with such time to be supervised by Z Contact Centre or an agreed equivalent professional supervision agency, at dates and times to be agreed, and failing agreement on the second Saturday in March, June, September and December from 10:00am to 1:00pm.
For the purpose of Order 4 above, the Father will meet the costs for such supervision.
It is noted that the transcript of the proceedings as conducted on 17 September 2018, and Exhibits M3-M6, M8-33, M36 and F2 are held securely in the Canberra Registry of the Family Court of Australia on the basis that they contain child exploitation material which may be unlawful to possess.
It is ordered that no person is to access or uplift the material referred to above without the leave of a Judge or Registrar of the Family Court of Australia.
Notwithstanding the preceding order the material referred to above may be returned to the Australian Federal Police following the expiration of all relevant appeal periods.
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 Salt & Salt 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 CANBERRA |
FILE NUMBER: CAC 1754 of 2016
| Mr Salt |
Applicant
And
| Ms Salt |
Respondent
REASONS FOR JUDGMENT
Background
The applicant Father in these proceedings is Mr Salt and the respondent Mother is Ms Salt. The parties married and commenced cohabitation in 2011. They have one child, H, born in 2014. The parties separated under the one roof in February 2016, the Father moving out in May 2016. Proceedings were commenced by the Father on 27 October 2016.
Since separation, the Father’s time with H has been supervised in one form or another, although not professionally. That supervision has settled to a pattern of day periods on Saturdays and Sundays each week, which occurs in the context of the Father flying for a few hours each way to engage in work and still be able to spend time with H.
H’s primary carer has always been the Mother and by the end of the trial it was uncontested that she remain in this role. The proceedings relate to the parenting arrangements for H and, in particular, the arrangements for the Father to spend time with H.
During the trial, much of the parties’ focus was as to whether the Father presents an unacceptable risk of harm occasioned by sexual abuse to H unless his time with H is supervised professionally. The question of sexual risk arises primarily from the Father’s possession of child exploitation material and engaging in sexualised internet chats on a teen oriented website.
Orders sought:
The Mother tendered a minute of orders sought at the commencement of the trial, seeking[1]:
a)That the Mother have sole parental responsibility for the child H (“the child”), born 2014.
b)That notwithstanding Order 1 above, the Mother inform the Father of any major long-term decision in relation to the child’s health, education or religion as soon as practicable.
c)That the child live with the Mother.
d)That the Father spend time with the child for a period of up to three hours on four separate occasions each calendar year, with such time to be supervised by Z Contact Centre or an agreed equivalent professional supervision agency, at dates and times to be agreed, and failing agreement on the second Saturday in March, June, September and December from 10:00am to 1:00pm.
e)For the purpose of Order 4 above, the Father will meet the costs for such supervision.
[1] Exhibit M1
Although the Father had contemplated orders to provide that H live with him, by the close of the hearing the Father had abandoned the prospect of a change in who H will predominantly live with. This had been raised on the basis of a potential incapacity on the part of the Mother to support the relationship between H and the Father, and associated risks to H’s development. By the end of the proceedings the Father did not pursue such a conclusion, and accepted that the Mother would, as she asserted, comply with orders for him to spend time with H, even if she did not agree with the Court arriving at the conclusion that the Father does not present a risk to H.
Rather, the Father sought a transition of his time with H into unsupervised overnight time each weekend.
Material relied upon
The material relied upon by the parties is set out at the Schedule at the end of this judgment.
In addition to this, there were three witnesses who gave expert opinion evidence in relation to H, being the family consultant, Ms P, a single expert, Professor M, a psychologist, and Dr L, a psychiatrist (who was an adversarial expert).
In relation to the question of risk, Professor M and Dr L (the Experts) provided evidence on this, while Ms P did not.
Terms of Reference were produced to direct Professor M in the preparation of his reports. He and Dr L each prepared two reports, Professor M’s involving interviews with and assessments of the parties and Dr L’s involving “opinion and critique”[2] of Professor M’s reports. Each had access to material filed in the proceedings, and material produced on subpoena. Each had access to the child exploitation material.
[2] Affidavit Dr L 15.3.18 p14
The Experts conferred, narrowing the scope of dispute between them, the narrowing being described in Exhibit C2. The key aspects of Exhibit C2 related to the potential diagnosis of the Father as suffering paedophilic disorder as being dependent on the nature of his interaction with the child exploitation material, and the question of risk to H also being referable to the nature of the Father’s interaction with that material. They agreed that these issues “are directly dependent on the findings of the Court in terms of whether or not the Court found that Mr Salt was in possession of the CEM (child exploitation material) and responsible for it.”[3]
[3] Exhibit C2 p3
At the trial, Professor M and Dr L gave their evidence contemporaneously. It may be taken that the critical aspects of each of their opinions were focussed upon by the parties in this process.
Issues in dispute:
With the input of the parties and the Independent Children’s Lawyer (“ICL”), in advance of the trial, on 5 December 2017, a number of factual matters requiring resolution at the final trial were identified:
a)The question of whether the Father presents as a sexual risk to H as informed by:
i)the behaviours of the child;
ii)the question of access to child exploitation material;
iii)the question of participation in Internet chat rooms;
iv)the question of whether there has been sexually inappropriate contact with H or another child;
v)the assessment by the Single Expert of the Father;
vi)the degree to which the Father exhibits insight (if appropriate) and how that goes to the question of the continuation of behaviour; and
vii)the question of if there is a risk, the degree to which it may be ameliorated.
b)Issues relating to H’s health, noting that the parties accept that the assessments made by Dr Q, Immunologist, and Dr R, Gastroenterologist, correctly reflect H’s health issues with the remaining question being how each of the parents responds to those health issues, how that reflects upon risk to H and their capacity as parents (although by the end of the trial this was not an issue addressed or pursued by the parties);
c)(Noting the Father’s abandonment of a case for reversal of who H lives with based on deficits in the Mother and her parenting) the Mother’s reactions to H and to the question of risk to H as may be informed by an assessment of:
i)her mental health and any vulnerability to anxiety,
ii)her capacity to accept a finding that there is no risk;
iii)her capacity to support a relationship between the Father and H, whether that be supervised or unsupervised in the future;
iv)the degree to which these capacities or incapacities demonstrate a risk to H to the extent that they undermine his future development and capacity to have a relationship with his Father; and
v)along with the degree to which any risk in relation to these matters may be ameliorated.
d)The practical arrangements for each of the parents to spend time with H;
e)The assessment of the benefits that H might obtain from relationship with each of his Mother and Father;
f)What appropriate arrangements might be for travel for H internationally; and
g)Whether there are therapies or programs available that might assist either or both of the parents in terms of their future capacity to parent and their future capacity to co-parent.
The trial was predominantly focussed upon what is set out at a) above, being the consideration of whether the Father poses a risk to H.
General principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, as understood in the light of the objects and principles set out in s 60B and following the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this part are to ensure that the best interests of children are met by:
a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d.parents should agree about the future parenting of their children; and
e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[4] Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.[5]
[4]Phillips & Hansford [2019] FamCAFC 165 [43].
[5] Ibid.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The key issues in this case reflect the primary considerations set out at s 60CC(2) of the Act, relating to the question of protecting H from harm and providing H with the benefits of meaningful relationship with each of his parents. The issues of harm and meaningful relationship revolve around the Father and the question as to whether he poses an unacceptable risk of harm to H, being a risk relating to sexual abuse.
Although H lives primarily with his Mother and has limited and supervised time with his Father, these issues come in the context of H having an undisputedly positive relationship with each of his parents.
In this case, in dealing with the primary and additional considerations, it is appropriate to take a layered approach, analysing the issue of risk before moving to the other considerations. Risk was correctly treated by the parties as critical in the resolution of what is in H’s best interests. The significance and place of the other considerations changes depending upon the conclusions made as to risk. Considering risk first in this particular case does not displace the enquiry more generally into what is in H’s best interests, but informs which considerations remain of importance.
Legal approach to risk
Consideration of risk of harm forms one of the two primary considerations, s 60CC(2)(b). The consideration is of:
The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration.
Issues of the consideration of risk arise on the making of assertions or allegations.
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami where at [39] Ryan and Aldridge JJ stated as follows:
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.
This reflects the approach generally applied in litigation,[6] but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M[7] where it was said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression…the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.
[6] See Alternative facts in the Courts, the Honourable Justice Stephen Gaegler AC, ALJ 93/7
[7]M v M (1998) 197 CLR 250
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at [19] that:
The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”…..The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.
The consequence of this was said by the Court [21] to justify a deviation from the usual approach in litigation:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child…the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
This approach was further explained by the Full Court in Johnson & Page[8]:
the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
[8]Johnson & Page [2007] FamCA 1235
Further in Johnson & Page the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
In N & S Fogarty J observed (as approved in Johnson & Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.[9]
[9]N & S (1996) FLC 92-655, per Fogarty J
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In N & S, consistently with the article quoted above, Fogarty J explained:
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed further in N & S[10], again as confirmed by Johnson & Page[11], adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
….
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
[10]N & S (1996) FLC 92-655, per Fogarty J
[11]Johnson & Page [2007] FamCA 1235
In dealing with the use of uncertain underlying facts as the foundation for the determination of unacceptable risk, no functional distinction can be drawn between a previous instance of sexual contact with the child (as in M v M) or other facts, (as here which relate to sexual attraction to children). They may carry different weight in the assessment process, they may point more or less cogently to the risk, but their functional significance in either case is derived from how they speak to unacceptable risk. The question remains whether, on the evidence as a whole, there is an unacceptable risk, a question that incorporates both the risk of an event occurring, and the risk of harm associated with such an occurrence. That analysis involves an examination of the factual matters put forward as salient to those questions.
Factual issues relating to risk
In dealing with the question of risk it is important to identify and assess the underlying factual basis along with the reasoning process as to how the underlying factual basis relates to risk.
The factual basis put forward by the Mother to establish risk has three elements. The first relates to child exploitation material found on the Father’s computer. The second relates to the Father’s participation in Internet-based chats while he posed as a teen girl. This incorporated not only the chats themselves but also a document that she attributed to the Father entitled “questions for virgins.” The third relates to conduct in relation to H and other children alleged against the Father.
In relation to the first element, the Father accepts that the material was contained on his device, as a result of him putting it there. The key factual issue to be resolved is as to the knowledge of the Father about the content of the material. Allied to this is the question of the manner of use of the material by the Father. The Father denies knowledge of the content and asserts that he had forgotten that the material was there.
In relation to the second element, the engagement in the Internet chats, the Father accepts that he engaged in the communications. The Father asserted that he was interacting with adults. He disputes his responsibility for the “Questions for virgins” document. The key factual issues relate to the age group the Father thought he was engaging with, and whether he was responsible for the document.
In relation to the third element, being the Father’s behaviour toward H and other children, the key factual issue is whether the conduct was sexually driven. The Father denies that it was.
Chronology of events significant to risk
It is useful to set out the key factual matters that speak to risk to form a chronological context. This does not cover every alleged fact, but rather those that carried significant weight in the trial and the reasoning process engaged in by the Experts. This chronology lists the interactions between the Father and the relevant documents that he saved (the child exploitation material), or produced (i.e. questions for virgins), and between the Father and other persons in chats.
2 January 2008 – the Father sent an email to his account, with an attachment called “instructions.” That attachment can be characterised as child exploitation material, involving a sexual story regarding a 13 year old.
2 September 2008 – the Father sent a file to AA email called “instructions2”. The content of that file is described in Table A. It contains 47 stories describing sexual contact involving children.
4 September 2008 – the Father saved a copy of instructions2 to his hard drive.
5 January 2009 – the Father used AA email to set up a youtube account.
15 September 2010 – the Father used AA email to register as “BB” on a forum called CC Forum.
2010 – The parties commenced their relationship.
4 April 2012 – The Father uses CC Forum under the alias of BB.
5 May 2012 – The Father uses CC Forum under the alias of BB.
5 July 2012 – The Father resets the password for CC Forum.
11 February 2014 – the Father registers as “Ms DD” on a forum called Forum T.
29 September 2015 – document “Questions for Virgins” produced, later found on Father’s telephone.
23 October 2015 – Ms DD and Ms EE chat.
5 January – 11 February 2016 – Ms DD and Ms FF chat.
9 February 2016 – Ms DD and GG chat.
17 February 2016 – Ms DD and Ms FF chat.
22 February 2016 – Mother locates the chats, instructions and instructions2.
The evidence as to the child exploitation material
Instructions and Instructions2 constituted material that referred, in written form rather than by picture or video, to sexual acts being committed by and with children. They were found by the Mother by logging into the Father’s email account.
The material included stories graphically describing sexual acts between children, between adults and children, and among these, incestuous sexual acts. Without seeking to align the material with any statutory definition that may be used of such material, in the sense that the material involved the description of children being involved in sexual acts, it is conveniently described as child exploitation material (being material about the exploitation of children, whether or not it involves the exploitation of actual children).
The Father accepts that he copied the child exploitation material from a website and then sent it to himself, or saved it. He says that he then forgot about it and never referred to it. He says that he knew that it contained erotic material, but says that he did not read the material or understand it to involve children. The question of whether he knew what he had retained is important to the determination of the significance of the possession of the material, and to whether it speaks to the question of risk to H. If his possession of the material was with knowledge, then, as explained earlier, this has a significant impact on the risk analysis made by Professor M and Dr L.
The manner of the handling of the material is significant to examining the Father’s assertion of a lack of knowledge. The material comprised two documents, instructions and instructions2. The Father explained that the material had been obtained by him copying it from an internet web page that “had a collection of sexually erotic stories, fictional stories.”[12]
[12] T22
Instructions contains a single story - “Ms HH the Article S” which was a story about an adult sexually assaulting a drunk 13 year old girl. Instructions was emailed by the Father from JJ email to AA email as an attachment on 2 January or 1 February 2008 (the uncertainty as to date arising from an unresolved question as to which number referred to day and which referred to month).[13] The Father said of this “so, sir, I will be very clear, I’m not acknowledging anything to do with that story. I’m acknowledging that I sent myself a file at some point.”[14]
[13] T23ff, T54
[14] T54
Instructions2 contained a series of stories. The character of the material is set out in Exhibit M7, a table prepared by Dr L as part of the preparation of his opinion evidence. Subject to limited qualifications which is not necessary to set out, Exhibit M7 was accepted by the Father as accurately setting out the material, and is set out below:
Table A
Story title (page number)
Brief description of ages involved
1. Story KK
Sister aged 11 years having sexual activity with brother aged 12 years, touching of underdeveloped breasts and vagina
2. Story LL
3. Story MM
11-year-old girl and a 15-year-old boy engaging in penetrative oral and vaginal sex
4. Story NN
13-year-old girl engaging in oral and penetrative sex
5. Story OO
10-year-old sister and 12-year-old brother engaging in bilateral oral sex
6. Unnamed
11-year old girl and adult couple engaging in penetrative oral and vaginal sex upon the child
7. Story PP
8. Story QQ
13-year-old boy sexual activity with adult female
9. Story RR
13-year-old boy sexual activity with adult female
10. Story SS
16-year-old girl loses virginity to brother
11. Story TT
16-year-old girl in sexual activity
12. Story UU
10-year-old brother and sister engaging in sex p98
13. Untitled
14. Story VV
15. Story WW
16. Story XX
17. Story YY
15-year-old sister, sex with 17-year-old brother
18. Story ZZ
12-year-old male, 11-year-old female, "fucking our daughter"
19. Story AAA
14-year-old girl sexual activity
20. Story BBB
21. Story CCC
14-year-old girl and boy sexual activity
22. Story DDD
23. Story EEE
24. Story FFF
25. Story GGG
17-year-old girl sex with her father
26. Story HHH
12 and 13-year-old girls, sex with adult male
27. Story JJJ
28. Story KKK
13-year-old girl, sex with 18-year-old male
29. Story LLL
12-year-old boy, sex with 18-year-old female
30. Story MMM
17-year-old boy, sex with adult female
31. Story NNN
32. Story OOO
33. Story PPP
16-year-old girl, sex with 17-year-old boy
34. Story QQQ
35. Story RRR
14-year-old girl sexual activity
36. Story SSS
37. Story TTT
Teenage brother sex with sister
38. Story UUU
39. Story VVV
13-year-old boy, sex with 13-year-old girl
40. Story WWW
15-year-old girl, sexual activity with adult male
41. Story XXX
42. Story YYY
43. Story ZZZ
44. Story AB
45. Story AC
46. Story AD
14-year-old sister, sex with 15-year-old brother
47. Story AE
12-year-old girl, sex with 12-year-old boy
The Father agreed that he had obtained Instructions2 by locating text, highlighting that text (he said by the use of a command such as controlAcommand), copying it, and then pasting it into a file. He accepted that as part of this process, although he could not recall it, he must have stored the material somewhere on his computer.[15]
[15] T 53
Instructions2 was then sent by the Father to his email address AA email and then saved onto his hard drive on 2 and 4 September respectively. He denied any memory of saving the document to his hard drive. [16]
[16] T 55
His affidavit evidence about these matters was restricted to the assertion of a vague recollection of “copying some sexually themed adult stories from an Internet web page approximately 10 years ago. I did not read the stories and had forgotten about this until I read Ms Salt’s Affidavit. I am embarrassed.”[17]
[17] Father's trial affidavit paragraph 72
It may be observed that, against his assertion that he did not know the content of the documents, the overwhelming bulk of Instructions2, including the very first story contained in the document clearly involved the depiction of children involved in sexual activity. Any examination of the material being selected was highly likely to have identified that the stories contained references to children.
In support of the saving being an unintended, unknowing saving of the child exploitation material, the Father described that he was disgusted at the material.
The following exchanges occurred as relevant to the Father’s alleged disgust in relation to the child exploitation material:
MR O’SHANNESY: It is…The story is clearly exploitative of that 13yr old in the story?
MR SALT: I would accept that, sir. It’s disgusting.
…
MR O’SHANNESY: So let’s get this clear, it just happens to be a file, that you say, you have never read?
MR SALT: Sir, I copied erotic stories and I sent them to myself, and I forgot all about it. 10 years ago.
MR O’SHANNESY: But you know they are not just erotic stories, these are stories, the bulk of them that have paedophilic themes?
MR SALT: Sir, I reject that, that is your interpretation not mine. I find paedophilia revolting. I would never seek out that material.
MR O’SHANNESY: This story that we’ve just taken you to, you accept that is a paedophilic themed story?
MR SALT: I accept that it is a story that is disgusting.
That disgust is in the context of the material containing reference to sexual contact between children, between siblings, and between adults and children, including parent and child.
Other evidence undermined, to some extent, the revulsion expressed by the Father. Insofar as the revulsion relates to sexualised contact between an adult and young teenager (which was the content of Instructions, which was the specific object of the professed disgust) the Father’s conduct in relation to the exchanges of messages via the forums, involving a sexual interaction with a person who could well have been such a young teen (it being ostensibly a teen forum) as discussed below, sits uncomfortably with the expressed revulsion.
For the Father, his conduct on Forum T was sought to be qualitatively distinguished from the content of the child exploitation material, on the basis that it was asserted that there was a higher level of brutality to the stories than that exhibited by the Father in his interaction with children via the forum. Even if such a distinction was made, it was not a distinction that was clearly drawn by the Father himself. To the extent that the child exploitation material may have features of greater brutality, such was not apparent in the document instructions that was the specific focus of the disgust claimed by the Father.
To the extent that the Father relied upon an expression of revulsion to undermine a conclusion that he unknowingly saved child exploitation material, the credibility of that revulsion is to some extent undermined by his sexualised engagement with teens on internet forums, as described below.
It may be observed that the Father caused the child exploitation material to be saved on his device. He did so in the pursuit of erotic material. On locating the erotic material he either sent it to himself, or copied and pasted into a document that he saved. Both Instructions and Instructions2 were obviously, and even on a most cursory examination, sexual stories about children (although not every story in Instructions2 was about children). All of Instructions was about child sex. The first and last stories in Instructions2 along with the bulk of those in between was also clearly about child sex. Their character as such could not be reasonably thought to have been missed in the process of locating and saving the material.
It should be concluded, on the balance of probabilities, that contrary to his assertions, the Father understood the character of the stories when he saved them.
The Father’s conduct on Internet forums
One of the key factual matters raised by the Mother related to the Father’s use of Internet forums. It was uncontested that the Father posed as a female teenager on forums that were populated by teenagers and young adults. He accepted that the forums would be used by teenagers and young adults.
He initially described the use of the Internet forum as “with a small number of women during the final difficult part of our marriage and after Ms Salt locked me out of our house. I am humiliated by and terribly upset at myself for having engaged in those conversations.”[18] His registration with, and engagement with the forums predates the end of the relationship, although it may be the case that the relationship was suffering at that point.
[18] Father's trial affidavit [84]
He further explains that his initial engagement with the forums was to gain information about sexuality and to understand better the Mother’s sexuality. He says that this led on to other things that he describes as “really stupid.”
Despite his use of such forums, the Father denied having any inappropriate discussions with a minor and denied having sexual discussions and explicit cyber-sex with a minor. He did however, accept that he engaged in sexualised interactions on the forums that he found sexually arousing, although he asserts that the other participants were adult.
He says that he is deeply embarrassed by this conduct, but maintains that it was, in reality, sexual contact with other adults.
The engagement with people in the chat rooms was described by the Father to Professor M as engaging in conversations “(posing) as a teen girl with older females exclusively.”[19]
[19] T41 21 September 2018
It is necessary to consider how the Father engaged with the forums.
The Father registered a false persona, BB on the Forum T forum on 15 September 2010. He accepted that the persona was to allow him to represent himself as Ms BB, a young girl, although he could not recall whether his intention was to represent her as a 15-year-old by use of the number 15.[20] He further accepted that the forum was to be used by teenagers and young adults. He did not expect the site to be used by adults either male or female.
[20] T58
The Father’s joining of the forum was shortly before the Mother and Father started their relationship. His use of the site ended in 2014. He received a number of notifications from that forum in 2012 and in 2014.
He accepted that he had used the forum to interact with “older teenage girls and young adults.”[21] He said that he deduced the age groups that he was dealing with on the basis of what was told to him and the context in which it was said. He said that his interactions occurred either at the very end of 2012 or the very end of 2013.[22] The Father produced no material of any of his interactions on the site to support his characterisation as to the ages of the persons involved. When asked why he had not produced any material in relation to this he responded “I’ve not been asked to do that, sir.”[23]
[21] T58
[22] T167
[23] T59
The Father also made use of another forum, called Forum T.
On 11 February 2014 the Father registered as “Ms DD” on Forum T. He accepted that he may have had contact with minors as he could not control who messaged him through the forum, but indicated that such interactions did not have a sexual content.
The Father accepted that he interacted sexually with persons on Forum T. He asserted that in most cases he was told the age or was able to infer it. He maintained that such contact was with persons who were neither children nor young teenagers.
This latter assertion should not be accepted.
A number of his interactions on this forum were produced at Exhibit M18 through to Exhibit M33. The Father asserted that what was produced was not the full set of interactions and so lacked full context. Despite this criticism he produced no further material to place the interactions into context, leaving his assertions without support.
While it may have been the case that on some occasions the other person being communicated with indicated that she was an adult, and that what has been produced is less than the full set of interactions, possibly missing the parts of conversations whereby the other person identified herself as an adult, two of the sets of communications appear to unequivocally be with a person representing herself as a child. A third involves contact with a person that became sexual without any indication being given that she was an adult.
The first of those involves sexually explicit interactions involving message exchanges between the Father posing as Ms DD and Ms FF. The second involves sexually explicit interactions between the Father as Ms DD and Ms U. The third is between Ms DD and Ms EE.
Ms FF
The Father, as Ms DD, interacted with Ms FF through the Forum T. In his evidence he asserted that he was “very confident that she was in her early 20s and, from memory, it was 23 or 24 years old.”[24] He said that he had come to this view because that was what he was told by Ms FF.
[24] T168
Whether or not, at some stage, there was an exchange between the Father and Ms FF where she indicated that she was of such an age (noting that no such communication has been produced by the Father) the relationship between the initial contact between the Father and Ms FF and the introduction of a sexualised exchange, as disclosed at exhibits M20 through to M24 do not reasonably leave open the possibility that Ms FF had represented herself as anything other than a minor prior to the sexualised contact.
Exhibit M23 contains messages exchanged between Ms DD and Ms FF commencing at 6.02 am on 5 January 2016. This exchange represents the first point of contact between Ms DD and Ms FF. The terms of the interactions identify it as the introduction. There is nothing in this exchange which identifies Ms FF’s age, although early in the exchange Ms DD identifies herself as at school but on a holiday break, and Ms FF likewise identifies herself as being on holidays. While the Father asserted that references to school were, to his mind references to university, they are equally suggestive of a child attending school. The references by both Ms DD and Ms FF to school raise squarely the question of their identity as school students and potentially being minors (although of course the Father was not a minor).
Exhibit M22 shows interactions between Ms DD and Ms FF at 7.26am on the same day.
Exhibit M21 shows further interaction between Ms DD and Ms FF at 8.39am on the same day.
Exhibit M20 shows interaction between Ms DD and Ms FF on the same day at 9.15am.
During these interactions there were graphic exchanges between Ms DD and Ms FF where each described engaging in masturbation at the time of the exchanges. That is, what was engaged in was mutual sexual activity.
Amongst these there was no identification made by Ms FF that she was an adult female actually aged about 23 or 24 years old (the age range nominated by the Father). Despite this the Father asserted that he was confident that at some point in the exchanges there was an identification of age. The Father was unable to describe or recall how such identification of age may have taken place. However, the close proximity of the exchanges and the continuity of the subject matter indicate that there was no such exchange identifying an age of 23 or 24 years old prior to the mutual sexual activity.
There was nothing in the exchanges to suggest that the Father was interacting with an adult rather than a minor. There is no basis on which he could have formed the view that he was dealing with an adult as they engaged in mutual sexual activity.
As he discussed with Professor M, the Father engaged in interactions including for the purpose of sexual arousal. The interactions with Ms FF are consistent with such a purpose.
Questions for virgins
Although not a part of the exchanges on the teen forum, the Mother gave evidence that on 6 February 2016 she saw a task on the Father’s telephone titled “questions for virgins.” The content was as follows:
“questions for virgins:
current age
age when you started wanting sexual activity 20
from 1 – 10 how attractive do u feel
how many times have you asked someone out and was rejected
how high do you think ur chances are of going as far as u would want in the ne…”
Father accepted that the Mother had raised this entry with him on 21 February 2016. He says he denied knowledge of it at that stage.[25] Although he accepts that the document was on his telephone, the Father continues to deny any knowledge of this entry in his telephone’s reminders. He denies being the author of the document.
[25] Father's trial affidavit [73]
The location of the document speaks to the Father being responsible for the document even if not the author. This list was in existence at about the same time that the Father was posing as Ms DD on Forum T. Its content is of a nature similar to the engagement of the Father on the forum and is, in part, directed to the discovery of the age of a person when they first desired sexual activity.
Ms U
Exhibit M30 contains communications between Ms DD and Ms U. They are incomplete (being cut off part way through the communication). Ms U identified herself as 13 and with a brother aged 15. The discussions included Ms U discussing whether her 15-year-old brother had erections and Ms DD identifying that she had first seen a naked boy when she was 16. The discussion did not traverse, at that stage, the participants engaging in sexual activity.
Ms EE
The Father, as Ms DD, interacted with Ms EE via Forum T. Without there being any apparent indicator as to the age of Ms EE (and accordingly whether the Father was interacting with a young teen or an adult) the Father engaged in sexualised conversation with Ms EE, including as to Ms EE’s sexual orientation, whether Ms EE was a virgin, and as to Ms EE’s first sexual experience.
Summary regarding the chats
In summary, these communications involve the Father, while posing as a teenage girl, discussing sexual subjects with a participant on a forum ostensibly directed to teens. The communications included persons either representing as an underage teenage girl (Ms U) or identifying as attending school and not having identified as an adult (Ms FF), or not having identified as an adult (Ms U). They involve a purpose being the Father’s sexual arousal.
The Father’s conduct toward H and other children
As noted above, the third factual element of the Mother’s claim that the Father constitutes a risk to H, relates to aspects of his conduct toward H[26] and toward two other children.[27] While the Mother had listed a number of matters in her affidavit, at trial a smaller subset were the subject of emphasis.
[26] Mother’s case outline document [11]
[27] Mother’s case outline document [12]
The Mother described an incident on 2 August 2015 when she alleges that the Father, while naked, played with H and permitted him to touch his genitals. She alleged that the Father playing with H while naked was a frequent occurrence. The Father denied that this was the case, saying that it had taken place on few occasions.
The Father accepted that he had been naked while playing with H, explaining that he had been on his way to the shower. He accepted that he had been touched on the genitals by H on one occasion, but that he attributed no significance to the incident.[28] He said that the Mother had expressed her concern that H would be attracted to his “dangly bits” but that she had also failed to express any concern to him.[29]
[28] Father’s affidavit 15 January 2018 [88]
[29] Father’s affidavit 15 January 2018 [88]
The Mother complained that she had not wanted H, at 10 months old, exposed to the Father’s penis, because she saw it as a boundary issue.[30] She said that she did not, at that stage, see it as a sexual issue, but was uncomfortable with the prospect that H might touch the Father’s penis.[31] She photographed the behaviour because she was concerned about it.
[30] T301 19 September 2018
[31] T304 19 September 2018
The Mother photographed a particular instance (shown at annexure E). While the photograph showed the Father naked and playing with H, there was nothing inherently suspicious in that photograph.
At face value, there is nothing in the incident, or in the Father playing with H while naked that indicated that it was necessary to act protectively toward H. The reaction by the Mother appears, again at face value, disproportionate.
This assessment is qualified by the description “at face value” for reasons that will emerge later, based on other findings and matters raised by the Experts.
The Mother referred to a number of occasions between 1 and 9 April 2016 where she observed the Father to be rubbing H’s inner thighs. Again, at face value, these matters did not raise an issue requiring a protective stance to be taken for H. The circumstances described by the Mother, of a Father touching his child, are not indicative of sexual interest.
The Mother described that on 24 April 2016 she observed H to touch the Father’s groin, belt and inner leg region while the Father touched H’s back and arm.[32] This was supported by photograph produced at annexure F, which depicts H playing with the Father’s belt. Again, there is nothing at face value that points to this being a display of sexual interest by the Father in H.
[32] Mother’s affidavit 26 July 2017 [128]
The Mother alleges that on 16 October 2016 she observed the Father to be kissing H and rubbing H’s crotch area over his pants.[33]
[33] Mother’s affidavit 26 July 2017 [137]
The Mother alleges that on 23 October 2016 the Father had an erection while kissing H.[34] She alleged that he was nuzzling H as H sat in his lap, and that he had an erection. The Father denies having an erection.[35]
[34] Mother’s affidavit 26 July 2017 [132]
[35] Father’s affidavit 15 January 2018 [96]
The Mother relies on testimony from her mother in support of this allegation.
The description of these two incidents is of circumstances that are apt to be innocently misconstrued or miss-observed. The circumstances of the description do not persuade that the Father had an erection. Without understanding more about the rubbing of the crotch area, again at face value it is not a matter that is indicative of impropriety on the part of the Father.
The Mother alleges that in April 2014 she observed the Father to be taking an interest in a urinating child, AF. The Father denies such.[36]
[36] Father’s affidavit 15 January 2018 [123]
The Mother alleges that on 13 March 2016 the Father appeared to take an unusual interest in a young child, AG, in touching her, in observing her nappy being changed, and encouraging H and AG to kiss each other. The Father denies any untoward actions or attitudes toward AG.[37] He accepts that he rubbed AG’s back, in an effort to settle her. There was nothing overtly sexual in relation to the Father’s interaction with AG.
[37] Father’s affidavit 15 January 2018 [116]ff
The experts
The evidence of the Experts goes to the connection between the underlying facts and the issue of risk of harm to H.
As to the first of these elements raised by the Mother, the possession of child exploitation material, the Experts together accepted that the child exploitation material is significant to the question of whether or not the Father poses a risk to H.
Both Professor M and Dr L considered that the incest themed stories added to the level of concern as to risk (on the proviso that the Father had sexually used the material).
Dr L, having examined and provided a summary of the content of Instructions2 said[38] (and was supported by Professor M):
The troubling thing was a significant proportion of those stories involved paedophilic content towards not just girls but also boys. So it featured boys having sexual activity with adults. It featured boys under the age of 13 having sexual activity with underage girls. So, based on the material, the target of arousal could well be boys and girls. It’s definitely paedophilic if the material is accepted as being viewed by the Father. And, in that sense – I mean, before I read the material, I thought there was a concerning level of risk of potential harm to the child. After reading the material, that solidified my concerns and did not allay my sense of risk in any way. It only worsened them.
[38] T17 21 September 2018
Dr L observed that the child exploitation material involved content involving both boys and girls, indicating that it was “impossible to exclude the presence of paedophilic disorder oriented towards boys and girls.”[39]
[39] T111 21 September 2018
Both experts agreed that the fact that the child exploitation material involved paedophilic content in relation to girls and boys was a relevant risk concern in this case.[40]
[40] T17 21 September 2018
The Experts agreed that a mere reading of the material was not of itself suggestive of a paedophilic disorder. For example, each of the Experts had been required to read the material as part of the assessment process. What is critical to the risk significance of the material is not just the content and mere reading of the material, but also the question as to the manner of the Father’s engagement with that material. That is, in storing the material on his computer, did he understand the quality of what it was that he was retaining? If so, in what manner did he use the material?[41]
[41] T36 21 September 2018
Dr L thought that if the Father had used the material, in a sexual manner, “there were sufficient grounds to diagnosing with a paraphilic disorder.”[42] He thought that if a story had been read once, then it was not suggestive of a disorder. However if a person read several stories involving a similar age group the use became more concerning, and that if someone had “kept the material, used to masturbate, thought about it a lot when they have had sexual fantasies…that would imply that they’ve got a paedophilic disorder.”[43]
[42] T65 21 September 2018
[43] T80 21 September 2018
Dr L articulated[44] the risk as flowing from the following:
the important thing for the Court to bear in mind is that behaviour doesn’t happen in a vacuum. Behaviour happens as a consequence of urges. Urges happen as a consequence of fantasies. ... There are fantasies first, then urges, and then acting on those.
[44] T43 21 September 2018
Regardless of whether the definition of paedophilic disorder was met for the Father, Dr L asserted that the risk issue came from the content of the Father’s fantasies, an assessment that Professor M accepted was the “general case”.
While, in order to support a diagnosis of paedophilic disorder, it was necessary that the relevant instances span six months (e.g. of use of the child exploitation material), the loss of such a timeframe may mean that “this (is) still evidence of sexual attraction to children but they may not reach the level of a diagnosis.”[45]
[45] T39 21 September 2018
Professor M noted that there was only limited research into the significance of written as opposed to pictorial child exploitation material for the commission of contact offences. He noted that few persons who are fantasy driven go on the commission of contact offences.
Neither of the Experts was able to point to research that dealt with how many people have read child exploitation material similar to what has been involved in this case nor the percentage of those who have looked at child exploitation material and then acted out sexually.
The Experts agreed that if the Father had used, in a sexual manner, the child exploitation material then he would be diagnosed as suffering a paedophilic disorder. Without that finding he should not be so diagnosed.[46]
[46] Exhibit C3
The Experts each concluded a similar level of risk if the Father has used the child exploitation material. In such a case Dr L thought of the risk as “up to moderate” and manageable with supervision and treatment. Professor M described the risk in such a case as “low to possibly moderate” but more likely limited to adolescent girls given his chat room behaviour. He too thought that the risk was manageable with treatment and possibly with continued supervision.[47]
[47] Exhibit C3
They also agreed that if the Father has not used the child exploitation material in a sexual manner, “then his risk for sexually abusing a child in his care was ‘low to negligible’. By logical extension, there would be no risk-related need for supervision of Mr Salt when he was with H.”[48]
[48] Exhibit C3
The critical risk question then is as to the nature of the Father’s interaction with the material, and whether that use was sexual in nature. The evidential conclusion that goes most closely to this issue is the conclusion that, contrary to his assertions, the Father knew the nature of the material that he had saved and retained. That conclusion does not determine the frequency or duration of his use of the material, nor whether it was the subject of masturbation. It does however, raise as a likelihood that the use was for sexual purposes, even if the exact manner cannot be particularised.
Such a conclusion points to either the Father suffering from a paedophilic disorder or, at least, being sexually attracted to children. The evidence does not permit the assessment of this as being confined to girls rather than boys. Following the risk pathway set out by Dr L, and generally accepted by Professor M, of fantasy, urge and acting out, the sexualised use of the child exploitation material places the Father within that pathway. While this does not mean that it is inevitable that what caused the Father to use the child exploitation material would also move him to act out in relation to H, it indicates the risk of such.
The protection of H requires orders that guard against an unacceptable risk of harm posed by the Father. The Mother’s case suggested that such unacceptable risk can be protected against by means of orders that provide for professional supervision of the time between H and his Father, with such time limited to occurring on a few occasions each year. This gives H the benefit of knowing who his Father is.
On the facts as found by me, the Experts suggested that the protection H required was, in the case of Dr L, appropriate treatment for the Father and supervision, and in the case of Professor M, appropriate treatment for the Father and, potentially, supervision.
The evidence in the case does not permit orders to be made dictating particular treatment for the Father. A scheme for his treatment is unable to be factored into the orders as part of the protective mechanisms for H.
However, even without treatment it appears that professional supervision would be sufficient to give protection to H.
Although there has been a regime of non-professional supervision to date, it is not in H’s interests that such a regime continue. The nature of the risk posed by the Father calls for professional supervision conducted at arm’s length from the Father.
Further, supervision other than professional supervision would deprive the Mother of the assurance that the supervision will be sufficient to protect H. Given the fragility that is identified in relation to the Mother, such circumstances are likely to be corrosive to her and to undermine the resources that she would otherwise bring to the parenting of H.
There are adverse consequences that flow from an ongoing order for professional supervision. These were commented upon by Boland J in Moose & Moose [2008] FamCAFC 108, where her Honour observed:
The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
In this case, professional supervision will result in a limited relationship between H and his Father which, according to Ms P, falls short of a relationship that can be described as a meaningful relationship. That loss of relationship carries with it particular disadvantages, including adverse impact upon H’s development in both the long and short term. He will become alienated from the Father and the paternal family. However, again as expressed by Ms P, this is a preferable outcome when weighed against the risk of being sexually abused.[77]
[77] Family Report [183]
There is an artificiality in long-term arrangements for supervised time. The evidence in this case does not allow the prediction of when H will reach a level of maturity that means that supervised time is no longer appropriate, either because it is not required for his protection, or because he has outgrown it to an extent that it is no longer a means by which he can reasonably spend time with his Father.
In terms of the balance spoken of by Boland J, the need to protect H means that an order for ongoing supervision is required, despite these deficits.
Ms P recommended that if supervised time was the appropriate outcome, then this should occur “for several occasions each year supervised by a professional.”[78] This recommendation is reflected in the orders sought by the Mother.
[78] Family Report [182]
There are advantages to maintaining a relationship even if it is to be professionally supervised. In particular, although it may not be a meaningful relationship, H will be able to know his Father in a manner that assists in H understanding his own identity, although issues as to his identity may still arise given the limitation in the relationship.[79]
[79] Family Report [183]
In order for H to retain knowledge of his Father, to accrue the benefits that will flow from that in his development and understanding of his own identity and despite the limitations inherent in long term supervised time, orders should be made that provide for ongoing supervised time, particularly as such were supported by the Mother. Recognising the artificiality and limitations of supervised time, the regime proposed by the Mother, and recommended by Ms P should be adopted. This strikes a balance between the difficulties associated with supervised time and the benefits of knowing who his Father is. Such an order recognises the limitations inherent in long term supervised time, and the potential for an adverse effect on H’s emotional well-being as identified by Boland J.
As to the allocation of parental responsibility, there is a vast chasm between these parents. There is a profound lack of trust between the parents. There is an inability to communicate between the parents. Given the protective nature of the orders that will be needed, it is also the case that the Mother will have the sole care of H. She will be the parent who will be intimately involved in the day-to-day care and the overall development of H. The Father will not be. He will not been a position to make long-term decisions that are tailored to H’s development. The Mother will be.
There is no prospect for cooperation between the parties in terms of long-term decision-making. They could not be thought to be able to comply with the obligations imposed by s 65DAC to an order for equally shared parental responsibility. Such an order would be unable to be complied with, would potentially be productive of conflict between the parties, placing added strain upon the Mother who will have the sole care of H. It is not in his interest that there be an order for equal shared parental responsibility. An order will be made for the Mother to have sole parental responsibility, but with provision for the Mother to keep the Father informed of long term decisions. This has the potential to assist the Father in understanding what is going on in H’s life in a manner supportive of H receiving benefits from the supervised recognition time that he will spend with the Father.
Conclusion
Orders will be made substantially in accordance with those sought by the Mother.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 December 2019.
Associate:
Date: 18 December 2019
Appendix A Material relied upon
The Father relied upon the following material:
a)Initiating Application filed 27 October 2016;
b)Affidavit of Mr Salt sworn 14 January 2018;
c)Affidavit of Mr Salt sworn 6 March 2018;
d)Affidavit of Mr Salt sworn 30 August 2018;
e)Affidavit of Ms O sworn 12 January 2018;
f)Affidavit of Ms D sworn 12 January 2018;
g)Affidavit of Ms N sworn 16 March 2018;
h)Affidavit of Ms K sworn 12 January 2018;
i)Affidavit Mr B sworn 12 January 2018;
j)Affidavit of Mr E sworn 12 January 2018;
k)Affidavit of Ms C sworn 12 January 2018;
l)Affidavit of Ms F sworn 12 January 2018;
m)Affidavit of Mr W sworn 8 March 2018; and
n)Affidavit of Ms G sworn 12 January 2018.
The Mother relied upon the following material:
a)Amended Response to Initiating Application filed 14 February 2018;
b)Affidavit of Ms Salt & Exhibit Book (sworn 14.2.18) filed 14 February 2018;
c)Affidavit of Ms Salt (sworn 30.8.18) filed 31.8.18;
d)Affidavit of Mr Y (sworn 7.2.18) filed 14.2.18;
e)Affidavit of Ms X (sworn 7.2.18) filed 14.2.18;
f)Affidavit of Dr V (sworn 8.2.18) filed 14.2.18;
g)Affidavit of Ms J (affirmed 7.2.18) filed 14.2.18;
h)Affidavit of Dr L (sworn 15.2.18) filed 27.4.18;
i)Affidavit of Dr L (affirmed 6.9.18) filed 7.9.18;
j)Affidavit of Professor M (affirmed 1.11.17) filed 1.11.17
k)Letter of Professor M – Response to questions filed 26.1.18; and
l)Family Report of Ms P received 14 Septembers 2018.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
4
1