SIEGERT & PARKER
[2019] FamCA 480
•19 July 2019
FAMILY COURT OF AUSTRALIA
| SIEGERT & PARKER | [2019] FamCA 480 |
| FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that the father spend no time with the children – Where the father seeks equal shared parental responsibility and unsupervised time with the children – Where the father has pleaded guilty to possession of child exploitation material – Where the Court finds that the father presents an unacceptable risk of sexual harm – Where the father has a history of violence and perpetrated family violence against the mother – Where long term supervision will not be effective or beneficial – Where it is not in the children’s best interests to have an ongoing relationship with the father – Where the children will live with the mother, she will have sole parental responsibility, and the father is restrained from spending time with or communicating with the children other than in specified and limited circumstances. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghtiand Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Johnson & Page (2007) FLC 93-344 M & M (1988) 166 CLR 69 Murphy & Murphy [2007] FamCA 795 N and S and the Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Ms Siegert |
| RESPONDENT: | Mr Parker |
| INDEPENDENT CHILDREN’S LAWYER: | Mr N. Grainger |
| FILE NUMBER: | BRC | 4442 | of | 2016 |
| DATE DELIVERED: | 19 July 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 7 - 9 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms S. Downes |
| SOLICITOR FOR THE APPLICANT: | KLM Solicitors |
| FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S. Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
It is ordered that:
All previous parenting orders be discharged.
The mother have sole parental responsibility for the children, X born … 2011 and Y born … 2013 (“the children”).
The children live with the mother.
The father be restrained and an injunction hereby issues restraining him from spending any time with the children.
Save as provided by this Order, the father be restrained and an injunction hereby issues restraining him from communicating in any way or attempting to communicate in any way with the children or requesting any other person to communicate in any way or attempt to communicate in any way with the children.
The father be permitted to send a gift and/or card to the mother for the children on the children’s birthdays, at Easter, and at Christmas in each year and for this purpose, the mother cause the father to be notified of an address or post office box to which the father can send the gifts and/or cards.
The father shall keep the mother informed of a contact email address for him and notify the mother of any change within 48 hours of any change.
The mother be permitted to obtain and maintain a current and valid passport for each of the children, X born … 2011 and Y born … 2013.
It is requested that the Senior Registrar of the Family Court of Australia provide a copy of this Order and the Reasons for Judgment to the Department of Child Safety, Youth and Women with particular reference being made to the last paragraph of the judgment.
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 Siegert & Parker 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 BRISBANE |
FILE NUMBER: BRC 4442 of 2016
| Ms Siegert |
Applicant
And
| Mr Parker |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Siegert and Mr Parker have two children, X, aged eight and Y, aged six. The dispute between the parents, concerns whether or not the father should be able to spend time with the children.
For the reasons which follow, I have determined that the father poses an unacceptable risk of sexual harm to the children and should not be permitted to spend time with or communicate with them, save by the provision of a card or gift on nominated special occasions.
Issues
The issues identified by the parties as significant to the determination of this dispute are:
a)Does the father pose an unacceptable risk of sexual harm to the children?
b)Was the mother mistaken about what she says she saw in late 2014 and on 27 September 2015?
c)Does the father’s admitted history of violence impact on what parenting order should be made?
proposals
The mother proposes that the father not spend any time with the children (in the event the Court finds he poses an unacceptable risk of harm to the children). She nevertheless proposes that the father be at liberty to send a gift and/or card to the mother for the children on their respective birthdays and at Easter and Christmas in each year. The mother also proposes that she have sole parental responsibility for the children. [1]
[1] The precise form of order proposed by the mother is set out in exhibit 12.
The father proposes that he spend unsupervised time with the children commencing with day time only and gradually increasing to weekends and then week about. The father also proposes that he and the mother have equal shared parental responsibility for the children.[2]
[2] The precise form of order proposed by the father is set out in his amended Response filed by leave on 7 May 2019 as further amended by leave.
The independent children’s lawyer (“ICL”) recommends the father spend ongoing supervised time with the children for up to four hours per fortnight and have fortnightly communication with them via Skype. The ICL recommends that the mother have sole parental responsibility for the children.[3]
[3] The precise form of order recommended by the ICL is set out in exhibit 11.
Background
The mother is 32 and works casually in retail. The father is 41 and employed casually in the building industry.
The mother and father commenced cohabitation in or about late 2010 or early 2011 and separated on 28 September 2015.
The parents have two children, X born in 2011 and Y born in 2013.
The mother was born in Country L and the parties lived together in Country L for a period, commencing at the end of 2012, before returning to Australia in August 2013.
The catalyst for separation was the mother’s alleged observations of the father lying naked on a bed with Y, who did not have underwear on, with his hand between her legs. The mother moved out of the jointly occupied home the day after this incident. The mother’s observations and subsequent actions were informed by her knowledge that the father had possession of a USB containing child exploitation material (“CEM”) that she had discovered in 2012 but done nothing about.
The father denies any wrongdoing. Like so many litigants in this Court, the father had a difficult childhood. His father was a violent alcoholic and his mother failed to protect him until she left his father when he was 8 years old. He then lived with his mother for a period but was seriously neglected. His sister was sexually abused as a child. The father returned to live with his father but that arrangement ended when the father was 18 after a violent altercation which left the father’s father severely injured.
The mother made a complaint to police about her observations on 27 September 2015 and the father was subsequently charged in relation to his possession of a USB containing CEM. The father pleaded guilty to possession of CEM and was placed on probation on 4 April 2018. The father will remain on probation until 4 April 2020. As a condition of his probation, the father is required to attend upon his probation officer fortnightly.
The mother returned to Country L with the children on 4 November 2015, ostensibly so that X could undertake minor surgery at a cheaper cost than in Australia. The father initially agreed to the mother and children going to Country L for an unspecified time. From the date of separation until the mother’s departure to Country L, the father spent time with the children in the mother’s presence.
On 18 November 2015, the mother filed an interim application in the Family Court in City C, Country L and an interim order was made that day granting the mother day-to-day responsibility for the children and ordering supervised time between the father and the children.
In February 2016, the father commenced recovery proceedings pursuant to the Civil Aspects of International Child Abduction (“the Hague Convention”) as the mother had not returned to Australia with the children. The mother agreed to return to Australia and did so with the children in May 2016. The mother and children lived in circumstances of poverty for some time because the mother was not eligible for social security and had difficulty finding work. She relied upon food vouchers for some months. The father did not pay child support other than on a modest and irregular basis.
The maternal grandmother also moved to Australia in May 2016 and she and the mother and children currently share a modest two bedroom villa. There is not a great deal of privacy but they manage as best they can.
The father spent no time with the children from November 2015 until October 2018 but spoke to the children regularly via Skype, although both parties complain about aspects of this communication.
On 5 December 2017, the mother and father agreed to an order for the children to spend supervised time with the father, however, there were difficulties accessing a supervisor given the criminal charges that were then pending against the father.
From October 2018 to December 2018, the father spent one hour each week with the children supervised at a contact centre. Initially, the child Y is said by the mother to have “struggled” with seeing the father again but appeared to settle. The time increased to two hours each week in December 2018 and that is the arrangement as at the date of trial. The children appear to enjoy spending time with the father.
Applicable legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]
[4]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “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” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. [7]
[5] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[6] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[7] See Johnson & Page (2007) FLC 93-344, [68], [71].
The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]
[8]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[9]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]
[10]Banks & Banks (2015) FLC 93-637.
I turn now to consider the significant issues in the context of the applicable law.
Does the father pose an unacceptable risk of sexual harm to the children?
It is conceded by the mother that the evidence does not support a positive finding that the father has sexually abused the child, Y, having regard to the standard of proof required (s 140 of the Evidence Act 1995 (Cth) and the Briginshaw[11] test). Nevertheless, it is submitted by the mother and the ICL that the evidence would not permit a rejection of the allegations as groundless. I agree. It then falls upon the Court to assess the entirety of the evidence relevant to this issue and evaluate the magnitude of any risk in order to determine whether the risk of harm is unacceptable.
[11]Supra.
The evidence relevant to this determination comprises the following:
a)The mother contends that she was suspicious of the father during the relationship as a result of a number of observations made by her, including:
i)His daily access to pornographic material on his computer including from a site entitled ‘teen porn’;
ii)His interaction early in the relationship with a young woman on the internet, who appeared to be in her late teens, involving him asking her to show him her ‘boobs’ and then lying to the mother by saying that the girl was his cousin and that his request for her to show him her ‘boobs’ was a family joke;[12]
iii)An occasion in late 2014 when she walked in on him when he was changing Y’s nappy and saw his head near the child’s genital area with his two arms bent and hands resting either side of the child;[13]
iv)Another occasion in late 2014 (after the previous one) when she walked in on him in the shower with Y where he was crouched over her and had his hand in the area of her upper thigh and groin area and his other hand by his side;
v)A statement by the child Y in March 2015 that “daddy bit my fanny”, repeated on a number of occasions in the presence of the mother and once in the presence of the father;
vi)An occasion on 27 September 2015 when she walked in on the father and observed him lying naked across the bed and Y lying on her back with her bottom (she was without underwear) perpendicular to the father’s face and upper body and his hand was between her legs resting on or near her vulva;[14]
b)Since separation, certain behaviour and statements by Y observed variously by the mother, the father, and the maternal grandmother characterised by them as sexualised;
c)In 2016, Y did a number of drawings which the mother describes as penis shaped objects;[15]
d)The father was charged and pleaded guilty to possession of a USB containing child exploitation images and placed on probation for two years from 4 April 2018;
e)The father communicated with an eleven year old girl, who was a neighbour of the father, in 2017 via private messaging on Instagram resulting in a complaint to the Department of Child Safety.
[12] The mother contacted the young woman and she dismissed the father’s claims.
[13] Exhibit 1 page 5 is a pictorial representation prepared by the mother depicting what she saw.
[14] Exhibit 1 page 3 is a pictorial representation prepared by the mother depicting what she saw.
[15] Exhibit 1 pages 7 and 8.
The father denies any wrongdoing of a sexual nature towards Y or at all and maintains that he is not a risk to the children.
I will consider each of the evidentiary matters raised.
Pornography – throughout relationship
The father does not dispute accessing pornographic material during the relationship but contends that it was adult pornography. The father was nevertheless familiar with a site entitled ‘teen porn’ but maintained that the females depicted were not underage. How the father would necessarily know that was not explained by him. The fact that the father accessed a site entitled ‘teen porn’ may indicate a sexual interest in underage girls but the evidence is far from conclusive.
The father’s evidence about the frequency with which he accessed adult pornography is contradictory. When he participated in a sexual risk assessment on 16 April 2019 with Dr F, a clinical psychologist retained by the ICL to undertake a sexual risk assessment of the father, he said to Dr F that he “infrequently” watched pornography during the relationship and said that he had never viewed it excessively. Yet when interviewed by police on 28 September 2015, the father responded - “Yep” - to the allegation that he watched a lot of pornography. Significant use of pornography was considered by Dr F to be a relevant factor in the assessment of risk.
However, accessing adult pornography is not of itself an indicator of sexual risk, as opined by Dr F, unless children are exposed to it, and there is no evidence of that.
Nappy changing incident - 2014
In or around September or October 2014 the mother says that she walked in on the father while he was changing Y’s nappy. She describes what she saw as follows:
… I saw Y lying on her back on the change table. [The father’s] hands were on either side of the change table and his head was down near her vulva. I would say that his head was approximately ten centimetres away which I thought was unusual and unnecessarily close. Whilst it is possible, he was in the process of wiping her bottom, as soon as he noticed I was in the room he jumped up quickly and appeared very startled.[16]
[16] Mother’s affidavit filed 9 April 2019 at [42(a)].
The mother says that at the time she did not think much about the incident but remembers “it not feeling right”. The mother also provides a pictorial representation consistent with her verbal description.[17] It remains unclear how the father could have been “in the process” of wiping the child’s bottom given the description provided by the mother. I note, in particular, the placement of the father’s hands on either side of the change table and the mother’s description of the father immediately reacting once he realised she was in the room.
[17] Exhibit 1 page 5.
The father told Dr F that he did not know what the mother was talking about (in relation to this incident) but strangely, told Dr F that he remembers that this was the first time he had changed Y’s nappy on his own and he found it challenging. The evidence from both parties during the trial negated that this was the first time the father had changed Y’s nappy. It remains unclear why the father had any memory of this incident if it were entirely innocent.
I accept that the mother has accurately described and depicted what she saw on this occasion and the father’s reaction to her entering the room. Although of itself the evidence does not prove that the father was performing an indecent act upon the child, the incident was of sufficient concern to the mother for her to remember it (as indeed does the father), perhaps informed by her existing suspicion of the father. The mother makes appropriate concessions about the incident in her affidavit and also during cross-examination. She was open to an explanation other than sexual abuse e.g. the father may have been ‘blowing raspberries’ on the child’s abdomen (something he told police he did from time to time). The mother’s willingness to consider other explanations affords her evidence (not just on this particular piece of evidence but generally) a greater degree of weight in my view because she did not present as fixated on a conclusion of sexual abuse.
Shower incident - 2014
Between about a month and three months after the incident just described, the mother walked in on the father and Y in the shower and says:
… When I walked in, [the father] was leaning over Y who was facing the wall away from the door. I saw [the father’s] hands down near her inner upper thigh and groin area and [the father] said that he was washing her. Whilst this is possible and not unusual, [the father] did not have any soap in his hand or any washing utensils or materials. [The father] again stood up abruptly upon noticing me and appeared startled.[18]
[18] Mother’s affidavit filed 9 April 2019 at [42(b)].
During cross-examination the mother said that the father had one hand on Y and the other down by his side. The mother does not recall what, if anything, she said that elicited a response by the father that he was washing her. The mother conceded that she could not see precisely where the father’s hand was on Y, but explained that she could not see the father’s hand below Y’s upper inner thigh and that the position of his arm meant, in her mind, that his hand could not have been on Y’s stomach or lower leg and must have been on Y’s vulva or upper inner thigh.
I accept that the mother has, as accurately as possible, described what she saw on this occasion and the father’s reaction. The absence of a bar of soap and the father’s reaction seems to have heightened the mother’s suspicion. After this incident, the mother maintains that she ensured she was present when the father bathed the children - a claim not consistent with her leaving Y with the father alone to shower on 27 September 2015. Curiously, the father also seems to recall this incident in the shower, although he maintains that he did nothing of an indecent nature to Y.
While the incident described does not prove that the father was performing an indecent act upon the child, it is of some relevance, although minor, particularly the father’s reaction to the mother entering the bathroom and his apparent recollection of what he says was an insignificant event.
“Daddy bit my fanny” – March 2015
In March 2015 the mother says that Y had been complaining about a sore vulva and said “daddy bit my fanny”. The mother took the child to the doctor. The mother says:
… I was uncertain of the truth of [Y’s] statement or what she meant by it but as she had said it more than once and had been complaining of a sore genital area, I considered it appropriate to make further enquiries. [Dr E] did some tests and suggested that I go to the police if I had further concerns. I did not believe that I had enough proof to go to the police but when [Y] commented to [the father] I had been to the doctor with her, he responded with words to the effect of, “I’m surprised child services haven’t come knocking.”[19]
[19] Mother’s affidavit filed 9 April 2019 at [43].
The doctor to whom the child was taken by the mother on 19 March 2015 includes the following in his notes:
Irritated vagina 10 days. Mum says pt said that Daddy bit her there. Minimal erythema on labia. No obvious infection. Mum is uncertain as to the voracity (sic) of the child’s statement. I told her that she should report this to the police if there is any concern in her mind.
The father has given various accounts about whether or not the child made the alleged statement, i.e. ‘daddy bit my fanny’, in his presence. When interviewed by Ms D, family consultant, on 22 July 2016 the father said that the mother told him about the statement made by the child and that he had said to the mother that he would stop ‘blowing raspberries’[20] on the child. Ms D includes the following in her Child Inclusive Conference Memorandum to Court:
The father reported that [Y] uses the word ‘fanny’ to describe her vagina, her buttocks, and the father’s and [X’s] penis. The father indicated that whilst living together as an intact family, the father would blow raspberries on the children’s legs, stomach and bottom, and would ‘tickle’ the children with his beard on their stomachs.
[20] An action involving the placing of lips on a surface and blowing so that the lips move on the surface and a burring noise is made. It is an action not unusually performed by a parent or grandparent on a child’s stomach.
In an affidavit filed by him in the Hague proceedings, the father recalled that “Y did on one occasion say ‘daddy bit my fanny’” when he and the mother were in the lounge room. During cross-examination, the father conceded that he might have heard the child make the statement as alleged by the mother and that, he “possibly” said “I’m surprised child services haven’t come knocking”. He also conceded that he may have said to Y - “Don’t say that”. In contrast to these concessions, the father told Dr F in April 2019 that no one other than the mother had heard the child make such a statement.
I accept the mother’s evidence of the child’s statement. I also accept the mother’s evidence that the father was present on one occasion and that he made the statements attributed to him by the mother. The fact that the child replied in the negative when asked a direct question by police on 28 September 2015 - “Did you tell mum that daddy bit your fanny? - does not cause me to disbelieve the mother. The child was “too young”, as noted by the police, to place any weight on her denial.
Standing alone, the statement by the child may or may not have been a disclosure of sexual abuse. It might simply have been a reference to the father blowing raspberries on her, but it must be considered in the context of entirety of the evidence.
The bed incident – 27 September 2015
This is the most significant incident described by the mother, and led to her prompt separation from the father.
The mother says that, leading up to this incident, Y had been suffering from constipation and urinary tract infections. On this particular day, Y had been experiencing discomfort and, in the early evening, the father offered to take Y to the toilet. After about fifteen minutes the mother went to see what was happening and checked the main bathroom, where the children usually went to the toilet, only to find it empty. She then approached the main bedroom and noticed the door slightly ajar. She then describes the following:
… As I entered the bedroom, I saw [the father] lying naked across the middle of the bed. [Y] was lying on her back with her bottom being perpendicular to [the father’s] face and upper body. [Y] was not wearing any underwear or pants of any kind and she had her feet on the bed with her knees up and her legs spread. From where I was standing in the door frame, approximately 1.5 metres away from where [the father] and [Y] were lying, I could see [the father’s] hand in between [Y’s] legs. The surface of the mattress was approximately fifty centimetres high, so I was able to look down towards where [the father] and [Y] were laying. [The father’s] head was approximately 40 – 50 centimetres away from [Y’s] vagina and his right hand was either touching or in very close proximity to [Y’s] vulva.[21]
[21] Mother’s affidavit filed 9 April 2019 at [19]
As already noted, the mother provides a pictorial representation of what she saw, the room, and where she was standing.[22]
[22] Exhibit 1 pages 1 – 3.
The mother says that she was in “complete and utter shock and disgust” at what she saw and said to the father – “What are you doing?” She says that this surprised the father and he “reacted immediately by throwing his hand up and reaching around for some clothes” and “quickly put them on Y’s upper body and head”. The father told the mother that – “we are just playing”. When asked why he was naked, the father said that he was going to have a shower and then said – “She was not ready to do a poo” and “Nothing happened”.
Surprisingly, the mother took no steps to remove the child. Indeed, she left the room and when she next entered Y was getting out of the shower and the father remained in the shower. The mother says:
… I am unable to explain why I did not simply pick [Y] up and take her away other than me being in complete and utter shock.[23]
[23] Mother’s affidavit filed 9 April 2019 at [24].
The father shortly thereafter took both children with him to pick up a take away meal and was gone for about fifteen minutes. In their absence, the mother called the Department of Child Safety (“the Department”) and another service to seek advice. After dinner that night, the mother slept with Y in her bed while X slept in his own bed. The next morning the mother went to police. Y was interviewed but made no ‘disclosures’. The police accompanied the mother back to the house where the mother retrieved the USB (containing child exploitation material) which she had known about since 2012. The father was taken to the police station for questioning.
The father provides his version of this incident in his trial affidavit filed 3 May 2019, in which he denies that he had been gone for fifteen minutes before the mother entered the main bedroom. He goes on to say:
… the children would commonly use our en-suite toilet.
… the door was and had never been ajar. We didn’t close doors in the house during any activities with the children this included (sic) toileting, showering and bathing. [Y] was infact (sic) in the middle of the bed I was on the edge of the bed and at no time was my head anywhere near [Y’s] (sic) genitals nor were my hands.
[Y] still had her dress on. [Y] did not have underwear or pants on as she had not been wearing underwear pretty much the whole day at home due to her constipation.
As I was in motion getting up to go into the bathroom to turn the shower on as [the mother] walked into the bedroom [the mother] stared at [Y] and said “what’s going on” with a stern voice. [Y] looked like she was about to cry.
I said to [the mother] “what are you going on about”. … I did not say “we are just playing”.[24]
[emphasis added]
[24] Ibid at [17] – [21].
In the father’s affidavit filed 26 July 2016[25] he said:
[25] Exhibit 10.
I lay down on the bed next to [Y] on my stomach for a few seconds and said to [Y], “Stop stalling Munchkin. It’s time to jump in the shower.”
…
As I was getting up to go into the bathroom [the mother] walked into the bedroom. The bedroom door was open. I was not lying down next to [Y] as described no[r] was (sic) my hands anywhere near [Y].
…
I was not touching [Y] when [the mother] walked into the room. I deny touching [Y] near her genital area as alleged by [the mother].
I was getting up to go to the bathroom and was sitting upright on the bed by the time [the mother] walked into the bedroom.
[emphasis added]
The father was interviewed by police on 28 September 2015 and Plain Clothes Senior Constable B includes the following note in his official diary:
Lying on bed across, [Y] was lying, her bottom was level with my chest. Hand on her stomach. She has been having trouble going to toilet. About to get up to have a shower + [the mother] walked in and freaked out.
(emphasis added)
The father took part in a formal recorded interview on 28 September 2015 in which he said:
… I was getting ready for a shower and we were just sitting on the bed and she d-, wasn’t ready to go for a, a, to go to the bathroom to do a number two and she’s going no dad, no dad, no dad and I said well we’ll just sit here ah ready but I’m going for a shower in a second so.
…
And I was laying that way across the bed and I had my hand on her stomach …
… and that was it.
…
And then ah just as I went to get up [the mother] walked in and she just goes, what’s going on? And she freaked out, and that’s all that happened…
(emphasis added)
During his interview with Dr F, the father said that he was not lying down as stated by the mother but was sitting upright on the bed.
During cross-examination, the father conceded that he told police his hand was on the child’s stomach and such a statement is at odds with his affidavits denying his hand was anywhere near her. Given her age and the position of the child and father on the bed it is more likely than not that if his hand was on the child’s stomach, it would have been at the very least near the child’s genitals. To be clear, I reject his evidence that he and/or the child were merely sitting upright.
The father’s behaviour towards Y on 27 September 2015 was at least suspicious and was sufficient to cause the mother to ‘freak out’ and end the relationship.
While her observations on their own may indicate something other than sexual abuse, e.g. the father might have been rubbing the child’s stomach to relieve her constipation, I reject that as a likely explanation for a number of reasons. Firstly, the father did not offer that as an explanation. Secondly, the father has given various inconsistent accounts of his actions on this particular day e.g. he told police on 28 September 2015 he had his hand on the child’s stomach yet in his affidavit filed 26 July 2016 he denied having his hand anywhere near the child.
The child’s ‘sexualised’ behaviour
The following observations have been made of Y:
a)Within the first week after the mother and children arrived in Country L on 4 November 2015, the maternal grandmother says that she was present when Y said to X several times – “[X], you wanna lick my gina? [X], you want to lick my gina?”;
b)On 9 November 2015, and on a number of occasions prior thereto, the mother overheard Y say to X – “[X], want to lick my gina. Want to lick my gina [X]?;
c)On 18 November 2015 the mother saw that “Y was trying to put things in her vagina whilst she was asking me to ‘touch it’ and ‘lick it’”;
d)In May 2016, upon the mother’s and children’s return to Australia, the mother says that Y’s ‘sexualised’ behaviour became more frequent;
e)On or about 12 June 2016, the mother says that Y drew three “penis shaped objects”;[26]
f)On 22 June 2016, the mother says that Y asked the mother to “touch her vagina” after the mother helped her to go to the toilet;
g)On 4 April 2019, the mother says that she observed the children playing a game that [Y] called the ‘daddy and daughter game’. It involved “[X] and [Y] hopping into bed on top of each other with [Y] calling [X] ‘dad’ and [Y] being the ‘daughter’”. The mother says this is not the first time she has seen this and that “we often hear [Y] and [X] saying things such as, “stop, get off me” and “don’t touch my private parts”;
h)On an undisclosed date,[27] the father says he observed [Y’s] hand on [X’s] hip “and I saw her squeeze his genitals … [X] said “[Y] is touching my doodle” and “[Y] also mentions her boobies”.
[26] Exhibit 1 pages 7 and 8.
[27] Reported by the father to the contact supervisor Ms N on 29 September 2018.
Ms D (the family consultant) opined in her Child Inclusive Conference Memorandum to Court dated 25 July 2016:
If the court accepts the mother’s account, [Y] is displaying across a period of time and making several statements of different events that have been repeated over time. These behaviours are very concerning; these are not age appropriate normal sexualised behaviours and are behaviours that may be present in children who have experienced sexual abuse.
(emphasis added)
The father concedes he told Dr F that he had never witnessed sexualised behaviours by Y and doubted that any had occurred. The father concedes that the information he provided to Dr F is inconsistent with the information he provided to Ms N, the contact supervisor.
On this issue, Dr F opines that:
… a child’s sexualised behaviour is typically influenced by a diverse range of factors, including their age, the level of family stress and violence, family sexuality, age of siblings, maternal education and also the amount of time that the child spends in day care. … Further, research has found that children exhibit a range of sexual behaviours from a young age, including touching theirs and others’ private parts …. A portion of children that have been sexually abused do not exhibit any sexualisation… Observing sexual behaviour in a child, therefore, cannot be the sole indicator of whether or not the child has been sexually abused or exposed to inappropriate sexual material. Simply put, children who display sexualised behaviours may have been sexually abused, however they may rather have emotional problems or come from family systems wherein there is a high level of stress and conflict.
(emphasis added)
I accept that while the behaviour and statements attributed to Y may indicate sexual abuse or exposure to inappropriate sexual material, it is not conclusive. It is nevertheless relevant to the assessment of risk when considering all of the evidence.
I also note that a notification was received by the Department on 12 July 2016. The identity of the notifier is redacted and, unhelpfully, there was no cross-examination of any witness about this notification. There is nothing in the un-redacted portion of the report that assists in identifying the notifier although it seems unlikely to have been the mother because the notifier was unaware of the outcome of a court hearing involving the father’s criminal charges on 7 July 2016. As the mother was a prosecution witness in those proceedings, I consider it more likely than not that she would have been kept informed about such matters, but I cannot be absolutely certain of that. Included in the matters reported to the Department is the following:
Y is displaying some sexualised behaviours. … She is also talking a lot about vaginas and penis. She has stated “Daddy has a penis and my hand gets wet.”
I am unable to place weight on this evidence given the uncertainty of its source or reliability.
The child’s drawings
I am unable to place any weight on the mother’s interpretation of the child’s drawings.
USB – possession of child exploitation material
On 4 April 2018 the father pleaded guilty to a criminal offence under s 228D of the Criminal Code Act 1899 (Qld), namely, ‘possessing child exploitation material’ (“CEM”) between 19 December 2008 and 1 January 2013. The father was placed on probation for two years and no conviction was recorded.
The father was charged with this offence on 30 May 2016.
A forensic examination of the USB was undertaken by police and the following facts are not in contention:
a)A total of 157 different CEM images were on the USB, of which 147 were unique and 10 were duplicates. Of the 157 images, 145 were accessible images;
b)All of the images were transferred onto (“created on”) the USB on 20 December 2008 by copying them from another location;
c)The Statement of Facts relied upon during the sentencing hearing indicates:
i)That at least 96 images were “last accessed” on 24 October 2009;
ii)That at least 32 images were last accessed on 4/5 November 2012;
iii)That at least a further 8 images were last accessed on 24 January 2015.
d)The date of last access does not exclude the images being accessed on dates prior to the last access date;
e)The images included depictions of the following:
i)2 year old female in naked frontal pose;
ii)6 year old female digitally penetrating self;
iii)Two males ejaculating into the mouth of a 7 year old female;
iv)5 year old female child being penetrated by penis in the vagina; and
v)The ‘Simpsons’ children depicted as an image of vaginal and oral sex (animation).
f)Two additional documents were located on the USB:
i)A document with the title “[Parker] professional resume” created on 19 November 2008, a date prior to the images being placed on the USB. The document had also been modified by user “[Parker]”;
ii)A document entitled “… monthly hours” created four days before the images were added to the device. This document was added and modified by the user “[Parker]”.
Despite the father’s possession of CEM being a significant issue in these proceedings, the father did not rely upon any affidavit evidence relevant to it other than to pursue his allegations against the mother that he had been set up by her, in that she had known about the USB since 2012 but did nothing about it until 28 September 2015.
The father was cross-examined at some length about his possession of CEM.
The father contends that he lent the USB to a work mate called ‘Mr M’ in Town G when he was living there in 2008. When the USB was returned to him it had CEM on it. ‘Mr M’ was an itinerant worker and not a friend of the father’s and after the USB was returned, he never saw ‘Mr M’ again. The father agreed that the police had suggested to him that ‘Mr M’ was a fictional character. The father maintained during cross-examination that ‘Mr M’ was a real person and contended that he had hired a private investigator to find ‘Mr M’. No evidence to corroborate these claims was produced by the father e.g. a report from the private investigator.
The police investigation cast some considerable doubt about the existence of ‘Mr M’. For instance, the father said he was working on a particular project in Town G with ‘Mr M’ but the police tracked down the site supervisor, Mr K, and the foreman, Mr H, and neither of them could recall a worker on the site by the name of ‘Mr M’ but they did recall the father. The development the father said he was working on commenced in June 2007 and was completed by May 2008 i.e. seven months prior to the CEM being created on the USB on 20 December 2008.
The father has provided numerous different accounts of material evidence relevant to his possession of CEM, which casts doubt on the truthfulness of his evidence on this issue and generally. The inconsistencies include his divergent accounts about many things including:
a)How he came to obtain the USB in the first place:
i)He bought the USB for about $12;
ii)He received the USB from ‘Mr M’;
b)Whether he knew the USB contained CEM:
i)He knew it contained CEM when ‘Mr M’ gave it to him;
ii)He did not know it contained CEM until later;
c)The purpose of lending the USB to ‘Mr M’:
i)For photos;
ii)For movies;
iii)For music files;
iv)For recording music;
d)Whether or not he confronted ‘Mr M’ about it:
i)He did confront him;
ii)He did not confront him;
iii)He never saw him again after receiving the USB;
e)Whether or not he viewed any images on the USB;
i)He did not access any;
ii)He accessed one image;
iii)He did not access any images but he could see a thumbnail of multiple images stacked on each other;
I note that the father was able to give detailed descriptions to police of various images, including likely ages of various children in various images, suggesting access to numerous images;
f)Where the USB was kept;
i)He put it in a laptop bag and it never came out;
ii)It was in a drawer;
iii)It was in a box;
g)Whether he accessed the USB after 2008;
i)He did not access it again;
ii)He and the mother accessed it in 2011;
iii)He and the mother accessed it in 2012;
h)Whether or not the mother was with him when he accessed the USB after 2008;
i)The mother was with him in 2011 or 2012;
ii)The mother accessed it with him while she was pregnant with X (born in 2011);
iii)The mother accessed it with him after X was born;
iv)The mother was not with him at all when he accessed it;
i)How the USB came to be damaged:
i)He threw it against the wall;
ii)He threw it on the floor;
iii)He bent the metal part on the floor;
j)Where he was when the mother retrieved the USB for police;
i)He was on the front porch with police officers;
ii)He saw the mother retrieve it from the wardrobe in the bedroom;
iii)He was in the house getting some clothes;
k)Whether he made an admission to police that he had put additional CEM on the USB after ‘Mr M’ returned it to him:
i)He denies making the admission;
ii)He was confused about the question the police asked him.
In relation to this last matter, the evidence of the admission made by the father to police was not admitted into evidence in the criminal proceedings because it was not recorded, nor did the police officers obtain the father’s signature confirming the admission in their police diary. However, relevant parts of the official diaries of the two investigating officers are in evidence before me and one of the officers was cross-examined.
In Plain Clothes Senior Constable B’s diary at 17.30 on 2 March 2016 he notes:
[Mr Parker] made verbal admission to receiving USB with CEM on it already & adding CEM onto it himself, but declined another interview.
In addition, Plain Clothes Senior Constable B provided a formal statement on 30 May 2016 to this effect:
21. At about 5.30pm on Wednesday the 2nd of March 2016 [Detective Sergeant P] and I attended the [Suburb Q] Police Station and spoke to [Mr Parker] about this mater.
22. During conversations [Mr Parker] stated that the USB was his and it had child pornography on it when he came into ownership of it. He further stated that he had downloaded and added exploitative images of children to the USB since owning it.
23. [Mr Parker] declined to participate in another formal interview and was subsequently arrested and charged for this matter.
The other investigating officer, Detective Sergeant P, also provided a formal statement on 30 May 2016 and stated:
9. On Wednesday 2/3/16 at about 5.30pm myself and [Plain Clothes Senior Constable B] met with [Mr Parker] at the [Suburb Q] Police Station.
10. He declined to be formally interviewed. I recall him stating that he maintained it was ‘[Mr M]’ who had downloaded the child pornography images but he also admitted to adding onto the USB some child pornography images he too had downloaded. He did not however wish to be re-interviewed and say this on record.
During cross-examination the father claimed:
It was a discrepancy, I didn’t actually say that I added to it. My exact wording was that I went to open the file, the click image file, and my computer went haywire and it started to open up stuff and then I got scared and I just pulled it out. And it may have downloaded more images, I wasn’t sure what happened at that stage. And that was my admittance.
Despite the father being reminded of the necessity to challenge evidence he disputed, the father did not challenge Plain Clothes Senior Constable B about the admission made by the father.
Further, Plain Clothes Senior Constable B denied that the father had ever suggested that CEM may accidently have been downloaded onto the USB or that there was ever a mention of the computer going ‘haywire’.
Conclusion in relation to the child exploitation material
Whether or not ‘Mr M’ ever existed (and it seems unlikely that he did exist), the evidence on this issue and, in particular, the various inconsistencies in the father’s evidence, persuades me that on the balance of probabilities the father either downloaded all of the CEM himself or, at least, added CEM to the USB and I find that the father accessed the material on more than one occasion if not many occasions.
The fact that the mother knew of the existence of the USB from 2012 does not exculpate the father in any respect. In my view, the mother already had suspicions about the father prior to her becoming aware of the USB and while her conduct in not immediately handing it into police is worthy of condemnation, I do not find that her eventual surrender of the USB to police diminishes the significance of the father’s conduct or her observations of the father.
The mother’s failure to surrender the USB to police prior to 2015 was the subject of comment by the sentencing judge in the father’s criminal proceedings. It was also a matter canvassed by police with the mother and, in a statement provided to police on 18 January 2016, the mother says that the father - “began telling me stories about he is a black-belt and he took his ex to court for cheating” and “[b]ecause of this I was too scared to take the USB to Police at the time”. The mother also says that she was scared about what could happen to her family and “wasn’t sure what [Mr Parker] would be like to live with from that point on”.
The circumstances of this relationship were complex in that the father was very controlling of the mother and had a history of violence (a fact he made known to the mother) and while the mother had suspicions that the father had an unhealthy interest in minors, she had nothing concrete on which to base her suspicions that her children were in danger until the incident on 27 September 2015. At that time, and despite her own personal fears of the father, she acted to protect the children. I discuss in greater detail the father’s controlling nature later in these reasons.
Father’s online communication with an eleven year old girl
On 22 February 2017 a complaint was made to the Department by a parent of an eleven year old girl. The father admits communicating with this young child via private message on an internet ‘app’ called ‘Instagram’. While there was nothing explicit in the messages themselves, the concern by the parent was that the father was ‘grooming’ the child. I share that concern.
The father said during cross-examination that the child was the daughter of a neighbour and described the little girl as a friend, yet he was unable to state her correct name. He also said that he had known her and the family for some time and had been invited to spend Christmas with them and celebrated his birthday with them. This account does not accord with the Department’s investigation, which refers to the father having only “recently met” the child.
The father did not communicate with the child on the public platform of Instagram but via private message, which indicates an intention to keep his communication with the child a secret.
The father demonstrated no insight into the inappropriateness of his behaviour, even if innocent, as he contends.
Dr F’s report
Dr F assesses the father as being a low risk of reoffending. I do not accept Dr F’s opinion for a number of reasons.
Firstly, Dr F was hampered by a lack of candour and honesty from the father in circumstances where his assessment is significantly dependent upon the accuracy of the father’s self-reporting.
Secondly, Dr F purported to assess the veracity of the mother’s evidence. His assessment is, at least in part, based upon a rejection of the mother’s evidence in circumstances where I largely accept her evidence.
Thirdly, Dr F also concedes in his report that the risk assessment tool adopted by him to assess the father may not be a reliable predictor because
research on sexual offending has largely been undertaken with ‘hands-on’ offenders e.g. rape, indecent treatment of children and:
Much less is known about CEM offenders with no significant criminal histories or previous sexual offence convictions. As such, it is important to be mindful that the commonly used sexual offender risk assessment instruments have not specifically been validated on internet-only or CEM offender samples.
In coming to his conclusion that the father presents a low risk of re-offending, Dr F appears to place considerable weight on the father’s denial of viewing the CEM after 2008/2009. Dr F says:
… A common trajectory for CEM offending by non-paedophilic individuals involves frequent use of ‘regular’ (legal) pornography, desensitisation to such material, curiosity about increasingly taboo subject matter involving children and/or adolescents, and finally, attempts to procure such material. This is then reinforced through sexual arousal and masturbation. It seems plausible to me that Mr Parker's CEM offending consisted of such a pattern. An unusual feature of his offending is that it seems he accessed the CEM an unknown number of times around 2008/2009 and then apparently never did so again despite a lack of legal sanction.…
Given that the forensic evidence establishes only when images of CEM were last accessed (and cannot exclude multiple access on prior occasions) and the evidence indicates that images were last accessed on three distinct dates, i.e. 24 January 2009, 4-5 November 2012 and 24 January 2015, it is unsafe to assume (as Dr F has) that the father did not access CEM after 2009.
Dr F also opines that – “Healthy intimate relationships, in particular, are considered protective against risk of sexual reoffending”.
It is in this context that other evidence about the father challenges Dr F’s assessment of the father as low risk, including:
a)The father has no adult relationship of a sexual nature and has said to his probation officers that:
i)He “hates women”;
ii)He does not need sexual intimacy;
iii)He has no intention of entering into another relationship;
b)He has no close family:
i)He speaks infrequently to his mother and sister and they are not close;
ii)His family do not know of his admissions to police and believe what he has told them i.e. that the CEM on the USB was not his and that the mother set him up;
c)He has no close friendships and is socially isolated;
d)He does not accept any responsibility for offending;
e)He has not and is unlikely to engage in counselling/therapy to address his sexual needs in compliance with recommendations made by his probation officer;
f)He has a history of manipulation or attempted manipulation of others e.g. this was the assessment of his probation officer.
I also note an acute risk assessment of the father undertaken by Queensland Corrective Services on 19 November 2018 assesses the father as high risk on two key areas - “sex and violence”: high and “general recidivism”: high - and that a risk assessment of the father undertaken by Queensland Corrective Services on 29 March 2019 assesses the father as low risk in relation to “sex and violence” and moderate in relation to “general recidivism”. These risk assessments are certainly at odds (at least in part) with Dr F’s overall assessment of the father being a low risk of reoffending.
Conclusion about whether or not the father poses an unacceptable risk of sexual harm
It might be said that if the mother truly believed that the father either was sexually abusing Y, or that the children were at risk of being sexually abused by the father, she would have acted with greater haste, and the fact that she did not should cast doubt on the veracity of her evidence. However, this is a case where the mother was subjected to coercive and controlling behaviour by a man whom she knew had a history of violence and was trained in martial arts. While demeanour of itself is an unreliable indicator of fact, the evidence in this case (discussed in greater detail below) coupled with the mother’s timid and overborne demeanour leaves me in no doubt that she would have found standing up to the father very difficult. Additionally, I accept that she sought to cast doubt in her own mind about what she saw and what it meant.
In this context, I also note Ms J’s observations and opinions that there are “risks around the mother presenting generally as quite naïve in some respects and that she might too readily acquiesce to the father who might put pressure on her to agree to things which might not be in the children’s best interests.”
I accept the mother’s evidence on the following matters:
a)The father was a significant user of pornography during the relationship including on an internet site entitled ‘teen porn’;
b)The father communicated with a young woman on the internet and asked her to show him her ‘boobs’ and then lied about the interaction to the mother;
c)The father, while changing Y’s nappy in late 2014, had his head in close proximity to her genitals while both hands were on the change table and reacted in a startled manner when the mother entered the room;
d)The father, while showering with Y in late 2014, had one hand in close proximity to the child’s genitals and reacted in a startled matter when the mother entered the bathroom;
e)On 27 September 2015 the father was lying naked across a bed and had his hand between Y’s legs while she had no pants on;
f)Y said repeatedly, including in front of the father, – “daddy bit my fanny”;
g)Y displayed repeated sexualised behaviour.
In relation to the sexualised behaviour, I accept the opinion of Ms D that the behaviours were “not age appropriate normal sexualised behaviours”.
I find that the father was responsible for downloading at least some, if not all, of the CEM on the USB and that he accessed it on more than one occasion.
I also find that the father has limited insight into appropriate boundaries and behaviours with children e.g. communicating via a private message service with an eleven year old girl. I was not at all persuaded by the father’s explanation relating to this matter. It may be that he was ‘grooming’ the child.
Ms J opines that the father does not appear to have accepted responsibility for offending and “without responsibility there cannot be change”. I accept her opinion, which is supported by the father’s statements to Ms N (the contact supervisor), and officers from Queensland Corrective Services, and include the following:
a)He maintained that his conviction was a “technical plea” of guilty and “she [the mother] is very lucky she didn’t get charged with the same thing”;
b)He “denies his index offending in that he denies ever viewing the CEM or downloading the material”;
c)He “attempts to minimise his offending by focusing on his ex-wife keeping the USB”;
d)He “expressed frustration at being asked to complete a sexual offending program as he believes he “did not offend””.
I find that the father poses an unacceptable risk of harm to the children i.e. of sexual exploitation or sexual abuse.
Was the mother mistaken about what she says she saw in late 2014 and 27 September 2015?
I have addressed this issue already. I accept the mother’s evidence of what she says she observed.
Does the father’s admitted history of violence impact on what parenting order should be made?
In the proceedings before me, the father sought to downplay two incidents of violence. Although a long time ago, the father has, on two occasions, reacted very violently, severely injuring another child (when he was a child) and also his father.
The records from Queensland Corrective Services attribute the following to the father during group sessions conducted as part of the father’s probationary requirements:
5 Mar 19 …
He presented his autobiography on today’s date as planned, which he chose to reads (sic) from the paper. …
He reported being physically abused by his alcoholic father ([a member of the military]) and an unstable home life. He provided a number of graphic examples …
He reported being bullied throughout his primary school days. He reported one day in particular he was hit repeatedly by a fellow student; he retaliated which resulted in the boy spending two months in hospital and subsequently leaving the school. He reports no memory of this fight.
…
He reported leaving home at 18 after a violent physical fight with his father, witnesses (sic) by family members. He discussed this fight in graphic detail, including the screams of his aunties and his father lying motionless on the ground, his face covered in blood. He had dislocated his father’s knee, fractured his nose, cheek bone and his eye socket. He further stated that his father saw him a few days later (only seeing out of one eye) congratulating him on proving himself and becoming a man…
I find that the above notes are more likely than not to be an accurate reflection of what the father disclosed.
The father, during such sessions, also spoke disparagingly about a number of women including his step-mother, a former manager at his work, the maternal grandmother, and the mother. On 19 October 2018, Queensland Corrective Services records state that the father “continued to fixate on the fact that his ex-wife was not charged with the same offences. [The father] tends to discuss this often and fixate on the fact he has been unjustly sentenced”. This is referred to again on 16 November 2018 and additionally it is noted that the father “is currently trying to get his ex-partner charged…”. The father’s attitude to his probation officer is noted to be “poor” and that the father was “rejecting of supervision” (relating to the requirements of probation) and that the father said, “if you direct me to engage in the [Getting Started Preparatory Program][28] there will be trouble”. On 20 November 2018, the father was noted to be “increasingly hostile in his tone and his statements of anger and disappointment were directed at the writer personally … This behaviour is assessed as [the father] attempting to manipulate the writer…”.
[28] The Getting Started Preparatory Program is a pre cursor program for sexual offenders to therapeutic treatment programs and introduces offenders to treatment and group processes.
During the parent’s relationship, the father subjected the mother to family violence. He was controlling of her e.g. insisting upon knowing where she was at all times. He challenged her about any interaction she had with other people – even an innocent exchange at a supermarket checkout was followed with accusations that she wanted sex from the male she spoke to. The father concedes making this sort of accusation to the mother but alleges it was in jest. I do not accept that. The father clearly detests the maternal grandmother and sought to limit the mother’s contact with her during the relationship. The father frequently demanded sexual favours from the mother up to three or four times a day. He persistently groped her genitals, despite her objection. The father repeatedly demanded the mother’s phone so he could check her text messages. The mother describes her life with the father as one of constant undermining and questioning and is aptly summed up by her evidence that:
He was very controlling over everything I did … going to the supermarket. I couldn’t buy broccoli. I couldn’t talk to the checkout person without being accused of sleeping with them. Just small things. Needing to know where I was going, who I was seeing all the time.
The mother received assistance from a domestic violence service after the end of the relationship and described to them that the father “made me feel like there was something wrong with me” and that while “he was not really physically abusive, but he didn’t know his own strength. He’d go too far and I’d have to yell to make him stop. He thought it was funny”. She disclosed how the father would tell her she was the “CFO” and that “it’s [my] choice but if I didn’t pick his choice, he’d make me pick again”. The mother discussed wanting to buy broccoli for $5.00 but being told by the father that they did not have enough money for that and then the father would buy five bags of chips for $1.00 because they were on special.
During or nearing the end of the relationship the father threatened suicide three times and, on one such occasion, sent her a text message saying he was going to gas himself. Such behaviour is extremely manipulative in my view.
I accept the mother’s evidence of how the father treated her throughout the relationship. Consistent with that finding, and the impact his conduct has had on her, I refer again to the mother’s demeanour throughout the trial. She sat slightly bent forward and avoided looking at the father. She appeared to be a very meek and overborne young woman.
The father’s parole officer describes the father as aggressive, manipulative, and intimidating. I accept that evidence.
The father’s admitted history of violence, in the context of my findings that he has perpetrated family violence on the mother, is a significant factor counting against the father having an ongoing relationship with the children. The father’s capacity to manipulate and the risk of the mother being overborne by the father raise significant additional risks.
Conclusion on what parenting order is proper (s 65D(1))
I have found that the father poses an unacceptable risk of harm to the children, and that his history of violence to others and family violence to the mother increases the risk of harm to the children. Accordingly, the only possible way the children could maintain a relationship with the father is in a supervised setting. The current supervision is privately arranged and expensive. The options for supervision are limited because of the father’s criminal history and the consequent refusal by a number of contact centres to undertake supervision.
Although the children appear to enjoy their time with the father during supervised time with him, I must consider the benefits and detriments for the children of an order for long term supervision.
I am acutely conscious that the ICL, whose task it is to recommend an order considered to be in the best interests of the children, has recommended ongoing supervised time between the father and children, and ongoing Skype communication. However, I am not persuaded that the benefit to the children of maintaining contact with the father in such circumstances outweighs the detriment of long term supervision and the emotional and practical consequences for the children of such an arrangement.
As Carmody J observed in Murphy & Murphy[29] the purpose of ongoing contact must be more than just “contact for contacts sake … supervised time is onerous and inconvenient. It carries with it implications of dangerousness and suggestions of risk against the supervised parent. It can also be costly for parents and demanding on children both physically and emotionally to have to have visits at a contact centre every week or so. Supervision should, therefore, only be ordered where it is really needed, likely to be effective and beneficial to the child. Otherwise it is not only unfair on both parent and child but could be counter-productive or, worse still, positively harmful”. I agree with those observations. In this case, supervision is definitely required as I have found the father poses an unacceptable risk of harm.
[29] [2007] FamCA 795 at [61], [96]
I have doubts about whether long term supervised time or even Skype calls are likely to be effective or beneficial.
Even if supervision protected the children from exploitation and sexual harm, I am not confident that supervision would be able to protect the children from emotional and psychological harm.
According to the father, the children are already questioning the need for their time with him to be restricted and he described X crying at the end of supervised time and pleading with the father to be able to spend more time with him. I consider it more likely than not that the emotional upset and confusion will only increase as the children get older.
Understandably, given the children’s ages, they have not been informed about why their time with the father is limited and supervised. At some future time, as the children become more inquisitive, they will no doubt be informed. At such a time, I anticipate that they will need significant support. I consider the impact on the children of receiving that information to be more detrimental if they have continued their relationship with the father because it will not be consistent with their experience of him, and the father, of course, continues to deny any wrongdoing. The receipt of the information is likely to put the children at the centre of a conflict between the parents. It may put their relationship with the mother at risk and it may be extremely confusing for the children.
Quite apart from the matters already discussed, the father has demonstrated a propensity to say things to the children that are quite inappropriate e.g. that he had to be careful or the mother might accuse him of molesting them (this was said at a time in 2015 when the mother was supervising the time between the father and the children) and, on another occasion, the father showed the children photos of his accommodation and led them to believe they would be spending time with him at his home (this occurred during a Skype call). It would be difficult to prevent inappropriate comments being made, particularly during Skype calls. Additionally, I am not confident that the father would be able to protect the children from his antipathy towards the mother and the maternal grandmother. The father said to Dr F that the maternal grandmother was “the only person in the world that I hate”. The father has been actively seeking to have the maternal grandmother deported. While the father denied feeling any animosity towards the mother, I do not accept his denial because it is inconsistent with what he said to his probation officer, and it is also inconsistent with the father’s considerable focus on pursuing charges against the mother for possession of CEM. The father is fixated on being ‘wronged’ by the mother and accepts no responsibility for his own actions.
Overall I come to the conclusion that it is not in the children’s best interests to have an ongoing relationship with the father. The exception to this will be the ability to provide gifts and/or cards on special occasions. While I have some reservations about even this contact, I note that such an order was pressed by the mother and supported by the ICL. On balance, such limited contact may provide some solace to the children in at least knowing they have a father.
There is no contest that the children will continue to live with the mother and in the circumstances of this case it would not be in the children’s best interests for the parents to have equal shared parental responsibility. Quite apart from the findings already made, the parents have no capacity, in my view, to communicate, let alone make joint decisions as parents.
I see no need to make a non-denigration order against the mother. There is no evidence to justify such an order. In fact, the mother should be commended for her conduct in protecting the children from the circumstances involved in this case to date and I trust that she will, when the time is right, inform the children of relevant information in an age appropriate manner. I see no need to make the other orders sought by the mother or the ICL other than the ability to obtain a passport (if such an order is in fact necessary given that she will have sole parental responsibility and the father will have no time with the children).
Miscellaneous
During the trial some criticism was sought to be directed at the mother for proposing unsupervised time prior to the trial and changing her position only recently. The mother explained during cross-examination that she had felt pressured to agree to unsupervised time and was given the impression that such an outcome was “where the matter was heading”.
In this context, I note that it was not just the mother who seems to have had the perception that the father was going to spend unsupervised time with the children. The father told Ms J on 17 April 2019:
It’s a biased system, it wasn’t going to trial and then the judge changed and its going to trial.
While it is not necessary for me to make any findings about whether or not the perceptions of the parents were warranted, I observe that while there is sometimes a fine line between candid observation and so-called pressure, this case demonstrates, in my view, the need for caution in such matters. The evidence ultimately presented in this case led to a finding of unacceptable risk - a finding that may have been difficult to make at an interim stage. It is also important for ICLs to carefully and meticulously assess the evidence at all stages of the proceedings and maintain an independent view of risk.
Finally, I note that the father informed the Court during his evidence that he has an involvement with ‘therapy dogs’ and sport which involves children. While no particulars were provided by the father, given my findings in this case I propose to request the Senior Registrar of this Court to forward a copy of my Order and reasons for judgement to the Department of Child Safety, Youth and Women so that they may follow this matter up with the father and, if necessary, the organisations concerned. In this context, I note that the father’s private messaging with an eleven year old girl via ‘Instagram’ involved her interest in his dogs.
I certify that the preceding one-hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 July 2019.
Associate:
Date: 19 July 2019
0
4
1