SANSOM & RAPTIS
[2018] FCCA 3301
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANSOM & RAPTIS | [2018] FCCA 3301 |
| Catchwords: FAMILY LAW – Parenting Orders – whether the father is an unacceptable risk to the child of the marriage – where the husband is a registered sex offender – where during these proceedings the husband was convicted of committing an indecent act in front of the wife’s then 8-year-old daughter during the marriage – where the wife seeks that the husband has no time with the now 5 year-old child who has never met his father. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB(2)(c), 60CA, 60CC, 64B. |
| Cases cited: B & B (1993) FLC 92-357 Fitzpatrick & Fitzpatrick (2005) FLC 93-227 M & M (1993) FLC 91-979 Re Andrew (1996) FLC 92-692; A v A (1998) FLC 92-800 Rhodes and Lewington [2017] FCWA 75 Sedgley & Sedgley & Cahill (1995) FLC 92-623 |
| Applicant: | MS SANSOM |
| Respondent: | MR RAPTIS |
| File Number: | DGC 2631 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 19 February 2018 |
| Date of Last Submission: | 20 February 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr S Taghdir |
| Solicitors for the Independent Children's Lawyer: | Taft Lawyers |
ORDERS
All previous parenting orders in relation to the child [X] born 2013 (“the child”) are hereby discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend no time with the father.
The order of Judge Small of 28 July 2014 for the appointment of an Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Sansom & Raptis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2631 of 2013
| MS SANSOM |
Applicant
And
| MR RAPTIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Ms Sansom or “the mother” and Mr Raptis or “the father”.
There is one child of the marriage, namely [X] or “the child” born 2013.
The child has lived with the mother since separation and spends no time with the father. To date, the child has never met his father.
The mother seeks orders that the father not spend time with, nor communicate with the child because the father is a registered sex offender and she fears for [X]’s safety in his care.
The father seeks orders that he spend no less than 2 hours weekly with the child, with time to be increased as the Court deems appropriate.
The issues to be decided in this case are:
A.Whether the father poses an unacceptable risk to the child
B.In light of the decision in Issue A, should the father spend time with the child?
C.If so, what time should the father spend with the child?
Background
Ms Sansom was born on 1971 and is therefore 47 years of age. She is employed as a (occupation omitted). She is the primary carer of the child.
Ms Sansom has three children from a previous marriage, namely [A] born 2004 (“[A]”), [B] born 2006 (“[B]”) and [C] born 2007 (“[C]”), all of whom live with her.
Mr Raptis was born on 1971 and is therefore also 47 years of age. He is employed as a (occupation omitted).
The parties married on 2012 and separated on 30 January 2013. Their divorce was made absolute on 19 September 2015.
[X] is the only child of the marriage, and he was born some six months after the parties separated. He is Mr Raptis’ only child.
Mr Raptis has not met [X], and has never spent time or communicated with him.
Procedural History
This matter commenced with Ms Sansom filing an Initiating Application, Affidavit in Support and Notice of Risk of Child Abuse on 16 September 2013.
The matter first came before me in the Duty List on 11 November 2013. Final Orders were made on that day for the child to live with the mother and for the time the father spends with the child to be reserved.
Ms Sansom filed an Initiating Application, Affidavit in Support and Financial Statement on 2 December 2013 with respect to property settlement matters.
Mr Raptis filed a Response, Affidavit in Support and Financial Statement on 19 February 2014. Orders were made on 24 February 2014 for the parties to attend a conciliation conference. Final Orders with respect to property matters were made on 8 May 2014.
Mr Raptis filed an Amended Response and Affidavit in Support on 2 May 2014 seeking parenting orders. On 28 July 2014, the matter came before me in the Duty List. Orders were made for an Independent Children’s Lawyer to be appointed, a section 69ZW order, and for the father to attend upon a psychiatrist for the purposes of a psychiatric assessment and the preparation of a report.
Ms Sansom filed a Reply and Affidavit in Support on 29 August 2014.
On 9 August 2015, the matter came before me for a Mention. Orders were made by consent between the father and Independent Children’s Lawyer for the father and mother to do all such acts and things and sign all documents necessary to place their names and that of the child on the waiting list at a registered child contact centre.
Ms Sansom filed an Amended Response to Initiating Application and Affidavit in Support on 1 December 2016.
On 7 December 2016, the matter was listed for Final Hearing on 19 February 2018 at 10:00am with an estimated hearing time of 3 days. An order was made for the parties and the child to attend upon a family consultant for the purposes of the preparation of a Family Report.
The Family Report was prepared by Ms N (“Ms N”) and was released on 8 January 2018.
Final Hearing commenced on 19 February 2018. Both the mother and father were self-represented and Mr Taghdir appeared as the Independent Children’s Lawyer.
The witnesses at trial were the mother, father and family report writer, Ms N.
Following the conclusion of evidence and submissions on 20 February 2018, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including the Affidavit material upon which they relied, exhibits tendered at trial, my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
The evidence
Ms Sansom and Mr Raptis had known each other as children, as their parents attended the same church, but then did not see each other until they were 23 or 24, when they became friends.
During that period of friendship, in the mid-1990s, Mr Raptis informed Ms Sansom that he had a history of sexual offences which consisted of masturbating in public.
The parties did not meet again until almost 20 years later, in 2012, when they formed a relationship, marrying on 2012.
At that time, Ms Sansom was divorced from her previous husband, Mr L (“Mr L”), with whom she had had three children. Ms Sansom and Mr L were in dispute about the detail of the care arrangements for their three children during 2012.
At the time of the marriage, Mr Raptis’ criminal history had expanded, so that between 1991 and 2009, he had been convicted of the following offences:
· wilful and obscene exposure in public - multiple convictions
· indecent assault
· inviting a minor in the making/production of child pornography
· obtaining a financial advantage from a Commonwealth entity
· failing to comply with reporting obligations
Further charges of theft, burglary, attempted theft, loitering in a public place frequented by a child, stalking, behaving in an offensive manner in a public place, and failing to give information as to a driver, were either withdrawn, dismissed or struck out during that period.
In 2006, Mr Raptis was placed on the Sex Offenders Register (“SOR”) for eight years after two separate incidents of approaching secondary schoolgirls at [Railway Station], and asking them to watch him masturbate.
In 2009, as a result of convictions for indecent assault in relation to fellow employees at his workplace, he was placed on the SOR for a further 15 years.
It is Mr Raptis’ evidence that at the time of the marriage, Ms Sansom knew the full extent of that history, while Ms Sansom says she believed the offending to be minor in nature and well in the past.
The marriage ended when the Department of Health and Human Services (Child Protection) (“DHHS”) investigated the mother after Mr L raised concerns about Mr Raptis having contact with his children.
DHHS assessed the mother as not being protective of the children in that they believed her to be minimising the risk to her children from Mr Raptis, and the three oldest children were removed from her care and placed with their father.
Mr Raptis left the family home on 2013.
Even after Mr Raptis left the home he had so briefly shared with Ms Sansom and the children, DHHS suspected that the separation was merely a sham initiated to convince DHHS to return the children to her care.
It is the mother’s evidence that Mr Raptis had not fully advised her of the extent and nature of his offences, and nor did she understand the implications of sex offending behaviours for her children and herself.
She says that it was only after DHHS referred her to the Centre Against Sexual Assault (“CASA”) for protective parenting counselling, that she came to fully understand the extent and nature of Mr Raptis’ offending.
Ms Sansom obtained an Intervention Order against Mr Raptis after he contacted her multiple times against her expressed wishes in early 2013 after separation. That Order named her, and later her (then) three children, as Affected Family Members.
When [X] was born in 2013, that Order was varied to include him as an Affected Family Member.
It was only then, in August 2013, when Ms Sansom gave an undertaking to DHHS that she would not allow the children to come in contact with Mr Raptis, that [A], [B], and [C] were returned to their mother’s care.
The Intervention Order was initially for a period of six months, but was extended on 24 February 2014, and varied on 6 August 2014 so that it is now an indefinite Order.
Mr Raptis instituted these parenting proceedings on 2 May 2014 by way of an Amended Response to property proceedings initiated by Ms Sansom on 2 December 2013.
On 29 June 2015, [A], who was then 11 years old, disclosed to her mother that during the marriage in 2012, Mr Raptis had exposed himself to her and that she had caught him masturbating in the parties’ bed.
As a result of the subsequent police investigation into that disclosure, Mr Raptis was charged with committing an indecent act in the presence of a child under the age of 16, and on 2016, he was convicted of two counts of that offence, and was placed on a Community Corrections Order for two years, and on the SOR for life.
So much is agreed between the parties, although the father disputes the facts behind the conviction of 2016, and believes that the initial Intervention Order was obtained by Ms Sansom in order to exclude him from [X]’s life.
It is the mother’s evidence that she only knew that Mr Raptis had been placed in the SOR for life when that evidence was elicited at trial.
It is against that background that I must decide the issues in these proceedings.
Issue A. Whether the father poses an unacceptable risk to the child
The mother’s evidence
It is the mother’s evidence that at the time of the marriage, and until DHHS had begun their investigation in late 2012, she had believed that Mr Raptis’ offending was minor, what she called “a misdemeanour”, and that its nature was of masturbating in public on a couple of occasions.
She says that she had spoken to Mr W (“Mr W”), the psychologist to whom Mr Raptis had been referred after a two-month period in prison in mid-2009 on charges of having indecently assaulted two women at his workplace, and that Mr W had told her that Mr Raptis had not done anything that “other men had not make mistakes with”, and that he was not a danger to her children. Ms Sansom’s evidence is that she was reassured by the conversations she had with Ms Sansom.
Initially, when DHHS became involved with her family in late 2012, Ms Sansom says that she was supportive of Mr Raptis, but that she changed her mind when she became aware of the full extent of his past offending.
Ms Sansom’s evidence is that she was unaware of the full extent and nature of the father’s offending until she had a conversation with the lawyers representing her in her family law matter with Mr L in late January 2013. She says she was shocked and overwhelmed by that knowledge, and that she had asked the father to leave the family home.
She had attended protective parenting counselling at CASA after a referral from DHHS. It was only then, after she had read a book recommended by her counsellor at CASA in or about 2013, that she had truly understood the implications of Mr Raptis’ offending for her and her family.
She says that she was shocked, angry and greatly distressed when she had to confront the reality that the father was a persistent offender and that there were signs that he might be grooming her children for future offences. It was evident at trial that none of that anger had dissipated over the intervening years and that Ms Sansom has absolutely no trust in Mr Raptis.
In her affidavit sworn and filed on 2 July 2015, Ms Sansom expresses her reaction to [A]’s disclosures on 2015 thus:
6. On 2015 I was driving with my three older children to the Dandenong Federal Circuit Court as I was planning to file my Application for Divorce. [A] was sitting in the passenger seat and began telling me how she disliked the applicant. She asked me about my next court date, to which I said [date]. She then continued to say to me, “Do you know he took his clothes off in front of me to have a shower, and said he didn’t care if I looked at him?”
7. I was shocked and asked for further clarification. [A] then continued to say she had been in the bedroom with him on another occasion when he had been under the bed sheets masturbating. When [A] had asked him what he was doing, the Applicant’s response was, “something that all men do”. I was extremely horrified and angry to hear this.
It is Ms Sansom’s evidence that she then contacted [A]’s father, Mr L, and that they had taken [A] to the police station to report the matter. [A] had given a statement and video evidence to officers from the Sexual Offences Child Abuse Investigation Team (“SOCIT”) on 2015, that statement and evidence leading to Mr Raptis being charged and later convicted on 2016.
Ms Sansom is adamant in her belief that Mr Raptis poses an ongoing risk to all four of her children, and she is totally opposed to him having any contact with [X].
It is her further evidence that if I were to order [X] to spend time with his father, that obligation would cause significant trauma to her and, more particularly, to [A], who is now 12 years old.
She gave evidence at trial that she had arranged for [X] to see a counsellor and that she had discussed with the counsellor ways that she might tell [X] about his father should he ask about him in future.
Ms Sansom gave her evidence at trial in a forthright and open manner and she was an impressive witness. Her contempt for Mr Raptis was palpable throughout the proceedings.
The father’s evidence
The father acknowledges his criminal history, but says that he does not pose a risk to [X], and wants to be positive influence and an involved father in his life.
Under cross-examination by the Independent Children’s Lawyer at trial, Mr Raptis was asked whether his criminal offending dated back as far as 1991. He replied:
The recorded ones, yes. I first committed a crime in 1986… but I was given a warning. And then after that, the next one appears when that one is recorded.
Mr Raptis’ full criminal record, from 1991 to 2016, was tendered in evidence at trial. He conceded that he received various sentences, ranging from a Community Based Order and Community Corrections Orders, to fines, suspended prison sentences and to one period of two months’ imprisonment between 1991 and 2016.
It was Mr Raptis’ evidence that after a conviction for inviting a minor in making/producing child pornography in 2006, he had attended a sex offenders’ group therapy program once a week for three hours and that that program had lasted “almost for a whole year”.
It was his evidence that that program “was about confronting my offending behaviour”, learning to deal with “personal triggers”, and “what you need to do to change”.
Mr Raptis said:
For me, it’s the fact that if I feel I am rejected or I feel inadequate or put down or I feel like I’m useless, no good – if I’m in a situation where that’s a result, I then build up rage. And when I feel angry or upset or distressed, I then – the next step was then going into an offensive behaviour. So to stop that from happening was to then find constructive ways of dealing with the fact that I can’t control everything. There are going to be times when I’m going to fail and it is my fault, but to be able to address that in a way that I don’t have outbursts or, you know, have – allow impulse and trigger to take over. The way I would cope with that is basically by having regular therapy. Now, at the time, I didn’t when I finished because, two years later, I reoffended or was charged with another offensive (sic in transcript).
As a result of his subsequent offending, which related to indecent assaults against fellow employees in 2008, Mr Raptis was sentenced to four months prison with two months of that sentence being suspended. Mr Raptis explained:
I was given four months prison, but two months was suspended and I had to do two months. And while I was in there, I had – because of the SOPE’s[1] program people, they recommended that I get another assessment done while I was in prison. So I had my DNA taken and I also had Dr D – I think his name was Dr D, who was the assessor who gave me a mental health assessment in prison to give me a ranking, because now that you’re in prison, you get a ranking of violent behaviour and what ranking you get. So he has done that assessment. So when I was about to leave, he is recommending – because he knew of Dr W and because I had in the past been with Dr W, he says, “Look, Mr Raptis, you can’t be released. It shows that you’re still fragile. It sounds like you’re going to reoffend. To monitor you, you’ve got to go back to a doctor.”
[1] Mr Raptis gave this as the name of the sex offenders program he had previously engaged with.
It was his further evidence that “the parole person who released me” had made his first appointment with Mr W, and that he had been seeing Mr W pursuant to a mental health plan approximately once a month ever since.
I note that Mr W filed an affidavit on behalf of the father in these proceedings, and I will address that affidavit later in these Reasons.
Mr Raptis stated that he had Mr W’s telephone number and can call him at any time if he is distressed or feeling under pressure to offend, and that he had done that outside his normal appointments with Mr W on several occasions.
Mr Raptis then gave the following rather curious evidence:
… by the time I met Ms Sansom, I was now being diagnosed as a type 2 diabetic, so my libido was dropping. I’ve had erectile problems as well. So even though I was with Ms Sansom for that particular period, I was already starting down the path of change in the sense of biological change in the sense of my libido dropping. Since 2012, I found that it’s got progressively, if you can call it, worse in the sense that I don’t have the sexual drive that I once had in my youth. As you can see by the frequency rates in my offending behaviour in the beginning when I was younger, I had a higher libido. So the frequency rate with the rage and the frustration was a lot higher, but now, as I got older, it’s beginning – it’s become a lot less. The fact that – of that condition, I’ve actually – because I’m in a program at the moment through these convictions is that’s one of the issues we’re addressing, like, how do I feel because I don’t – you know, because I’ve got less drive. And, for me, it’s a lot better because there is less rage. There’s less, you know – it’s actually better for me to be in the state that I’m in because of the fact that there is no – I can happily face a problem without having to worry about the other consequences.
When asked if he told Mr W “absolutely everything”, Mr Raptis replied in the affirmative, and the following exchange then took place between him and Counsel for the Independent Children’s Lawyer:
Counsel: But that didn’t include the matters in relation to [A], did it?
Mr Raptis: What do you mean?
Counsel: Well, you didn’t tell him about – you didn’t confide in him or tell him in relation to what you were found guilty of in relation to the matters relating to [A]?
Mr Raptis: No, no. He – he – he knows about my convictions.
Counsel: No, he knows about it but at the time going through your therapy, before you were charged, you didn’t mention to him that such and such had happened over a period of time?
Mr Raptis: Well, I – I – I’ve said right from the start but I don’t believe the events that occurred the way they were presented to me, and I believe from the documents I have with Ms N that there is evidence to show that [A] was too young to know so…
Counsel: Mr Raptis, this has been now a repetitive feature of the evidence that you’ve provided. Are you denying the fact that you’ve been found guilty and convicted of charges in relation to [A]; “yes” or “no”?
Mr Raptis: I’m not – I’m not denying that; that I’ve been found guilty.
Counsel: You accept that you challenged the charges that were laid against you, and the matters that were levelled against you?
Mr Raptis: Yes, I challenged them.
Counsel: And that notwithstanding your – did you have a lawyer defending you?
Mr Raptis: Yes.
Counsel: Notwithstanding putting up a defence, you were found guilty of those offences?
Mr Raptis: Correct.
Counsel: Notwithstanding that you deny now – that you continue to deny that those offending – or the matters alleged against you occurred. Is that your position?
Mr Raptis: I’m saying that the events that was described didn’t happen.
Counsel: But you accept the fact that you had been found guilty and convicted of it?
Mr Raptis: Yes.
Counsel: Did you raise those matters with Mr W?
Mr Raptis: Yes. We’ve discussed everything.
Mr Raptis conceded that the report he had obtained from Mr W was written before he was charged with those offences, and that he had not sought an updated report from him since that time. The Court would have benefited from such a report.
Counsel then asked Mr Raptis exactly what he had said to Mr W about those charges and suggested that he might have said “just like you said today in court, and told him that, ‘look, I’ve been found guilty but I deny that it’s ever happened so don’t worry about this’ ”.
Mr Raptis denied that that was the case and said:
I’ve told him what I believe happened, and he turns around and says, “Look”, you know, he confronting (sic in transcript) and he says, “Look, you’ve got to deal with the fact that a child has seen this happen. This matter has gone to court”.
He said that Mr W had further told him: “You have to address the reality that you cannot behave like this in front of children”; and that he had to take responsibility for his behaviour.
After Counsel for the Independent Children’s Lawyer had completed his cross-examination, the following exchange took place between the bench and Mr Raptis:
Judge: Mr Raptis, you sat in the witness box yesterday and today and talked in what can only be called the most matter-of-fact way about offences against children.
Mr Raptis: Okay.
Judge: How do you feel about the fact that you’ve got multiple convictions over a period of more than 20 years of sexual offences against children?
Mr Raptis: There is no justification for my bad behaviour. I – I – I don’t have the – the words to tell you that it is a great disappointment to myself, a great betrayal of everything that I was taught or grown up to believe in. What I can say is that when I was in a very dark place and in a weird way it was our – people say, it was a cry for help, and it wasn’t really. It was just a very self-destructive way of thinking and I went through a process where I just did not care. I was just on a path of total disrespect for myself and for the people around that I was hurting. I think it wasn’t until I reached the stage where I was being convicted on a regular basis that I started to realise I’m not – because I was doing it as a child myself. So when I first started, I was 15, 16, 17 so I was in a mindset and then when I got to about 23, 24, then I realised, I could hurt somebody and when I was going through my rehab at the [rehab centre] in Suburb L, like the women there were amazing in the sense that they just confronted me and said, “what are you doing? Do you want to hurt people? Do you actually want to go further than this?” And when I started to realise how cruel and vicious that I had been I – I was just so ashamed. I actually think I went through a very bad phase and realising how worthless I felt. I really felt that, you know, that I was no good and, around that time, I had friendships and Ms Sansom was one of the people that was there in my life at the time, and we were all going through a really bad patch because in our church there was a lot of paedophilia going on and I wasn’t necessarily attacked or raped, but I was – I was impacted by a particular minister in the church that made me feel and reinforced how worthless I had been.
I then asked Mr Raptis how he thought I could be satisfied that [X] would be safe in his care given his history of sexual offending. He replied:
My convictions is (sic) against people outside of a particular group of people. I know this is not justifiable but when I was at, say, actively being an exhibitionist, if I was having a problem at home or with someone at home, I went somewhere else and did what I had to do to cope – as a coping mechanism. So the people in my life that I was upset with or distressed with I never actually confronted them about those problems. So one thing that I’ve been developing is the fact that it’s not necessarily confront people but it’s to stand up and say “I don’t like that. That hurts” or “I don’t agree,” and then accept the outcome and there is no more….. So in [X]’s case because he is my son, if I’m having problems, not with him as a person or anything like that, but I’m having my personal issues, I know with him in that environment – and we’re talking about at early stages of supervised visitation – I will feel inadequate.
When I suggested to him that if he was still offending after 20 years of intermittent therapy, including nine years of monthly appointments, that perhaps the therapy had not worked, he said the following:
Look, I do understand your point of view, your Honour, but for me if – because it’s – it’s that compulsion. It’s a reciditive (sic in transcript) problem. It means I’m – I am like either a person trying to give cigarettes, someone who’s been an alcoholic, drug rehab. I fit into the group of people who have alcohol abuse. We all have the reality to face that we have environments like, for example, the alcoholic can’t take the sniff of the alcohol. I literally can’t do porn. I can’t often do certain things because it would either escalate, be out of control, and I have to accept that I don’t have, how can I say – look, I can have a great month, but I still see Mr W because it’s – because I am in the registry and because I am in the registry it’s important that I face up to the fact, well, look, I’m having a good month but then you might get a patch where, you know, this pressure, like, for example, court might distressed me out so I – I’m not Superman.
When I asked him to clarify whether he saw his offending as like an addiction, Mr Raptis replied:
I’ve literally accepted that having this behaviour as a reciditive problem (sic), it is an addiction. I am in group therapy. Like, instead of going to alcohol anonymous or drug rehab anonymous (sic) - most of the guys in my group have been to those programs to help them deal with that part of their life and deal with their sexual behaviour. So I have to accept that, yes, I’m here because I have got – because of the fact that I’m diagnosed with reciditive (sic). It means it’s going to keep happening. So I have to embrace the fact, yes, I have this addiction or this condition.
The following exchange then took place:
Judge: Now, you talk about hurting children.
Mr Raptis: Yes.
Judge: You talk about –– what do you think it’s like for them? What do you think it’s like for a child when you expose yourself to him or her?
Mr Raptis: Because of that – the police are pretty – what do you call it – confronting and they tell you what has happened and – you know – well the first thing you---
Judge: I don’t want to know what the police told you. I want to know what you think it’s like for them.
Mr Raptis: Okay. Complete terror. They – they’re – they feel – yes, they feel that their lives are threatened, and I think the worst thing for the person is they don’t actually know what’s going to happen. They just see something and they – they – they don’t know, “Well, is he” – “What’s he going to do”, and then it’s that panic and that fear and that overwhelming sense that they could die is the ultimate fear that they think. Because I am a huge person, and they just – it – it starts off small, but then once, you know, they realise that I’ve finished and I’ve either, say, walked or whatever, it doesn’t matter. They’re still traumatised. They still feel – and I could – and I don’t – and – and it could be for ever that they’re traumatised. It could be two months. I don’t know. It depends on that person. But I know for a fact that they have been completely impacted by what I did, and it’s – it’s not a good one. It’s a very bad impact.
Mr Raptis’ evidence was given with little, if any, affect congruent with its very disturbing contents.
I did not get the impression that he understands his offending in other than an intellectual sense, and there were many times when it appeared that he was parroting words given to him either by the police or Mr W.
To use the vernacular, I am not convinced that Mr Raptis “gets it” in relation to his long and persistent history of sexual offending against children and young adults.
The expert evidence
I have noted that Mr W provided an affidavit on behalf of Mr Raptis that affidavit having been sworn on 24 July and filed on 25 July 2014.
I note that Mr W sets out his qualifications thus in his affidavit:
2.1 Psychiatric Nurse (1986)
2.2 Bachelor of Arts Degree in Psychology from [University] (1982)
2.3 Graduate Diploma in Behavioural Studies in Health Care from [University] (1991);
2.4 MAPS, Acc. Drug Clinician.
In other words, he does not hold any apparent qualification that would allow him to use the title “Dr”, and indeed, there is no evidence that he has held himself out to do so. Mr Raptis has referred to him as “Dr W” throughout the proceedings, but I note that it is more accurate to refer to him as “Mr W”.
I also note that Mr W was not required for cross examination at trial, which in usual circumstances would mean that his evidence was unchallenged.
However, I note that Mr W’s report was prepared about a year before Mr Raptis was investigated and charged in relation to the allegations made by [A].
In any event, the affidavit sets out the history of Mr Raptis’ attendance upon the writer, saying that his more recent attendance had been for support rather than for therapy.
The relevant portions of Mr W’s report are set out here for easy reference:
8. Mr Raptis has expressed his desire to address various issues in this life that have contributed to his offending in the past and has continued to do so on a voluntary basis. Over that time, we have dealt with issues related to forming relationships, his experiences in prison and his relationship with Ms Sansom and in particular, the events that transpired after this marriage to her. This has been a difficult time to Mr Raptis and as he has been effectively locked out of the Family Court proceedings involving his wife, her ex-partner and their children. However, it would seem that Mr Raptis’ past offending behaviour has been an issue that has been canvassed in these court proceedings with various opinions offered about Mr Raptis.
9. Despite this stress and the issues that have developed since the birth of his son, Mr Raptis has shown no signs that he is not coping with the circumstances or that he is at risk of further offending.
10. While Mr Raptis has a history of sexual offending, this has been mainly exhibitionistic in nature and has reflected an inability to approach woman (sic) in the hope of developing a normal heterosexual relationship. While there have been two or three offences of a different type, these seem to still reflect the same underlying dynamic performing relationships.
11. At no time has there been any evidence that Mr Raptis has any paedophilic interest with his offending behaviour being against post-pubescent women.
12. While Mr Raptis has offended against younger victims in the past, this occurred in his early offending when he was also a teenager, and therefore, these victims were of a similar age to himself. Even then, Mr Raptis seem to be attracted to a mature body shape with secondary sexual characteristics have developed.
13. As Mr Raptis is on the sex offenders Register, he is regularly supervised and in fact, appears to have regularly informed his case manager of his activities, including his relationship and marriage to Ms Sansom with the knowledge that this would involve scrutiny of his situation by the relative authorities (sic). At no time has he sought to avoid scrutiny, nor does he seem to have unrealistic expectations with regard to the Court or his future.
I note that Mr Raptis was seeing Mr W regularly during the period when he offended against [A], who at that time was eight years old, and clearly prepubescent. I can only surmise that Mr Raptis had not disclosed that offending to Mr W at that time, and if that is the case, it raises serious doubts about whether Mr Raptis has been entirely honest with his counsellor, despite his evidence that he had told Mr W everything.
In those circumstances, I can give little weight to Mr W’s report and opinions, despite his long-standing professional relationship with Mr Raptis.
Dr G, Psychiatrist, prepared a psychiatric assessment of Mr Raptis for the purposes of these proceedings, his report being dated 13 March 2015.
I note that that report was prepared some months before [A] disclosed to her mother that Mr Raptis had exposed himself to her in 2012. I note further that Dr G had read the report of Mr W before he interviewed Mr Raptis.
In that context, some of Dr G’s comments and recommendations take on a different hue.
Dr G was not required for cross-examination at trial, and therefore did not have the opportunity to revisit his report in light of the charges levelled against Mr Raptis later in 2015.
Dr G stated the following in relation to Mr Raptis after having interviewed him and having read and considered Ms Sansom’s report at its face value:
Individuals with Exhibitionistic Disorder have the highest recidivism rate of all the paraphilias. Between 20 to 50% of men arrested for exhibitionism are re-arrested within two years.
It is therefore not possible to state that, particularly finding himself in a particularly stressful set of personal circumstances in the future, Mr Raptis would not reoffend.
Furthermore, as described by his treating psychologist and reinforced by himself, Mr Raptis has never engaged in sexual offending towards prepubescent children, and there would appear to be no major risk of sexual offending against children in the future.
Nevertheless, ongoing indefinite counselling and monitoring is recommended, particularly if there is a prospect of Mr Raptis spending supervised time with his son, which despite his hopes, may involve new types of stressors for him.
And later, under the heading “Conclusions”:
Notwithstanding, upon the history available, it would appear that Mr Raptis has, as described, made significant progress in terms of his long-standing Exhibitionistic Disorder.
It would appear to be insufficient evidence to suggest that ongoing supervised contact with his son is contraindicated for psychiatric reasons.
However, as noted by Mr Raptis himself, his past history is significant, Mr Raptis has relapsed in the past when facing significant stressors.
Given that future stressors are almost inevitable, and that even being in a position spending supervised time with his son, whom he has never met, may be life changing, this examiner is of the opinion that Mr Raptis should not have unsupervised contact with his son until a period of time has elapsed and his circumstances can be re-evaluated.
This examiner would advise that if supervised contact was to occur, a reassessment with a Forensic Psychiatrist occur in approximately 18 months’ time after that, with a view to the possibility of future unsupervised time with his son.
Again, in light of the fact that Mr Raptis has, since Dr G wrote that report, been convicted of two counts of committing an indecent act in the presence of a child under the age of 16 years, the Court can have little confidence in the positive aspects of Mr G’s report.
Indeed, events subsequent to the writing of the report only serve to amplify its cautionary prognosis.
Ms N, the psychologist who prepared the family report in this matter, did give oral evidence at trial and was cross-examined by counsel for the Independent Children’s Lawyer and Mr Raptis. Ms Sansom chose not to cross-examine Ms N.
I note that Ms N is the only one of the three experts who knew of Mr Raptis’ convictions in relation to allegations made by [A] at the time of writing a report.
Ms N’s report is dated 31 December 2017 and she notes that: “(i)n his affidavit filed 7 July 2015, Mr Raptis had denied he committed any offences during 2012 and 2013. At interview he also denied the commission of offences and said that in his circumstances, that is as a registered sex offender, if the magistrate who heard the matter had considered him guilty he would have received a jail sentence”.
Ms N reports that Mr Raptis told her that he does not pose a risk to [X], and, because he denied having committed any offences in relation to Ms Sansom’s older three children, including [A], he did not believe “that there might be an exacerbation of trauma for [A] if he was to spend time with [X]”.
Ms N identified three major issues in her report which had been identified during her assessment. They were:
· [X]’s capacity to report if he were feeling unsafe because of his young age and some speech delay;
· the conflict between the parties and Ms Sansom’s fear of having her children removed from her care again after her interaction with DHHS in 2012 – 2013;
· Mr Raptis’ continued denial or minimisation of his prior sexual offences, and the complicating and interacting factor of Ms Sansom’s history of childhood sexual abuse.
Ms N records Ms Sansom as being angry with Mr Raptis for having misrepresented himself to her, and for having relied on commonalities between them in relation to their strict religious backgrounds in order to convince her that he was honest and that he had fully informed her of his criminal history.
Ms Sansom clearly blames Mr Raptis for the fact that her three older children were removed from her care in 2012, and Ms N reports that she was “vehement” in her desire never to give DHHS any reason to remove them again.
I note in that context that Ms Sansom was required to give DHHS an undertaking that she would never allow the three older children to come in contact with Mr Raptis before they were returned to her care in 2013.
Ms N describes Mr Raptis thus:
23. Mr Raptis was punctual to interview. He is a large man who was casually attired in a shirt, long shorts and neat shoes. He commenced the interview by responding to questions but as the time progressed became more verbose and appeared to enjoy the associations he has built with police and DHHS resulting from his sexual offending history.
Ms N records Mr Raptis’ description of his history of offending as follows:
29. In relation to his criminal history, Mr Raptis said he offended 3 or 4 times between the ages of 15 and 24 years, and was charged and found guilty of wilful and obscene exposure. He said he did not reoffend for 10 years while he was in a relationship with (a former partner). He said he was a “suspect on lists” because of descriptions of offenders which matched him. He said he then reoffended when he was aged 33 and 34 years by “propositioning” two teenage girls for sex. He said he pleaded guilty “because I did those things”.
30. He said two years later there were allegations he had touched a work colleague on the breast. He said he got “four months good behaviour and two months suspended”. He said he was extensively psychologically assessed by Dr D and imprisoned for two months. There had also been a matter where he had failed to comply with the sex offenders register reporting requirements (twice) although it was unclear when that occurred and what the outcome was.
31. Mr Raptis said he had to attend Mr P and saw Mr W to work on preventing relapse. He said he had been attending Mr W for eight years and they monitor his “triggers” and work on strategies to reduce his overall stress.
32. He said that all the offence matters had ended prior to reconnecting with Ms Sansom and that he immediately notified about his relationship with her and the children’s presence.
Ms N describes Mr Raptis’ account as being “extremely difficult to follow”, and that she had repeatedly asked him “to stop and slow down”.
However, Ms N records Mr Raptis as having told her that when DHHS had investigated the family in 2012, that they had found “no crime committed” and that he was allowed to return home to live with Ms Sansom and the children.
Ms N did not interview [X] because of his young age and his perceived speech delay, and he was not observed in the company of his father because he had never met him.
Ms N did interview [A] however, and states the following:
39. [A] said she recalled things about Mr Raptis that she told her mother only after she discovered that he had been a sex offender. She said that he had undressed in front of her and said she “could look” if she wanted, but that she did not and thought it was “weird”. [A] also said that she had gone into the bedroom where he was to ask him about something and that he was masturbating (she did not use that word but described the action and used hand movements to indicate what she saw under the bed covers). She said she was aged eight years at the time. She said she “knew” what he was doing and that she thought it was “weird” but she could not recall any feelings she had about it. She said she went to court about it and that Mr Raptis “got community service”.
40. [A] said she had attended counselling at CASA. She said she believed that if they had remained living with Mr Raptis and he had not been reported on, he would have committed some further sexual offences. She said he would sometimes take her by herself into the City and buy her things without her mother’s permission and telling her not to tell her mother. She said she now believes he was “grooming” her.
Under the heading “Evaluation”, Ms N says there are “three issues that stand out in relation to whether [X] should spend supervised time with his father”.
Those issues are said to be the practicality of the father’s proposal in circumstances where no Children’s Contact Centre would accept as a client a parent who was on the Sex Offenders Register for life; the impact on Ms Sansom and on [A], especially in light of Ms Sansom’s appearing “to have a complex personality with a possible priming effect from her history of abuse within her family, overlaid by later difficulties (unknown) between herself and Mr L, and then with Mr Raptis”; and the impression gained by Ms N of Mr Raptis “as continuing to gain some benefit from his history of sex offending even if it was the identity such as it is, with police and DHHS”.
Ms N went further in relation to her impression of Mr Raptis:
44. …. He was also observed to intellectualise as the interview continued, which was experienced as an attempt to distract from the primary issues of the risk of reoffending and the risk to [X] of ever being in his company unsupervised. He seemed engrossed in all the details of his offences and of those he had been suspect in but did not plead guilty to.
It was Ms N’s recommendation that Mr Raptis spend no time with [X] until [X] turns 18, when he can decide for himself whether he wants to pursue contact with his father.
It was also Ms N’s recommendation that Ms Sansom continue to obtain professional support in relation to the way she informed [X] about his father.
Ms N gave evidence at trial by telephone.
It was her evidence that Mr Raptis had been “forthcoming about his history, reasonably open about it”, and that he had denied the accuracy of certain allegations and “didn’t talk about convictions”.
She confirmed that he had specifically denied the allegations made against him by [A], and said, in response to a question about how those denials indicated his level of insight:
Well, I – I think it supports the fact that, as Dr G said, recidivism for this particular diagnosis is – is higher than usual sex offenders and that was – I think a strong course – in Mr G’s assessment and so I would agree. And I think Dr G also said that he couldn’t guarantee there wouldn’t be any recidivism. So bearing that in mind, I think the risk is quite high that he will reoffend, even though he argued technically about whether it was with children or not. The – the teenagers tended to suggest that the age is becoming younger, so he’s much older than teenagers, and his argument was that original offences with children were close in age to him, but that – it appears that there is a trend over the longer period where the offences are against younger people, including the allegation from [A].
As I pointed out to Ms N, those are no longer allegations, as Mr Raptis was convicted after a trial in relation to those matters and found guilty beyond a reasonable doubt.
Ms N stated that she thought Mr Raptis had very little insight into his offending or its effect on its victims. She said that the fact that he has very little insight, even after years of therapy, caused her to be doubtful “that there is any therapy that he could undertake” which would be successful in diminishing his risk of reoffending.
It was Ms N’s opinion that the only reason for Mr Raptis to have even supervised time with [X] was so that he could “identify who his father is”, but that “and this is now going by the evidence that there were convictions as late as 2006, spending even supervised time is contraindicated for [X], and he should know about his father in some other way”.
I note, in that regard, that in fact Mr Raptis’ latest convictions are for incidents that occurred in 2012.
It was Ms N’s evidence that if [X] were to spend supervised time with his father, and then that supervised time were ceased, that situation would be more detrimental to [X]’s development than if he never had any time with his father at all.
She said that in her opinion, Mr Raptis could never have unsupervised time with [X] “because it doesn’t seem to me that there is any known suitable treatment for Mr – Mr – Mr Raptis that I know of anyway”. She repeated that his lack of insight after years of therapy “suggests that there is no other known treatment, not that I know of, which would rectify that”.
Counsel for the Independent Children’s Lawyer then asked Ms N about the impact on the mother and [A] if [X] were to be ordered to spend time with Mr Raptis.
It was Ms N’s view that if Ms Sansom were forced to provide [X] for time with Mr Raptis, her history of past trauma herself might make her more vulnerable to “triggers” in relation to her childhood trauma, and to the trauma she suffered after her children were removed by DHHS in 2012.
Ms N described Ms Sansom as being “hypervigilant” in relation to the possibility of the children being removed again if Mr Raptis were to reoffend and he were spending time with [X]. She agreed with Counsel that “any interaction of any kind between the mother and the father in this case would be detrimental to the mother in terms of the impact it may have on her”, and that the inevitable detrimental impact on [A] which would arise from [X] spending time with Mr Raptis would, in turn, exacerbate the trauma to Ms Sansom even further.
Ms N was then cross-examined by Mr Raptis.
Mr Raptis asked Ms N what it was that he had said about “the two young girls” he had approached at [Railway Station] that had indicated that he was minimising his offending. Ms N replied:
You said that you were – I think you said you were unaware of the age of one of them. You said it was inappropriate, but you didn’t – my impression was that you tried to minimise it and didn’t see it as part of the offending history that you had. In other words, it was technically offending but that you were under stress at the time and it was somewhat reasonable because you offered to pay.
Mr Raptis tried to press Ms N in relation to the age [X] might be when she thought he might be able to meet Mr Raptis and spend time with him.
Ms N replied:
…..well, not when he is a child. So, I guess, when he gets to late teenage years he might – he might want to know more, but that would still be a question about his developmental stage at that stage, about whether he could cope with meeting face-to-face. It’s a long way off.
However, Ms N was reluctant to make any predictions in relation to that issue because it was her perception that [X] had some speech delay and she was unaware of whether he had been assessed in relation to his development. She was very clear that at any stage of his development, [X] would need to be assessed as to his ability to cope with spending any time with his father, before any such time could be considered.
When questioning Ms N, Mr Raptis gave the impression that he was latching onto any small detail that Ms N might provide which would support his wish to spend supervised time with [X].
For instance, he had asked Ms N whether 15 was an age when [X] might be ready to spend time with him, and Ms N’s response had been that [X] would need to be assessed at that age before any decision were made.
Mr Raptis seemed then to focus on the age of 15, and asked several more questions suggesting that Ms N was recommending that [X] be assessed at 15. He only moved away from that line of questioning when I pointed out to him that it was he, and not Ms N, who was suggesting that the issue of [X] spending time with him might be revisited when [X] was 15.
Under questioning from the bench, Ms N confirmed that she had not said in her report that the question ought to be revisited when [X] turned 15. She said the reason for that was based on Ms N’s evidence about the likelihood of relapse for people with Mr Raptis’ diagnosis, especially in light of the fact that Dr G had not known about Mr Raptis’ offending against [A] in 2012.
When asked to clarify her comments about Mr Raptis’ presentation at the time of interview, Ms N said: “I had the impression that – it’s actually hard to articulate this, but I had the strong impression that he enjoyed the notoriety to some degree”.
When asked if Mr Raptis had become emotional at any time during the interview Ms N replied in the negative. She then went on to say:
So he completely minimised the [A] event and, if anything, blamed her, and so it was those factors as well. But I think the length of the interview he impressed me as unravelling as that went on, if I can put it that way. So he became more and more focused on the technical aspects than on his relationship with the police and that kind of thing and I just had the impression that it’s a big identity issue in his life. To some extent he identifies as an offender and there is some gratification in that which was an alert to me that there is a strong likelihood that he will continue to offend.
I found Ms N’s evidence thoughtful, cogent and quite disturbing as to its contents.
The law
In submissions, Counsel for the Independent Children’s Lawyer referred me to the fairly recent judgment of Walters J in the matter of Rhodes and Lewington [2017] FCWA 75 (“Rhodes and Lewington”).
In that judgment Walters J sets out with great cogency not only the history of parenting orders jurisprudence in Australia since the Family Law Act 1975 (Cth) (“the Act”) was amended in 2006, but the law in relation to the question of whether a parent poses “an unacceptable risk” to a child.
In particular, Walters J referred to the decision of the High Court of the of Australia in M & M (1993) FLC 91-979, where the High Court stated that the test in cases of unacceptable risk to a child was “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”.
Walters J then refers to the judgment of the Full Court of the Family Court of Australia in B & B (1993) FLC 92-357, where their Honours, referring to the High Court’s judgment in M & M, said:
… a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the court stated: “even in such a case, however, there may be a risk of disturbance[2] to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
[2] Emphasis in paragraph 232 of Walters J’s judgement in Rhodes and Lewington supra
Walters J then refers to several cases[3] where “the question of the impact on a residence parent of permitting contact (or supervised contact) when the residence parent genuinely believes that a serious, unacceptable risk of harm to a child exists”[4] has been addressed.
[3] Sedgley & Sedgley & Cahill (1995) FLC 92-623; Irvine & Irvine (1995) FLC 92-624; Re Andrew (1996) FLC 92-692; A v A (1998) FLC 92-800; Re W (Sex Abuse: Standard of Proof) [2004] Fam CA 768; and Fitzpatrick & Fitzpatrick (2005) FLC 93-227
[4] Rhodes and Lewington at paragraph 234
In summarising the findings in those cases, His Honour said, at paragraph 234:
Although the test to be applied in contact cases must ultimately be distilled down to determining what order is in the best interests of the child, the court can conclude the contact may not be in a child’s best interest where, for example, there is “… Such tension or hostility between the parent with the care of the child (or his or her partner) on the one hand, and the person seeking contact on the other, that this is likely to be exacerbated by contact, with resulting detrimental effects on the child”, or “… where contact would cause the parent with the day-to-day care of the child considerable anxiety, and this is likely to affect the child adversely”: see Dickie “Family Law” (4th Ed) at pp 450 – 1.”
His Honour then goes on to say, at paragraph 242:
The interrelationship between the issue of (unacceptable) risk (sic) and the effect on the mother of contact if it is to be ordered was clarified by the Full Court in A v A (supra) at p 84,996. Their Honours made it clear that it is important to determine – on the whole of the evidence – whether contact might expose a child to an unacceptable risk (in whatever form). It is only in cases where the judicial officer reaches a conclusion that objectively there is no unacceptable risk that the Court would need to turn to the separate question of the residence parent’s belief in the occurrence of the events in question as a separate matter.
Decision: Issue A
The whole of evidence in these proceedings: including the evidence of the father himself, which did not convince me in any way that he understood either the true nature of his offending or the risk that it posed to children with whom he might come into contact; the evidence of Dr G in relation to the likelihood of the father reoffending; and in particular, the evidence of Ms N, who, I note, was the only expert to provide a report who was aware of the father’s offending against [A] in 2012; leads me to find that the father does pose an unacceptable risk to [X], both because of his risk of reoffending, and because of the impact any time ordered between [X] and the father would have on Ms Sansom and [A].
Issue B. In light of the decision in Issue A, should the father spend time with the child?
Orders in relation to whether a child should spend time with a parent are defined as parenting orders[5].
[5] S64B of the Act.
The law in relation to parenting orders is found in Part VII of the Act.
S.60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
S.60CC then sets out the matters a Court must take into account when deciding what orders to make in the best interests of the child, and I will address each of those matters separately.
Under s.60CC(2) the primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Mr Raptis has never met [X] and can therefore not be said to have any relationship with him at all, let alone a meaningful relationship.
I have found that [X] is at an unacceptable risk of harm from Mr Raptis, and I note that protecting [X] from harm is the most important consideration the court must take into account under s2A.
It is difficult in those circumstances to find that there is any benefit to [X] in having a relationship with Mr Raptis, either “meaningful” or otherwise.
Section 60CC(3) then sets out “additional considerations”. They are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X], who was four years old at the time of the Family Report interviews, was too young to express any views about the issues before the Court.
His young age means that even if the Court knew what his views were, they would not carry any weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
[X] simply does not have a relationship with his father as he has never met him or had any contact with him.
His relationship with his mother appears to be appropriate, close and protective, and no criticism has been made of that relationship by any party.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Ms Sansom has made all major long-term decisions about [X]’s life.
[X] lives with Ms Sansom and has done so for his whole life.
Mr Raptis’ persistence over several years in seeking orders that he spend time with [X], and in doing so in circumstances where he has never spent that time, shows a commitment to spending time and communicating with his son.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The issue of child support in this matter is somewhat convoluted.
It would appear that there was a period of time when Mr Raptis was depositing money directly into Ms Sansom’s bank account for [X]’s support, but the evidence before the Court currently is that Ms Sansom has received an exemption from her responsibility to seek child support from Mr Raptis, and there does not appear to be a current Child Support Assessment.
In those circumstances, Ms Sansom is entirely responsible for [X]’s financial support.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In circumstances where I have found that Mr Raptis poses an unacceptable risk to [X], and where [X] has never met his father, the evidence of Ms N that the likely effect of an order requiring [X] to spend time with Mr Raptis would be detrimental to [X] has particular force.
He has been separated from his father all his life, and knows no other way.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is no evidence that there would be any particular practical difficulty or expense involved if I were to make orders for [X] to spend time with his father, other than that he would incur the cost of professional supervision of that time for a very significant length of time.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that Ms Sansom is unable to meet [X]’s material needs. He is well fed and clothed and lives in secure housing.
Ms Sansom has shown herself able to attend to [X]’s emotional needs, and to have insight into those needs, as she has arranged for [X] to attend a counsellor in order to deal with the fact that he has no relationship with his father, and the fact that his father is on the Sex Offenders Register for life. Although that is not something [X] is currently aware of, there will be questions later in his life, and Ms Sansom impresses as being able to foresee those questions, and to have a mechanism by which they can be explored in an emotionally safe space.
Mr Raptis on the other hand, has been found to show little if any insight into his offending. Indeed he minimises and denies that offending, and even when he spoke of the impact of his offending on its victims, he did not do so in a way that satisfied the court that he has a genuine emotional understanding of that impact.
In those circumstances, it is difficult to see how Mr Raptis could meet [X]’s emotional needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Ms Sansom appears to be a mature and insightful woman, who carries the scars from what she sees as a betrayal of her and her children by her then husband in his lack of disclosure about the detail of his prior offending.
She works full time as a (occupation omitted) and provides for her children appropriately.
Mr Raptis displays considerable immaturity in his denial and minimisation of sexual offending over a period of more than 30 years. He appears to be focused only on himself, his needs and his desires, and he shows no insight into the likely impact on [X] of orders which would provide for father and son to spend time together.
[X], apart from some speech delay, appears to be developing well, although there is little actual evidence before the court in relation to him, as the emphasis in these proceedings has been on the father, his history and his insight into his offending (or lack thereof).
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence before the Court that [X] has any Aboriginal heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Ms Sansom’s attitude to her children, including [X], is that they are vulnerable and in need of her protection, which, in the circumstances of this case, is absolutely appropriate.
The attitude to her responsibilities as a parent is shown in her consistent care and protection of [X] since his birth, in her immediate response to [A]’s disclosure of Mr Raptis’ offending against her, and to her understanding that her children may need some counselling in order to come to terms with Mr Raptis’ (albeit invisible) presence in their lives.
It is only fair to say that Mr Raptis’ attitude to [X] and to his role as [X]’s parent has been impossible to comment on as he has had no opportunity to show that attitude.
However, his attitude to these proceedings, which are all about him wanting to spend time with [X], as well as his evidence in relation to that, indicate that he wishes to be a good, responsible parent to his son.
(j) any family violence involving the child or a member of the child’s family;
Another court has found, beyond a reasonable doubt, that Mr Raptis has committed family violence, in the sense that he exposed himself to [A] and has masturbated in her presence.
In addition, it was Ms Sansom’s evidence that in the aftermath of the marriage breaking down, Mr Raptis kept contacting her against her will when he knew that was the case, and that certainly falls under the definition of family violence found in s.4AB(2)(c) of the Act.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Ms Sansom obtained a Family Violence Intervention Order against Mr Raptis in 2013.
That Order was subsequently varied to include [A], [B] and [C] and, after his birth, [X], as Affected Family Members.
It is unclear to the court whether that order was made by consent, or after a trial, but after an application to extend the duration of the Order, (and again it is not clear to the court whether that application was made in 2014 or 2006/17 or indeed both), it now lasts for an indefinite period.
In those circumstances, if I were to make an Order for the father to spend time with [X], I would need to make an order under s.68P of the Act to allow that to happen.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is almost always preferable for orders made after a full trial to be final orders.
In this case, the duration of any order I make is intended to last until [X] leaves the court’s jurisdiction upon turning 18.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant in this matter.
Decision: Issue B
In this matter I have no hesitation in making an order for [X] to spend no time with his father.
I have found that his father poses an unacceptable risk to him in circumstances where his father has a recorded history of sexual offending lasting more than 20 years, where he has been found guilty of sexual offences against [X]’s half-sister, who lives with [X], and where there is evidence that any time spent between [X] and his father would lead to trauma for both the mother and [A].
Issue C: If so, what time should the father spend with the child?
Issue B having been decided in the negative, the question in issue C becomes moot.
Conclusion
The evidence in this matter could not be clearer.
The father’s record speaks for itself, and his presentation both to Ms N, and at trial, was of a man focused only on himself, and with little or no insight into the impact of his offending, and more particularly, no insight at all into the impact of his persistent denial and minimisation in relation to that offending on the mother of his son.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 16 November 2018
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