Staker and Temay
[2013] FMCAfam 190
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STAKER & TEMAY | [2013] FMCAfam 190 |
| FAMILY LAW – Best interests of the children – meaningful relationship – proposed Consent Orders refused to be made by the Court – male respondent seeks time with 8 and 6 year old male children – 6 year old has very significant disabilities – respondent previously sexually assaulted young girls in 1996, 2001 and 2009 – on Sex Offender’s Register for life – no face to face time with ordered in all circumstances. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC |
| McCall & Clark (2009) FLC 93-405 Richards & Brown [2011] FamCA 662 Slater & Light [2013] FamCAFC 4 Vigano & Desmond [2012] FamCAFC 79 |
| Applicant: | MS STAKER |
| Respondent: | MR TEMAY |
| File Number: | MLC 10698 of 2009 |
| Judgment of: | Curtain FM |
| Hearing dates: | 20 June, 2012; 12 July, 2012; |
| Date of Last Submission: | 23 August, 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March, 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dunlop |
| Solicitors for the Applicant: | Duane Portway Family Law |
| Counsel for the Respondent: | Mr Trim |
| Solicitors for the Respondent: | Perisic & Thomas Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Eidelson |
| Independent Children’s Lawyer: | Cathleen Corridon & Associates |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
All prior parenting Orders be discharged.
The mother have sole parental responsibility for the children [X] born [in] 2004 (“[X]) and [Y] (also known as [Y]) born [in] 2006 (“[Y]”), (collectively “the children”).
The children live with the mother.
THE COURT ORDERS THAT:
The children not spend any time with MR TEMAY, the respondent.
The children communicate with MR TEMAY, the respondent through cards and letters, sent no more frequently than once per month by the respondent as well as on special days including birthdays and Christmas.
The mother and MR TEMAY, the respondent keep the other advised of their respective mailing addresses and any changes thereto.
In the event that the children or either of them chose to correspond with MR TEMAY, the respondent, then the mother shall facilitate same to an address provided by the respondent.
MR TEMAY, the respondent be at liberty to receive through the mother, a copy of any material, produced by the children’s school or schools for release to parents, including school photos at the expense of the respondent, concerning the children’s academic and social progress. The mother shall be at liberty to anonymise the name, address and any other clear identifying material that relates to the school or schools.
The mother’s solicitors serve or cause to be served upon [X]’s biological father, MR Y a sealed copy of these Orders and he be at liberty to apply within twenty-eight (28) days of service to have these Orders varied or set aside.
Otherwise all applications and responses be dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.The applicant mother advised the court that that father Mr Y knows of these proceedings but chooses not to be involved.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Staker & Temay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE & DANDENONG |
MLC 10698 of 2009
| MS STAKER |
Applicant
And
| MR TEMAY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are strongly contested proceedings that relate to Mr Temay’s (“the father”) Amended Response and Application in a Case for supervised time with two young boys, [X] born [in] 2004 (“[X]”) of whom he is not the father and [Y] (also known as [Y]) born [in] 2006 (“[Y]”) of whom he is the biological father. They are aged 8 years and 6 years respectively.
The applicant and respondent commenced cohabitation in late 2003 and separated in July, 2006. After separation, the mother then unaware of the respondent’s true criminal history, agreed to time with the children until October, 2009.
These are complicated and difficult proceedings. The father has pleaded guilty to the sexual abuse of 3 female children that occurred on three separate occasions in 1996, 2001 and 2009. Further, [Y] is on medication for his diagnosed Attention Deficit Hyperactivity Disorder (“A.D.H.D.”), he also suffers from undiagnosed learning and hearing difficulties, he possibly has autism, which is subject to further testing by Child and Adolescent Mental Health Services (“C.A.M.H.S.”) in December, 2012, and he has an anxiety disorder. Moreover, he also suffers from a non compliance disorder which was diagnosed four weeks before this trial commenced and has an I.Q. of 55 which is likely to remain at that level. He mentally functions at the level of a 3 year old. He currently attends a special needs school at Prep level.
On the first day of the trial the matter was stood down and after some negotiation, the mother and father produced a written Minute of Proposed Orders signed by them. I was advised by Counsel for the Independent Children’s Lawyer that his instructor opposed Order 4 of the Minute of Orders being made. The proposed Orders were:
“1) All previous parenting Orders concerning the children be discharged.
2) The Mother have sole parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006 (“the children”)
3) The children live with the Mother.
4) Subject to the written approval of the Adult Parole Board the Father spend supervised time and communicate with the children as follows:
a) For a 3 hour period at times to be agreed once every 6 weeks with such time to occur in a public place;
b) Via telephone once per week with such calls to be made to the Mother’s telephone;
c) The Father be at liberty to send to the children gifts and letters to a postal address nominated by the Mother and the Mother be permitted to vet all such items prior to giving them to the children.
5) The Mother and her partner Mr M shall supervise all face-to-face time spent between the Father and children and be at liberty to listen to the telephone communication between the Father and the Children.
6) If the Mother has any reasonable safety concerns whist the children are spending time with the Father she may cease all time and communication between the children and Father
7) The Mother shall:
Inform the Father of any significant medical issues concerning the children;
8) Each party advise the other of any changes to their phone number within 7 days of such change
9) In the event Mr M cannot jointly supervise the Father’s time with the children the Mother be at liberty to nominate another third party in lieu
10) The Father be and is hereby restrained by injunction from consuming alcohol 72 hours prior to and during any time with the children.
11) the Mother’s solicitors serve or cause to be served upon [X]’s biological Father, MR Y a copy of these Orders and all documents filed in these proceedings and he be given liberty to apply within 28 days of service upon him.
12) All extant applications be dismissed.
13) Certify for advocacy.
14) Usual s.65DA(2) and s.62B Orders.”
I briefly heard from Counsel for the mother in support of making the proposed Orders. I then heard submissions from Counsel for the Independent Children’s Lawyer opposing the Order being made for the children’s time and communication with the father who, inter alia, submitted:
“We do not consent to paragraph 4 in relation to time spent with the father. We certainly have no difficulty with paragraphs 2 in relation to sole parental responsibility and paragraph 3 in relation to the children living with the mother, but we say that the evidence that is before the court, in relation to the father’s antecedence is such that would cause you to have real concern in relation to he being an unacceptable risk to the children. Now, if he were to have face to face time with them, we base that submission and that conclusion on the subpoenaed documents and our perception that Dr A, in particular, and possibly also the Family Report writer, but I have been unable to confirm this with either of them directly, but I certainly had no doubt that Dr A who has not read the subpoenaed documents transparently from the contents of his report and who is basing his opinion on what he was told fundamentally by the father. It is clear to me, in reading Dr A’s report, that the father was not fulsome in his description of his criminal history and indeed his earlier affidavit material in these proceedings, shows him to be a person who is dishonest in relation to his refusal to acknowledge his crime in relation to his most recent offence.”
(Curtain FM) “So it’s your instructions that the children should only have letters and cards, no telephone communication?”
(Counsel) “…And no face to face contact...”
“…the real difficulty here is that when Dr A is left with the conclusion that the sexual offences of the father were fundamentally in the context of him being inebriated at the time, and when you then look at the – and that they being effectively a couple of isolated incidents; when you then look at the subpoenaed documents and you see that the Queensland offence which occurred, admittedly some time ago in 1996 when the father was 18, occurred in relation to a child who was an extended member of his family...”
“…That extended over a three month period that abuse, twice weekly, Tuesdays and Thursdays, and involved not just that child but she says in the subpoenaed documents that she brought in her younger sibling as well. I’m not suggesting that the younger sibling was offended against, but may certainly have witnessed the offence. Now that – and there’s no mention or suggestion that this is caused by or in the context of the father being inebriated…”
“…The family knew about it and it wasn’t until, according to the subpoenaed documents, 2001 five years later when it came to the attention of the informant at that time that another offence had occurred between the father and another child, this time a three year old child and the informant then notified the police at [omitted] that the informant had thought that police action had been taken in relation to the first offence that extended over a three month period in 1996, but had not. The police then prosecuted him some five years later in relation to the first offence and for that he received a sizeable penalty in the Queensland Courts. And then there’s a third offence against a child who’s six years of age on 25 June 2009 where at the home of a work colleague, whilst he says he was inebriated, he molested a six year old girl - daughter of that work colleague, whilst he was sleeping over, and that’s the offence for which he was most recently imprisoned for something like, I understand, 21 months and he’s now a registered sex offender in Victoria and I understand perhaps in Queensland also.”
“… when he was convicted in relation to the most recent offence, in Victorian Courts, he was placed subject to a Supervision Order and that Supervision Order, which is currently operative, requires that he must not have supervised or unsupervised contact with children under the age of 16, save for interaction which is unable to be avoided in the course of his daily activities, unless he has prior written consent of the Parole Board...”
“…The sentencing remarks of the presiding judge, Gaynor J on 5 December 2011, state that:
“The court is satisfied that the offender Mr Temay posses an unacceptable risk of committing a relevant offence as defined in the Serious Sex Offenders Act 2009 if a Supervision Order is not made and Mr Temay is in the community.” [I should note that I ignored the criminal court’s comments given this court has its own criteria and approach which must be followed].
“…She [the mother] says in her affidavit that the younger child [Y] is a child who’s unfortunately troubled developmentally. She says that he has been diagnosed recently with an intellectual disability by C.A.M.H.S. with A.D.H.D., with severe non-compliance disorder with an anxiety disorder and possible autism…”
“…Well that’s a matter which I say the court should be seized of, that is a C.A.M.H.S. report, up to date report in relation to [Y]’s intellectual and physical development, that’s a matter the court and [Y]’s lawyer should be seized of and aware of in relation to his development, because clearly that’s a relevant issue before the court and something that would be taken into account in the overall…”
Counsel for the father was then heard in relation to submissions in rebuttal of the Independent Children’s Lawyers’ position and in support of the proposed Minute of Orders.
In all the circumstances, it was my view that paragraphs 4, 5, 6, 7, 8, 9, and 10 of the proposed Orders should not be made. Based on the evidence then available to the court, and in particular the submissions of Counsel for the Independent Children’s Lawyer, I was not satisfied that they were in the best interests of [Y] and [X], collectively “the children” without all witnesses being called and their evidence tested. Paragraphs 1 to 3 inclusive are to be made by consent of all parties.
The Evidence
The parties relied on the following documents:
Applicant mother’s material
a)Initiating Application filed on 1 December, 2009;
b)Affidavit of the mother sworn 24 November, 2009 and filed 1 December, 2009;
c)Affidavit of the mother affirmed and filed 24 May, 2012;
d)Family Report prepared by Ms M, dated 28 December, 2011; and
e)Affidavit of Ms J (which was filed by the father) affirmed 3 August, 2012 and filed 6 August, 2012.
Respondent father’s material
a)Outline of Case filed 19 June, 2012;
b)Amended Response filed 19 June, 2012;
a)Affidavit of the father sworn 18 January, 2010 and filed 19 January, 2010;
b)Affidavit of the father sworn 8 June, 2012 and filed 19 June, 2012;
c)Application in a Case filed 20 August, 2012 with the leave of the court;
d)Affidavit of the father sworn 1 August, 2012;
e)Affidavit of Ms B sworn 3 August, 2012 and filed 7 August, 2012; and
f)Affidavit of Ms J affirmed 3 August, 2012 and filed 6 August, 2012.
The Independent Children’s Lawyers’ material
a)Outline of Case filed 8 March, 2012;
b)Family Report prepared by Ms M, dated 28 December, 2011; and
c)Assessment report by Dr A of the father, dated 24 February, 2012.
The applicant mother, Ms Staker
She was called, gave her occupation as “mother”, adopted and confirmed the contents of her affidavits. She also confirmed that she agreed with the proposed Minute of Consent Orders that earlier I had refused to make.
She was then cross-examined by the father’s Counsel who established, inter alia, that the parents separated about a month after [Y] was born and the father saw the children at the mother’s home for the next five to six months, “…a couple of hours, probably three times a week…”
Thereafter, from around February or March 2007 the children had time with the father each weekend from 5.00 pm to 6.00 pm Friday to 3.00 pm to 5.00 pm Sunday until approximately October, 2009, a period of over two and a half years. The children thereafter had regular telephone communication with the father.
The father had not been open and frank with the mother about his prior jail sentence when living together. He did not disclose the sexual abuse of children at all but told her, “…he had been in jail for assault and that he had done his time and that was pretty much it…”
It was her evidence that he told her that he went out one night, was extremely intoxicated and after an argument with a gentleman outside a nightclub he assaulted him causing the other male to be severely injured. He told her that he was in prison for this offence for about 12 months, in Queensland. The mother then explained that subsequently the Department of Human Services told her that he was jailed in Queensland for an offence against a child and that he moved to Victoria where he re-offended. She confirmed that neither [Y] nor [X] knew of his prior sexual offences. She said that one reason that she agreed to the proposed Consent Order is that:
“…I don’t want my children to grow up and hate me because I stopped them from seeing their father. If you look at it from my situation, I came from a broken home. I wasn’t allowed to see my dad between the age of 5 and 13. My dad never did anything to me. When I reconnected with my father, I haven’t spoken to my mother in 15 years because I can’t stand her because she stopped me having a relationship with my dad. I don’t want the same for my children...”
She also said that time with the father at a contact centre was not a realistic option given [Y]’s conditions, “…it would mean that [Y] would actually spend no time with Mr Temay and spend his hour or two hours with Mr Temay throwing a tantrum…” I accept the mother’s evidence in relation to [Y] and his condition and therefore accept also that any time with the father at a contact centre is probably going to fail.
Under cross-examination by Counsel for the Independent Children’s Lawyer, the mother agreed that she had said through her own Counsel that if the matter would proceed she may well change her position from that detailed from the proposed Consent Order, primarily because she may hear things about the father in the running of the trial that changes her view.
There was an exchange between the mother and Counsel for the Independent Children’s Lawyer which went as follows:
“ Not having the knowledge of what he actually did really doesn’t inform you as to the type of person he has been in the past?”
“No, it does not, but the type of person he has been in the past doesn’t necessarily mean that he’s that type of person now.”
“Well, this is the difficulty that I suggest you really have. You see, you entered into a relationship with him not having any knowledge that he was a sexual offender. That's correct, isn’t it?”
“Yes.”
“He told you he had assaulted someone, went to prison for it, did his time, and that was it?”
“Yes.”
“Correct?”
“Yes.”
“So, by omission, he lied to you about a very serious matter. Correct?”
“Correct.”
And further:
(Counsel for the Independent Children’s Lawyer) “So it’s not the case that he is a person with minimal risk at all, I would suggest to you.”
(Curtain FM) “Do you want to comment on that?”
“No.”
“Do you accept that or do you disagree with that?”
“Yes, I accept that.”
The respondent father, Mr Temay
The father was called and adopted his affidavits and corrected a small error in one.
Then by agreement of all Counsel, he was first cross-examined by Counsel for the Independent Children’s Lawyer and they had the following exchange:
“Did you understand the oath that you took not to lie when you swore that affidavit?”
“At the time. Yes.”
“Thank you… when you swore this affidavit and swore it to be true and correct, you knew then that you were lying… and you swore things which were untrue. That’s correct, isn’t it?”
“Unfortunately. Yes.”
“I’m not talking about the few things you’ve just clarified. I’m talking about the very serious matters of your case… Going through your affidavit, paragraph 8(g) on page 3, there you say:
“I had informed Ms Staker of my past convictions at the commencement of our relationship.””
…
“Did you tell her you had been convicted for sexually molesting?”
“No. I hadn’t.”
“On two previous occasions?”
“No. I hadn’t.”
“Thank you. It’s a pretty serious lie, isn’t it? Isn’t it?”
“I guess it is. Yes.”
“Do you know the difference between telling the truth and not telling the truth?”
“Yes. I do.”
…
“Now, paragraph 8(h):
“With respect to paragraph 12, I agree that charges have recently been laid against me. I deny the accusations contained therein.”
That is you deny the allegation that you had sexually offended in 2009 against a girl, [name omitted], a six-year-old girl, the daughter of a friend of yours. That’s the accusation. You were convicted of it. But you denied it?”
“That’s correct.”
…
“..Well, at – at the time, yes. I denied it due to my drunken state of mind at that night. I didn’t recall it. And unfortunately, due to my past unfortunate convictions or conviction – yes – it was more taken on the lines of – it was more of a definite thing than not-definite thing.”
(Curtain FM) “Can I ask this: did you subsequently plead guilty to these offences?”
“Not straight away. No. But I did in the end. Yes. After going – well, after the young girl explained – well, what apparently happened or had happened. And as I – as I explained to my solicitor that, you know, under the influence – I know that’s not an excuse, because it’s not. But under the influence of alcohol, I had no recollection – a lot of recollection of what actually happened that night. So what…”
“Did you plead guilty to the first two offences?”
…
“Yes.”
…
(Counsel for the Independent Children’s Lawyer) “And there’s no question, though, that you were in any way drunk when you molested that family member – if I can put it that – daughter or niece of yours – daughter of a step-sibling, called a niece in some of the documentation. You know who I’m talking about?”
“I know what you’re talking about.”
“1996, over a three-month period. You say 10 times. She says maybe 24 times?”
“Do you have clarification on that?”
“You weren’t drunk then, were you?”
“Do you have clarification on that?”
…
“You weren’t drunk then?”
(Curtain FM) “Wait a second. Wait a second.”
“Does he have clarification when he just – he just goes off?”
(Curtain FM) “Wait a second. Wait a second. Just – just stop. Just stop. Let me just clarify this. All right. This is not a public debate.”
“I understand that. But he’s making it one.”
(Curtain FM) “Okay. Wait a sec. Wait. Just count up to 10. He’s entitled to ask you questions. He’s testing the evidence.”
“I understand.”
(I noted that the father got angry in the witness box a number of times during the trial).
…
(Counsel for the Independent Children’s Lawyer) “When you offended against that niece in 1996 over a three-month period, you say no more than 10 times. But she says something more like 24 times on Tuesdays and Thursdays when you took her into a room, undressed her, you undressed and had her fondle you and you fondled her. You weren’t drunk then, were you?”
“No. I wasn’t drunk. No.”
…
“I see. Well, it’s just, then, a coincidence, is it, then, that on the two occasions in 2001 and 2009, when you were convicted of sexually molesting a three-year-old and a six-year-old, that you say you were so drunk you don’t remember what you did? Just coincidence, is it?”
“I’m not sure how to answer that question.”
“Well, honestly would help, sir.”
“Yes. I know. But I’m…”
…
“It’s just a coincidence then, is it, sir, that even though you don’t have a particular problem with alcohol, as you said, that on the two occasions you’ve been convicted, in 2009 and 2001, of sexually molesting a three-year-old and a six-year-old, both at the homes of respective friends of yours, that you say you were so drunk you don’t remember what you were doing?”
“Correct.”
…
“Now, did you, by the way, tell Ms Staker’s work colleagues when they allowed you to babysit their children that you were a convicted sexual offender against young children?”
“No. I didn’t.”
“Do you think that any of those persons that allowed you to babysit their children would have allowed you to babysit their children if you had told them that you were a convicted – twice over at that stage – sexual offender?”
“Probably not.”
“Absolutely certainly not is the answer, isn’t it, to be fair?”
“Probably not is my answer.”
“Thank you. Probably not?”
“Yes.”
“So, sir, why is that you denied them that vital piece of information?”
“That’s a good question.”
“That’s what they pay me for.”
“Probably the reason why I didn’t tell them – well, probably at the time, I didn’t think that it was appropriate.”
“You didn’t think it was appropriate because they wouldn’t have thought well of you?”
“Probably not, no.”
“They would have not wanted you as a friend?”
“Most likely, yes.”
“And they certainly would not have allowed you to look after their children?”
“Correct.”
“Sir, why did you want to place yourself into a position at all where you – a twice convicted at that stage sexual offender of young children – would be in a position of responsibility for caring for the young children of friends? Why would you want to put yourself in that position?”
“That’s a good question. Why, I’m not sure, but it just seemed to fall out that way.”
““Just seemed to fall out that way”. Is that your best answer? Is that seriously your best answer? Is that it or try again?”
“I guess – no, that’s the only way I can really look at it, that I haven’t told Ms Staker so why tell the others?”
The father again had some difficulty controlling his emotions in the witness box:
(Curtain FM) “No, you continue…Go on?”
“I get cut off again. See, how are you supposed to answer a question when you keep – and then you get cut off.”
“One second, one second.”
“It’s unbelievable, you know. And you want me to be an honest and you know…”
“I am – wait a second. Wait a second. I’ve stopped him. You’re quite right.”
“Fuck me dead.”
“Take your time. Don’t get rattled by this because you …”
“I’m not rattled. It’s just – you know, it’s totally unprofessional. You don’t let someone answer the actual question.”
A further exchange was as follows:
(Counsel for the Independent Children’s Lawyer) “You were also a liar when it comes to the information you give to your psychiatrists. You’re very selective about the information you give to them?”
“In what way?”
“Well, that’s a good question?”
“It is.”
“Page 5 under Forensic History, you told according to Dr G – this is what he reports:
“Mr Temay reported that when he was about 15 or 16 years of age, he committed a sexual offence, molesting his young niece who was about three or four years of age.”
That’s not correct, is it?”
“At the time, that’s roughly what I thought my age was when that event occurred.”
“Well, sir, you were 18?”
“How do you know that I was 18?”
“Because the offence is said to have occurred in 1996 and when were you born? 1978?”
“Correct.”
“Well, sir, that’s how I know. You were 18?”
“I don’t think you know much.”
…
“These sexual assaults occurred over a period of a couple of months. Well, the child herself says three months; do you deny that?”
“No.”
“You don’t. So when he says a “couple of months”, that’s what you told him but that’s not correct?”
“Well, that’s – okay. Yes.”
…
“Understand? That’s not correct?”
“Well, a couple of months – yes.”
“Three months is what the child said; you accepted that.
“The offending was not associated with alcohol…””
“That’s …Put words in my mouth.”
““The offending was not associated with alcohol usage.”
You’ve admitted that; that’s true.”
““When he was about 18 years of age, he faced charges in relation to these offences and as a result, served one year period of imprisonment.”
Well, you weren’t 18. You were 23 – five years later. Big difference, isn’t it? You were 23, not 18.”
…
“ The charges were brought, sir, in 2001/2, not 1996?”
“Yes. That’s correct.”
…
““Apart from two instances of drink driving offences, he said there had been no further criminal offences until the more recent sexual abuse allegation.”
The more recent one being the 2009 offence. Now, what happened to the 2001 offence?”
“What do you mean, “What happened to the 2001 offence?””
“Well, you didn’t tell him about it. In fact, he says that there had been no further criminal offences except for a few drink driving matters?”
“I’m sure that I would have told him.”
…
“And he has just…And I don’t know why it’s not in there because I’m pretty sure that I did tell him.”
…
The witness again seemed to lack self control when he replied to a question as follows:
(Counsel for the Independent Children’s Lawyer) “You say that you were so drunk you don’t remember anything but you do remember that what she says is not true. Is that what your evidence is?”
“I didn’t say that.”
“Well, she says..”
“I don’t know where you’re coming up with this stuff. You must…”
(Curtain FM) “Okay. Can we just clarify this.”
“You know, I tell you what, you must be – you know, you must have come to the library before you come here. You know, and been in the fiction section, you know.”
In relation to the 2009 offence the father said as follows:
“Yes. You know, and I don’t recall all of them but I do recall, you know – yes. I don’t recall touching her on the – you know, the “flower”, what she liked to call it and stuff like that but I do remember, you know, the DS part and stuff like that. You know, her showing me the DS and stuff like that and, you know – and that stuff like that. Now, I don’t know why I don’t remember the rest of it. You know, I really don’t know.”
…
(Curtain FM) “No, no, no. I just want you to answer the question if you can. Maybe...”
“Yes, I am, and I’m just telling him with what actually happened that night, not that it should have been any inclination to what happened that night. But what happened that night was the mother and the father of the daughter while in the lounge room actually had sexual relations in front of me – not that that should have been any – you know, that that’s no excuse for what happened later on.”
“Follow that. My problem is this, and I can understand you being excited by that, but there would be many outlets but one of them that wouldn’t occur to me is touching a little girl like that. Can you explain that?”
“Unfortunately, I can’t. It’s just unforgiveable.”
Upon commencing day two Counsel for the mother advised the court that the mother no longer supported the proposed Consent Order presented on day one. She indicated however that she would not oppose it.
On day two there was continued cross-examination by Counsel for the Independent Children’s Lawyer of the respondent father, which started as follows:
“Now, Mr Temay, yesterday I put to you in very clear terms that I said that you were a serial liar. Do you recall that?”
“I do.”
“You took some offence at that and you refuted that …”
“And before we go any further I would actually – I would like to – I had a big thought about things yesterday and I would like to apologise for my actions, the way I…”
“What actions? What actions are you talking about, sir?”
“The way I…”
(Curtain FM) “I think he wants to make a statement. Let him make a statement.”
“I reacted to the barrister’s – the Independent Lawyer’s questions and stuff like that so I like to apologise to the court for the way I reacted and I plan on answering the questions as best as possible today.”
Counsel for the Independent Children’s Lawyer returned to Dr G’s report:
“And then on page 7, under the heading of Summary, he more or less repeats what you – that statement and in the second-last paragraph:
“Mr Temay stated that he had no recollection for the alleged sexual offences.”
It’s talking about 2009?”
“Correct.”
…
“…the 2009 allegation and conviction is about you staying overnight at a friend’s place – this is your story – getting so drunk you don’t remember what you did that night and then it coming out that in fact you had sexually abused a child in that household; correct?”
“Correct.”
“That’s the 2009 allegation?”
“That’s correct.”
“There is a remarkable similarity though, is there not, between that allegation and the 2001 allegation and conviction, isn’t there?”
“Correct.”
“The 2001 conviction is in relation to you once again staying overnight at a friend’s place, getting so drunk that you say you don’t remember what you did and then being found by the mother of the three-year old that you molested in the three-year old’s room – bedroom next to her after she had been put to bed with her nappy off and you coming up with a cock and bull story about why you were there with her. That’s true, isn’t it?”
“Unfortunately, yes.”
“Yes. Now, how is it you could possibly tell, then, the psychiatrist, Dr G, that the 2009 allegations are so bizarre you could not imagine yourself doing it when, in fact, you were convicted of doing precisely the same in 2001?”
(Not initially answered due to an objection by the father’s Counsel that was not upheld).
…
“Firstly, sir, you didn’t tell him about the 2001 offence, did you?”
“No.”
“And so he wasn’t to know that when you told him – Dr G – that you couldn’t believe you would commit such an offence that, in fact, you had already committed precisely that type of offence in 2001? He wasn’t to know that, was he?”
“No. He wasn’t to know that. No.”
“And he wasn’t to know, then, that when you said, “I can’t believe that I would commit such an offence in 2009,” that that is a nonsense because you had, in fact, committed precisely that type of offence in 2001. That’s correct also, isn’t it?”
“It is.”
“So why is it, sir, that you lied to him? And I’m not talking about why you didn’t tell him about the 2001 offence. Why is it you sought to give some justification to your denials about the 2009 offence by saying, “It’s just not the sort of thing I would do”?”
“The whole purpose that I actually would have said that is because after having two children of my own that’s exactly how I thought – that I couldn’t do anything like that.”
“But you had?”
“And I thought, you know, there was a possibility that, you know, this may not have actually happened but due to my past experiences and the evidence of the young girl there was more likely the chance that it did happen.”
“Well, you were convicted of it, sir. You pleaded guilty to it. It’s not a question of probability.”
“I did plead guilty. Yes.”
In relation to the 2009 offence the father said as follows:
(Counsel for the Independent Children’s Lawyer) “Okay. What you just said to the court is that, “I was so drunk in 2009 that I don’t remember what I did. But the girl says I did something and I accept what she says.”?”
“Correct.”
“Is that right?”
“Yes.”
“Is that a fair summary of what you said?”
“Yes. Yes.”
“All right. Now, can we take it the next step? Do you accept that what the girl said is true?”
“To be totally honest, in answer to that question, part of me does and part of me doesn’t.”
I am concerned that the evidence suggests that the father is minimising his offending and to some degree is in denial of what he did to this child in 2009. He is not taking full responsibility for his actions.
(Counsel for the Independent Children’s Lawyer) “Now, let’s just move on to Dr A’s report, which is dated 24 February 2012. What you told him is contained on page 5 of that report and he says there, in the middle of the first paragraph, that:
“His first offence occurred when he was around 18 to 21.”
Well, that’s true, isn’t it?”
“That’s correct.”
“That it occurred when you were 18 in 1996. Correct?”
“That’s correct.”
...
““He served a year in prison for assaulting a friend’s three or four-year-old daughter.””
…
““At the time, he was extremely drunk and does not remember the incident.”
You’re talking about there the 2001 offence against a friend’s three or four-year-old daughter when you were extremely drunk, aren’t you?”
“That’s correct.”
“That’s not your first offence. Your first offence was when you molested your niece in 1996 over a three-month period. Correct?”
“Correct.”
“So why did you tell him that your first offence was the 2001 abuse and not the 1996 abuse over a three-month period?”
“Because my first offence that was actually criminally recorded was the 2001 offence.”
“Well, sir, in 2001 you were brought to book in relation to both sets of offences, correct?”
“That’s correct.”
“And convicted in relation to both sets of offences. Correct?”
“That’s correct.”
…
“Well, for the third time, why are you telling Dr A that your first offence was the 2001 offence against the three-year-old daughter of your friend, whilst you were so drunk you don’t remember what you were doing? That’s what you told him. You didn’t remember what you had done?”
“Correct.”
“Why did you tell him that? Because that wasn’t your first offence at all?”
“No, it wasn’t.”
“And your first offence was – if it could be put this way – far more serious because the circumstances of it were that it extended over a three-month period, according to the child, twice-weekly?”
“Okay.”
“And that you were not drunk. That’s correct, isn’t it?”
“No.”
“Not correct?”
“No, not the twice-weekly part, no.”
…
(Curtain FM) “Mr Temay, on that occasion, were you sober?”
“Yes. Has he spoken to the child, your Honour?”
“Wait a second. On the ten times you touched this child inappropriately, were you sober?”
“Yes. Yes.”
…
(Counsel for the Independent Children’s Lawyer) “So why did you tell Dr A that the first offence occurred, quote:
“He was so extremely drunk he did not remember the incident.”
That’s what he writes down. You’re talking about the 2001 offence, aren’t you?”
“That’s correct.”
…
“Do you agree it is a serious omission on your part?”
“In a sense.”
…
“ You see, it’s clear, I put to you, that Dr A is operating upon a false assumption that your history of sexual offending against two girls, not three, occurred in the context of you being drunk and we know that’s not true, don’t we?”
“Yes.”
…
“Now, excuse me for my difficulty here, sir, but I just don’t see anywhere any attempt, on your part, to clarify Dr A’s false assumption. There’s nowhere in that clarification of Dr A’s report that you say, “Hold on, he made one really big mistake. I just want to make it clear that Dr A’s assumption that my history of sexual offending all occurred whilst I was drunk.” You don’t do that, do you?”
“No, it’s not there.”
The father was then cross-examined by the mother’s Counsel,
Mr Dunlop, and the following exchange took place:
“Okay, the problem we’re faced with and you will appreciate this is the face to face contact does pose some risk, would you agree with that?”
“Yes and no.”
“When you say, why do you say no?”
“The reason I say no to face – to that is I know it’s not an excuse or whatever the situation is but the reason I do say no is because unfortunately even though my victims have been females, they’ve never been males and I would never do anything to my two boys.”
Dr A
Dr A, this expert psychiatrist was called regarding his psychiatric assessment of the father dated 24 February, 2012 and also in relation to copy subpoenaed material that was forwarded to the doctor by the Independent Children’s Lawyer with the consent of all parties, being documents from Victoria Police, the Department of Human Services and the Queensland Police. It should be noted that Dr A gave this evidence before reading the affidavit and report of Ms J.
(Counsel for the Independent Children’s Lawyer) “Now, in relation to the history that you were given directly by the father, what I suggest your report makes clear is that he tells you in relation to two offences against two prepubescent girls?”
(Dr A) “Yes.”
“And they are offences which I can tell you occurred in 2001, in 2009, and on both occasions he makes it clear to you that he was drunk?”
“That’s correct.”
“And he says had no recollection of the events?”
“That’s correct.”
“He did not tell you then in relation to a 1996 offence against a child who was at that time said to be his niece, at least by way of marriage?”
“I don’t believe he told me about that, no.”
“No. Well, you have no recollection in your notes, do you, of that?”
“No.”
“And there’s no reference to it in terms of him telling you that in your report?”
“No.”
“And he did not tell you then in relation to that offence involving, on the child’s version, the child of six years of age, an offence that extended over three months and occurred each Tuesday and Thursday, when she would enter a room with him, at least on one other occasion with a younger sibling, he would take off his clothes and her clothes, he would have her fondle his penis and he would do the same with her genital anatomy. He didn’t tell you anything about that?”
“I certainly have no record of that.”
(Curtain FM) “You should also remind the doctor that the father said it was only 10 times, not 24.”
…
“Now, you have given evidence in relation to that, and you said that whether it was 10 times or 24 times was not of great significance?”
“I think they’re both serious issues, and small children’s record of – recall of actual dates and times is sometimes inaccurate, and I don’t think there is a great difference between 10 occasions and 24 occasions. There is a great difference between a single occasion and multiple, and it’s the multiple occasions that I think is of concern.”
“And it’s also of concern that in terms of the history that he gave you, as you record in your report, that he – this is on page 8, second paragraph, of your report:
“He denied any other history…”
other than the two he told you about –
“of sexual offending or any feelings of sexual arousal or attraction in response to prepubertal children.””
“That’s correct.”
“Because his explanation in relation to the two offences he told you about were – his explanations were clothed in the context of having been drunk?”
“That’s correct.”
“And thereby he suggests to you that in some way he wasn’t completely responsible for his actions?”
“Well, I – I think what he said was that he was extremely drunk. He – he wasn’t attempting to excuse his actions, nor was he denying that they had occurred, simply that he had no recollection of it because he was so drunk.”
“And the concept though of him denying to you that he had sexual arousal or attraction to prepubertal children is perhaps an argument which he put to you which has less force given the 1996 offences?”
“Yes, I think that’s a reasonable comment.”
“And also the fact that the 1996 offences did not occur in the context of him being drunk also is a matter of great significance?”
“It’s certainly significant. I do note that, in fact, it is around the time that he said he became sexually active, but he was definitely not referring to sexual activity with a young child at that – at that stage.”
“Thank you. Now, Dr G – and what we’re talking about, of course, is what he told you directly?”
“Correct.”
“He has clearly said something else to Dr G and you make mention of that in your report?”
“Yes, I do.”
“But in large part your report is based on the information he gives you?”
“To a very substantial degree because, as I indicated in my report, I had relatively little material before me and – and did not have time to go and inspect the subpoenaed materials that may have been available at the court.”
“Thank you, Doctor. Now, Dr G, in his report, makes reference to a couple of matters that I would like you to comment about. You have also had some – made reference to them. The first is what’s called the “incest taboo”.”
“Yes.”
“And the second is the fact that these are two boys that he is seeking contact with whereas his offending has been in relation to three young girls?”
“Yes.”
“Now, Dr G, in his report, speaks about this on page 9?”
“Yes.”
“He talks about –
“Whilst he may well be susceptible to further re-offending against such potential victims, it would not necessarily follow that he would be at significant risk of breaching the incest taboo and being prone to engage in father/son incestual activity.”
Now, do you agree with that?”
“I think that the two issues reduce the risk somewhat, but I certainly wouldn’t go as far as Dr G appears to go in saying that – that it would not necessarily follow that he would be at significant risk. Even without the incidents that we’ve been talking about when he was 18, I think that the incest taboo, it certainly – what that refers to is that someone may be less prone to offending against their own child than other children, or even stepchildren. That’s certainly widely said in clinical circles. I don’t know how robust the data to support that is, but, nevertheless, there seems to be evidence that stepchildren or other children are more at risk than a person’s own child, and that, I think, is what Dr G is referring to. I wouldn’t see that as sufficiently strong as to almost cancel the risk, as Dr G suggests. Secondly, the issue of gender specificity. Once again, I don’t know of robust evidence in terms of gender preference of a victim child, but I think, again, being boys places them at somewhat lesser risk, but I equally, once again, would not dismiss the risk as a result of that.”
…
“Now, what do you say though now about that paragraph and that statement, that it’s far more important that he abstain from alcohol, in particular, together with the other matters, in the knowledge that, in fact, albeit that when he was 18, he did commit offences against a young child which fell well beyond his 2001 and 2009 offences in that they are not (a) isolated or (b) in the context of being drunk?”
“I mean, I think that it makes me even more cautious or conservative in my recommendations, but it actually does not change my fundamental recommendations.”
Dr A was then cross-examined by the father’s Counsel:
(Counsel for the father) “The question is, Doctor, essentially, do you think – from your knowledge of the matter, from you interviewing my client, etcetera, and what you’ve been told today, do you think his psychological state is such that he cannot control his urges in respect of young children during a controlled, supervised, limited time with children?”
“I heard nothing to suggest that he is unable to control those urges, although as we’ve discussed previously in evidence, the issue of the offences that occurred in 1996, when he was not intoxicated, are relevant in that regard. I think that the risk in the context that you’ve described, where he’s supervised by two people who know his past record, he is – in fact, my understanding is he’s not allowed to drink alcohol anyway, but that part of the condition would be not drinking 72 hours beforehand, and in a public place, I think the risks of him engaging in such behaviour are very small.”
…
“…the thing that I did overlook was – although I had included it even in my own summary, I did not give sufficient weight because I hadn’t heard about that directly from Mr Temay, but I certainly did not overlook Dr G’s report.”
“Yes?”
“In fact, I – I took issue with it, as I’ve already indicated in evidence and in my report, because I felt that Dr G underestimated the risk, even without allowing for that other issue.”
…
“Sorry. There is one point that is not correct at least in what I said. Stepchildren are more prone to being sexually abused than biological children and, in fact, the vast majority of child sexual abuse occurs with someone or by someone who is known to the child and is often residing within the home of the child. So the – the so-called stranger danger is much less of a danger quantitatively than the danger from a familiar figure, be it a stepfather, an uncle, etcetera. The question of how much more common sexual abuse of a stepchild is than a biological child: again, I cannot put a quantitative figure on that…”
…
“And biological children as opposed to just a complete stranger child down the street?”
“Stranger children – as I’ve said already, complete strangers are less likely to be abused because the vast majority of child sexual abuse occurs with a child who is known to the perpetrator, be it a family member or a neighbourhood child. Complete strangers are relatively rarely abused.”
Ms M
The author of the Family Report dated 28 December, 2011 was called. She confirmed that after preparing her report she received some copy subpoenaed documents provided by the Independent Children’s Lawyer with the consent of all parties being documents from Victoria Police, the Department of Human Services and the Queensland Police. She also confirmed that she had a copy of the report of Dr G made in 2010 and the report of Dr A made early 2012. It should be noted that Ms M gave evidence before reading the affidavit and report of Ms J.
She was asked whether she stood by the recommendations in her report and she said “…No, based on a number of additional pieces of information that have become available to me, I had formed a different view in relation to some of those recommendations...” She went on to say that she is no longer of the view that supervised contact at a contact centre would be appropriate.
Counsel for the mother then said to the witness that his client now had changed her position yet again and that, “…there should be no face to face contact with [Y] or with [X] for the time being…” The expert was then asked whether she would support that position. She said in answer, “I would based on the information available to me now, yes…” I then asked the witness to clarify why she adopted this new view and she said:
“…I think based on a number of – considering all the pieces of information that did come to me over a period of time and they were quite fragmented and I think that’s always a concern in a very complex, difficult situation such as the one – the matter before the court. And, I guess, it’s very difficult to say with any confidence what should occur but I think in the end, I’ve concluded that there are unacceptable risks to the children’s safety of spending that face to face time. And, I guess, another practical consideration that I didn’t take into account at the time of writing my report in December last year was that the contact centre may not be in a position to have Mr Temay on the premises because of the conditions of his Supervision Order. I hadn’t viewed the Supervision Order at the time of my interviews with the family and at the time of my submission to the report so I – to the court, pardon me. So I wasn’t completely aware of that being a condition on the father’s Supervision Orders, so I think that’s a very serious consideration in this matter. In addition, I was concerned that some of the information when I compared the two reports from the two psychiatrists, Dr G and Dr A, were slightly different and I was concerned that there was a possibility that the father was minimising some of his child sexual offending history and that became a concern for me. And, I guess, another concern in relation to the material presented in those psychiatric reports was the father’s description of his past offences occurring when he was affected by substances, namely, alcohol. And my concern was that that may well be the case but that did not suggest to me that the father was necessarily taking responsibility for his offending behaviour which made me concerned about the possibility of behaviour change and any subsequent risk to the children.”
Counsel for the mother then asked if there is no face to face time with the father what would be the negative impact upon [X] and the expert said:
“…I think that’s a very real concern for the children, particularly [X]. And that made this a very difficult report, I suppose, for me to prepare for the court because I was very aware of the child’s – particularly [X]’s sense of connectiveness to his father and I was also aware of the potential implications for the child’s relationship with the mother and I think that remains problematic in this matter. I think there are a number of supports and I know I’ve suggested perhaps support through a service such as V.A.C.R.O. and I believe they may be in a – still be in a good position to support all the family members if the court makes a decision that the father is not to spend any face to face time with the children. I also think some of the ways in which the father has been able to communicate with the children during his incarceration – and I’m not aware of what has happened since his release from prison this year but I believe he has shown a very genuine commitment to maintain a relationship with the children and that has been of benefit to the children. So I’d certainly recommend that there – some communication be maintained with the children and the father unless the court is aware of some other material.”
(Curtain FM) “What, in the form of cards or letters, something like that?”
“Something like that, your Honour, yes.”
…
(Counsel for the mother) “And what would you say to…the continuing telephone communication between [X] and his father?”
“I think that’s a difficult one in light of that additional material. I’m – I suppose, the father would pose no physical risk of harming the children, so that would be – unless there’s information that I’m not aware of and I’m – I guess, my hesitation is that, as far as I’m aware, there hasn’t been any material presented from the father’s sex offenders treatment programs that he has – I understand he has participated in and is possibly still participating in. So there may be additional information about the precise nature of his offending and I believe that’s quite critical in this matter. So, I guess, I – based on what I know at the moment, I wouldn’t be opposed to recommending phone contact continue but there may be additional information that the court needs to seek or the court is already aware of at this point, your Honour.”
The Family Consultant then went on to say the following:
(Counsel for the mother) “…would the information that you’ve read and you’ve been given provide or give you any type of hesitation in recommending any Skype time, so an internet connection type arrangement whereby he can see his father and his father can see him and talk on the internet, I guess, that’s probably the best way to describe it?”
“I think some of the technology is quite difficult and I think it poses a lot of problems for the court in making decisions. Again, there’s no actual physical risk of harm to the children through Skype but, I guess, I’m aware of, you know, other possible risks that might present themselves. I guess, I’d need more information to be able to make any recommendation with any confidence on that one.”
“Okay. You also recommended at page 28, recommendation number 5, that a specialist forensic assessment be conducted to ascertain Mr Temay’s risk to re-offending or re-offending against children. That hasn’t been completed. Are you still in a position to make those recommendations that you’ve made to the court in light of that?”
“Very difficult. In my understanding of Dr A’s report was that it was to be a psychiatric assessment of the father but, in actual fact, it is a forensic psychiatric assessment of the father. As both Dr A and Dr G say in their reports, they don’t have extensive knowledge about the father’s child sexual offences and his history and nor about his involvement in treatment programs. I think Dr A makes mention of that in his report, from what I can best recall. I would say that it would be appropriate for someone with more extensive knowledge of that material to make a more comprehensive assessment but I’m not sure if that would alter my recommendations at all at this point.”
Ms M was then cross-examined by Counsel for the Independent Children’s Lawyer:
“You worked at [omitted] for many years?”
“That’s correct. I worked at [omitted] since 1999, which is the centre for the assessment and treatment of child abuse.”
…
“I just want to ask you then in relation to the issue of incest taboo?”
“Yes.”
“Both of the psychiatrists have made some reference to it, that obviously meaning that there is a natural human taboo, I suppose, in relation to having sex with your own family members”?
“Yes.”
“And Dr G, and perhaps to a lesser degree, Dr A, in his evidence to this court, have both said that that provides some level of protection. What do you say about that?”
“I guess I have a slightly different opinion. I believe that that is a factor that’s relevant in some child sexual abuse matters, but I would also say there’s very much an issue of what’s called in the literature “opportunity”. So if someone who, I suppose, has a predilection or a past history of child sexual offences and they’re presented with an opportunity to reoffend, that they may take that opportunity, and that’s written about extensively in the literature, including some recent and current research in Australia that would quote that material.”
“Opportunistic, even in relation his own children?”
“Potentially. I – I don’t think we can rule that out, and I suppose the other thing that I’m aware of – and I think it’s relevant that Dr G wasn’t aware when he prepared his psychiatric assessment of Mr Temay, of the past incident in Queensland, where there was a child who was, I guess, family in the broader sense of the word, a – a stepmother’s grandchild, and that that child was one of the victims, and I suppose I’m – I’m struck in this matter that [X] is also actually a stepchild rather than a biological child of
Mr Temay, and I guess I’ve developed some concerns about the risk associated with that…I believe there’s a whole lot of different patterns of offending sexually against children.”
“What do you say in relation to the other reference made by Dr G in particular, that the fact that these two children are young boys and that the father in the past has offended against young girls adds some level of protection?”
“That – I’m very aware of that issue in general terms, but also as it relates to the matter before the court today, your Honour. I suppose that there are two schools of thought in the field, and one is that – that child sexual offenders have a preference or predilection for a certain age or gender of children. There’s also the other school of thought which, you know, I spoke about previously in relation to opportunity; that is, there’s opportunity to offend against children and there’s pre-existing vulnerabilities that have contributed to prior offences, then there is always the risk that there will be re-offending.”
…
“Did he attempt to give you a comprehensive history of his offending?”
“Mr Temay was aware, as far as I can best recall, that I had received some material in relation to that and we didn’t speak about it in a great deal of detail, but I…found him to be honest and open, but to an extent…I took into account some of what the father spoke to me about, but also some of the written material I had been provided with. But there were certainly gaps in that information, your Honour.”
…
“You read both of the reports by Dr G and Dr A?”
“Yes.”
“What is clear is that in neither case has the father given to them a comprehensive history of his criminal offending…”
“Yes.”
“Told him briefly in relation to the 1996 offence and the 2009 offence, which was what Dr G actually prepared a report about, these family law proceedings?”
“Yes.”
“Did not tell Dr G about the 2001 offence?”
“Yes.”
“Dr A was told by the father about the 2001 offence?”
“Yes.”
“…and 2009 offence, but did not tell Dr A about the 1996 offence?”
“Yes.”
…
“And it’s clear that the father did not tell Dr A about that earlier offence and the father then received a report, we all did, in fact, from Dr A which places some significance on the issue of alcohol and the isolated incidents that were said to have been 2001 and 2009?”
“Yes.”
…
“1996 is an altogether different type of offence, is it not, in the sense that it is not alcohol‑related? There’s no alcohol involved in that offence. That’s acknowledged. And, secondly, it is not an isolated one-off, opportunistic perhaps is – in the way you might have described?”
…
“But my overall concern is that the father may well have minimised his child sexual offending history, and when we look at it as a whole, it’s quite extensive, and I suppose I would be concerned that he withheld some of that very important information when he spoke to the writers of those two forensic psychiatry reports. I would be very concerned, and that’s one of the reasons I’ve – as I’ve already stated to the court, your Honour, I have formed a different view in relation to the face to face time of the father with the children.”
…
“But [Y] has particular developmental issues?”
“Yes.”
“That might make it more difficult for him to have that type of telephone communication with father?”
“Yes, and given his young age.”
“And also she says [Y] doesn’t really remember Mr Temay as a father?”
“Well, I guess that makes sense to me, your Honour, given I’ve met [Y], I’m aware of his young age and his, you know, considerable young age at the time of his father’s incarceration, and coupled with those developmental delays that I was also aware of, your Honour. Yes. Phone contact is problematic for young children.”
…
“But the downside of that is clearly that it is very hard to limit a young child’s relationship with the father by the constraints of a telephone call. It is really dangling the apple in front of the child but not letting him eat it?”
“I think it would be very difficult for both the children to understand, you know, any of those decisions and the rationale for them, given their young age and their limited understanding of these issues and how appropriate it is for them to understand that, you know, the issues at the heart of this matter, your Honour. I think that the support of a service such as V.A.C.R.O. – and I specifically would recommend V.A.C.R.O. because of their extensive knowledge working with families including children around similar issues. I think that sort of support will be required for both children regardless of the court’s orders in relation to telephone time with the father or whether that’s decided against. I think they will really require that level of support to understand no matter what because even if the court was to make a decision in favour of supervised time for the father at a contact centre, that’s still not, you know, the way that most children communicate with a parent. So I think either way these children are going to need a lot of support, and Ms Staker is going to need a lot of support to try and understand in an age‑appropriate way their experiences of and their level of communication with Mr Temay.”
In an attempt to clarify the evidence of Ms M I asked the following question:
“Well, given those difficulties, you sometimes wonder whether, in fact, telephone communication of any level, whether it’s frequent, infrequent or not, would be beneficial to the welfare of that child. And then you have the issue of, well, if it’s not for that child, should it be for both, and not the other child, because the younger child would be aware of the older child “speaking to Dad”. Are you able to comment on that? Given that there’s real doubt that [Y] will benefit from any telephone communication with the father, in those circumstances would you consider it for the other child and in the absence of the younger child?”
“It’s very difficult, but I was – you know, I have a very clear memory of [X], the older child, your Honour, and he is very connected to his father and has a lot of very fond memories of his father. And I think if he was to have no communication whatsoever with Mr Temay, he would require a great deal of support, not just the ongoing support of Ms Staker – I have every doubt that she has been able to support both these boys through, you know, these difficult experiences – but also professional support. I think that would be very important. I don’t know what sense [X] would make of either having no telephone communication or no communication whatsoever with his father, nor am I sure what sense both children would make of one of them having a separate arrangement to the other sibling.”
In cross-examination by the father’s Counsel the expert was asked to comment on supervised time with the children. She replied as follows:
“...I don’t find it to be an acceptable risk, if that helps to clarify my position, your Honour. I appreciate that if there’s some supervision of the time the father spends with the children that there may not be immediate risk of him offending against the children. But I have never been comfortable – and I stated this in my report – about the mother or, I guess, any non‑professional people supervising the father’s time with the children because I think there are subtle ways in which inappropriate communication can occur with children, and I would still not support the position of the mother or her partner, or any other person providing any of that sort of supervision of the father’s time.”
The writer of the report also said the following:
“I also would refer you to the limitations of the report, at the beginning of my report, which is that it’s based, obviously, on information available to me at the time of preparation of that report, which was six or so months ago now, and I’ve already given evidence before the court today, your Honour, explaining that I’m aware of a whole lot of other information, aside from
Dr A’s report, which has led to me forming the opinion that it is no longer appropriate for the father to have face to face time with the children at a contact centre or otherwise.”
…
(Counsel for the father) “Well, I assume that you have formed this new view that there shouldn’t be any time because – that my client has been dishonest at times and has withheld information from various professionals at times. Is that true?”
“There are a number of reasons why I’ve formed that opinion, which I have outlined to the court already, your Honour. One would be that I think the father has minimised his past child sexual offending history and that it has been presented in quite a fragmented way that has made it very difficult for any of us to form a view about the overall pattern of offending and the extent of offending. I also have now become aware of the Supervision Order, which very clearly states – and we can – you know, obviously that – that was made with regard for the father’s most recent child sexual offences, for which he was incarcerated in Victoria, that it’s not appropriate for the father to have supervised or unsupervised contact with children for three years – I believe that Order is due to run, so three years from January 2012. And I suppose I have some different – draw some different conclusions to some of the witnesses in relation to what we do know about the father’s offending, and I have already made reference to that, I believe…”
She was also asked the following question:
“So in that regard would you be surprised to hear that in the witness box today he said that he’s disgusted with what he’s done?”
In answer the expert said as follows:
“No, I wouldn’t be surprised. I think those two things are not mutually exclusive. He might be able to give evidence that he’s disgusted with what he has done, but I guess my concern is about the minimisation. Apart from only giving partial information to those two separate psychiatrists I’ve already discussed, one of my other concerns, as I’ve already discussed in evidence, is Mr Temay saying that some of those offences meant that his – I guess he was disinhibited because of the use of substances – alcohol – and my concern is that that might also indicate him minimising taking responsibility for his offending behaviour, your Honour.”
…
(Counsel for the father) “By saying that he’s minimising his crimes, essentially what you’re saying is he doesn’t think they’re as bad as they are; is that right?”
“In part, but it’s probably more than that. It’s about taking full responsibility for what he has done. I think that’s probably more essential than his views about they’re not as bad as others might think. I think it’s about taking responsibility for the full impact of what he has done in committing those offences against children.”
“In your Family Report – again, going back to [X] – you’re saying that you can remember him very clearly saying he wants to see his Dad. I can’t remember the exact words, but it was “a lot, a lot, a lot” or something like that. Just how strong is his desire to see his father?”
“Well, it’s obviously very strong. I think I made that very clear in my report, your Honour, but – you know, that’s – I guess that’s not the only consideration here.”
…
“…I suppose I don’t really think that the two things can easily be compared. We’re talking about very – very different issues in relation to these children, though I – I accept and I’ve – you know, I’ve consistently stated that [X] in particular will be confused and distressed if he’s to have no face to face time with his father. That’s – you know, I’ve no argument about that. But on the other hand there are the issues of the children’s safety and wellbeing in terms of any other risks that the father may pose because of his history of child sexual offending. And I suppose not having heard all of Dr A’s evidence my concern would be about the possibility of grooming behaviour. I don’t imagine Dr A is envisaging or probably any of us are envisaging that, you know, the father would attempt to sexually abuse the child on some sort of supervised time, but…”
“So you’re concerned of grooming behaviour?”
“Well, I’ve got a range of concerns but overall I’ve formed the opinion that the risk to the children, as I’ve stated, in my view is sufficient for me to change my recommendations.”
Hearing 12 July, 2012
The matter was then adjourned part heard to the Melbourne Registry on 12 July, 2012. I was expecting to spend this day hearing final addresses from the three Counsel.
However, Counsel for the father sought to re-open his case and sought an adjournment because:
a)the father now has a proposed third party supervisor as the mother and her partner were no longer prepared to do this. I was informed it was to be the father’s support worker, a Ms B who works at V.A.C.R.O. who he sought to call to give evidence; and
b)he only recently obtained a report from a Ms J regarding the sex offenders program that the father completed when imprisoned. He wished to adduce a copy of that report and call the author.
Given it was not opposed by Counsel for the mother or the Independent Children’s Lawyer and the principles of natural justice, the following Orders were made:
“THE COURT ORDERS THAT:
1. The matter be adjourned part heard to this Court at the Dandenong Registry on 20 August 2012 at 10.00 am for Final Hearing, with an estimated hearing time of two days (“the Adjourned Final Hearing”).
2. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
3. Within 21 days, the Respondent Father make, file and serve affidavits of Ms J and Ms B, annexing their reports.
4. Upon the completion of Order 3 herein, the Independent Children’s Lawyer (“ICL”) is to forward to Dr A and the Family Consultant, Ms M, copies of the reports of Ms J and
Ms B for their consideration and comment; and is to ensure that Dr A and Ms M are available during the Adjourned Final Hearing for further examination by telephone.5. The costs of the Applicant Mother and the ICL of this day be reserved.
6. The Respondent Father make, file and serve a Financial Statement within 21 days.
AND THE COURT NOTES THAT:
A. The Father intends to swear a further affidavit prior to the Adjourned Final Hearing, however will refrain from filing it with the Court. The Court contemplates that Counsel for the Father may make an Application for the Father to give further evidence at the Adjourned Final Hearing and the Court shall determine the merits of such application at such time. In the event that such an application is successful, the further affidavit of the Father may be filed.
B.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
the filing of documents; or
any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
C. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.”
Hearing commencing 20 August, 2012
On the further adjourned date I was advised that the employers of the proposed supervisor, Ms B did not want her to undertake that role and nominated another person, a Ms D to do so. I was provided with an Application in a Case and affidavits from Ms B and Ms J with Ms D to be called about her proposed role. I did not want to delay the matter further by having her swear an affidavit. I was also provided with a further brief affidavit from the father.
I was advised by Counsel for the mother from the bar table that her position had changed yet again and she now opposed the Orders sought by the father in his Application in a Case but she did not object to it being filed. I was further advised by Counsel for the mother that, “…Ms G from the Department of Human Services indicated that if there is any face to face contact between the children and the father then they will be issuing a protective application.”
I put little weight on this later comment, as that is a matter for the Department of Human Services what it will do and when it will do it. I will make my own decision on this matter on its merits and the criteria laid down in the Family Law Act 1975, being particularly mindful of s.60CA and all relevant authorities.
The Counsel for the Independent Children’s Lawyer did not object to the filing of the Application in a Case.
Ms J
She was called and confirmed that she is a psychologist who operates the Sex Offender Programs at [omitted] Prison. She further confirmed that she prepared the treatment summary report in relation to the father annexed to her affidavit affirmed 3 August, 2012 and that the contents were true and correct.
The report dated 14 July, 2011 and headed “Treatment Summary Sex Offender Programs” contained the following relevant comments, amongst other matters:
a)“PURPOSE OF REPORT
…
It should be noted that the author facilitated less than half of the sessions completed by Mr Temay. Therefore, this report is complied from both direct observation and comprehensive file review.”
…
b)“RISK ASSESSMENT
Actuarial risk assessment:
Mr Temay was scored on the Static-99 [1] which is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders…
[1] “Harris, A. Phenix, A., Hanson, R.K., & Thornlon, D. (2003). Static-99 Coding Rules: Revised 2003.
Based on the Static-99 score, this places Mr Temay in the Moderate-High risk category relative to other male sexual offenders. Individuals with these characteristics, on average, sexually re-offend at 33% over five years, at 38% over ten years and 40% over 15 years. This approximately 1.8 times the base rate for sexual re-offending in the development sample...”
c)“ATTENDANCE
…
TREATMENT PROGRESS
General Progress
Mr Temay attended all treatments sessions when required; he was a punctual attendee. As previously stated, Mr Temay was suspended from treatment for a total of seven sessions so that he could stabilise himself emotionally as he had demonstrated a decline in appropriate behaviour within the treatment environment. For example, Mr Temay had displayed a tendency to react impulsively, utilise inappropriate language and demonstrate aggressive behaviour…
Mr Temay’s therapeutic engagement fluctuated. At times he presented in an aggressive manner subsequent to perceived challenges to his fragile self-esteem, which resulted in impulsive and disrespectful behaviours such as increased volume in his voice, use of angry or sarcastic tone, comments regarding the uselessness of content or opinions expressed and speaking over others including facilitators. Indeed, Mr Temay was suspended from treatment due to his consistent difficulties demonstrated within the first 28 sessions. These difficulties pertained to poor emotional management as perpetuated by negative thinking patterns such as catastrophic thinking…
After his suspension from treatment and engagement in individual counselling sessions, Mr Temay’s behaviour improved…
However, he continued to require containment and high levels of emotional support within the group context as his engagement fluctuated thorough [sic] the remainder of the treatment program. Mr Temay’s ongoing ability to manage external stressors will impact his overall ability to manage his risk of re-offending when in the community…
Mr Temay often sought out support through custodial and clinical staff… However, this help-seeking continued despite him having learnt a range of emotional management strategies indicating a tendency to over-rely on others for emotional support…
Mr Temay was named by other prisoners as someone who spoke about his offence in positive and light terms, thus seemingly minimising his offending. Indeed, on one occasion treatment facilitators were informed that Mr Temay had been discussing victims, including the burying of victims in the shed within horticulture with another prisoner. This behaviour was addressed with Mr Temay within treatment…
Mr Temay improved greatly in his understanding of his emotions and emotional management strategies. However, his ability to apply these strategies in the moment, whist improving, remained limited…”
d)“Offence Specific Progress
…
Mr Temay’s poor self-regulation was concerning. Through regular reflection, individual therapy and encouragement for self-reflection, over time, Mr Temay developed some insight into his tendency for negative emotionality, impulsivity and defensiveness…
However, overall, Mr Temay continued to display difficulties with his impulsiveness and general self-regulation. Mr Temay’s ability to regulate these factors appropriately will have an impact on his ability to manage healthy interpersonal and intimate relationships and generally his ability to manage a healthy emotional and mental state. Furthermore, Mr Temay identified that his experience of significant emotional instability was related to both his current and prior sexual offending; therefore, his ability for healthy general self-regulation is linked to his risk of re-offending…
He reported tendency for aggressive communication within intimate relationships and demonstrated a lack of insight into the harmful nature of same; he highlighted that his relationships had been dysfunctional with use of physical and emotional violence…
Whist Mr Temay has developed insight into factors and skills needed to meet such needs and goals, however, his ability for implementation of same is newly established and thus requiring more practice…
Given Mr Temay’s interpersonal style as previously described and his lack of intimacy skills, his ability to develop healthy significant social influences has been limited…
From the outset, Mr Temay offered an accurate, but limited, offence disclosure in which he acknowledged his responsibility. However, through further exploration, it became apparent that he was invested in justifying his actions and also engaged in denial of responsibility, attributing blame to his level of intoxication…
… Mr Temay indicated having tenuous control over his sexual urges. Furthermore, Mr Temay endorsed attitudes about children not being harmed by sexual contact if they do not resist. Through increased insight into the impact of his offending on his victims, Mr Temay appeared to adjust this attitude, reporting on many occasions his need to challenge his tendency to view children as sexual objects.
Mr Temay’s insight into this has increased on an intellectual level however; he reported having a “sexual addiction”, thus indicating his perception of the continued uncontrollability of his sexual urges…
The mother affirmed an affidavit on 24 May, 2012. The father in his affidavit sworn 8 June, 2012 at paragraph 3 says he has read that affidavit and that he agrees with the contents of the mother’s affidavit.
At paragraph 12 of the mother’s unchallenged affidavit she says that [Y] does not really remember his father. She said:
“[Y] unfortunately has been diagnosed with a number of issues by C.A.M.H.S. and on 4 June 2012 I shall receive a copy of his treatment plan. I say that he is diagnosed with an intellectual disability, attention deficit hyperactivity disorder, severe non-compliance disorder, anxiety disorder as well as autism. He attends at a local special school namely [omitted] and his prognosis requires ongoing care. I receive a carers payment for him from the government. His issues are such that he cannot be subjected to change and I cannot even take him to the local supermarket because he begins to act out and shut down. I am forced to do my grocery shopping at night so there is someone to take care of the children whilst I am away. [Y] does not really remember his father and during telephone calls made by
Mr Temay every 3 to 4 days, [Y] rarely speaks to Mr Temay. [X] talks to him for approximately 15 minutes per occasion.”
She goes on to say in paragraph 13:
“The behaviour of [Y] has now reaching such a level of concern for me that I have required outside intervention. He has been self harming by trying to stab himself in the stomach with anything sharp. I have been advised to remove most things from his room such as toys etc.. [sic] and he is not allowed to be left alone. He constantly talks about death and what will happen to him when he dies and I have been advised by the team at [omitted] that more than any other 5 year old they have met he grasps and understands the death concept. He cannot read and cannot write and is unable to interact with other children. I need to ensure that he is constantly supervised because he becomes violent. He has hit me in the face and kicked me and the other children and is usually set off by a toy being put out of place or change in routine. I am working closely with his paediatrician [name omitted]. [Y] was placed on medication Ritalin which caused him to go berserk, when he tried to stab me with a knife and punched my daughter [name omitted] in the face. He has since been taken off those meds.”
Early in the trial, the mother adopted the contents of her affidavits and did not want to change any of their contents when given an opportunity to do so. During that same period she talked of [Y]’s bond with the father as being “…pretty good…” This was in the environment of her then supporting the proposed Consent Orders, referred to earlier. Where it conflicts, I prefer her unchallenged affidavit evidence.
I accept that that there is effectively no father/ son relationship currently between the father and [Y], and given the serious repeated sexual abuse by the father of children in the past combined with the fact that [Y] has no real recollection of his father, and given this child’s numerous disabilities, it is my view that currently there is no real prospect of [Y] re-establishing a meaningful relationship with his father where the proposal is that he should have time with his father along with his brother for three hours on a monthly basis under full supervision.
The other child, [X] is aged 8 years and whilst not the biological son of the father he is fond of the father in this case. It appears that he wants to have a relationship with him. In relation to [X], the mother in her affidavit affirmed 24 May, 2012 says the following in paragraph 11:
“In regard to the two children of this proceeding namely [Y] and [X] I note that [X] is in good health save to say that he has experienced behavioural problems. I say that as a result of counselling the Department of Human Services were involved believing that [X] had been interfered with sexually by someone. He was referred to receive further counselling however there were no findings made and no charges laid against anyone. [X] continues to attend grade 2 at [omitted] Primary School and is progressing relatively well.”
The author of the Family Report dated 28 December, 2011, Ms M, at page 18 talks about interviewing [X] and said that “…[X] spoke glowingly about his father…” and described him as “…awesome…” She went on to say that [X] expressed a strong desire to resume spending time with Mr Temay and that he would like to see him “…really, really lots...” At page 27, paragraph 2 of her report, the author recommended that [X] and [Y] should spend supervised time with their father at a contact centre but this view changed.
When she was called to give evidence and be cross-examined Ms M changed her recommendations to not being in favour of either child spending time with the father. [X]’s views will be considered further in this judgment.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The offences
The father first committed sexual abuse on a minor in 1996 when approximately over a three month period, he says 10 times, but the victim claimed it was 24 times on a Tuesday and Thursday, he took a six year old girl into a room, undressed her, undressed himself and had her touch or fondle him including his penis and he fondled and touched her genital area. These events were undertaken when he was sober. They appear to be planned and pre-meditated multiple occasions when alcohol-free.
The second offence occurred in 2001 when he sexually molested a three year old female child and he says on that occasion he was drunk. The third offence occurred in 2009 when he sexually assaulted a six year old girl again when he says he was drunk. He pleaded guilty to all of these offences. The first trial was in 2002 where the father pleaded guilty to charges of indecent acts against children and was sentenced to a term of imprisonment of three years. At that time he was living in Queensland. The second lot of charges were heard in April, 2010 when the father pleaded guilty to a charge of indecent act against a child under 16 years of age and failing to comply with the sex offender regulations. He was sentenced to a term of imprisonment for 21 months (with a minimum of 10 months). It is to be noted that he was also listed on the Sex Offender Register for life. He was released from prison on 7 January, 2012 after serving the full sentence.
The law
In the recent case of Slater & Light [2013] FamCAFC 4 the Full Court of the Family Court of Australia set out the relevant law in this area. It said as follows:
“34. The assessment of risk is guided by statements of the High Court and of this Court, albeit primarily in the assessment of risk of sexual abuse. In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the Court’s broader and ultimate determination, that is, what arrangements are in the best interests of the child. In joint reasons for judgment, their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ) said (at p76-77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. …
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
35. Their Honours noted cases addressing magnitude of risk and appeared to prefer a standard of “unacceptable risk” in relation to parental access (at p78):
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. (17)), “an element of risk” or “an appreciable risk” (Marriage of M. (18)), “a real possibility” (B. v. B. (Access) (19)), a “real risk” (Leveque v. Leveque (20)), and an “unacceptable risk”: In re G. (A minor) (21). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
36. In B and B (1988) FLC 91-978, a judgment delivered together with the decision in M v M, the High Court endorsed the statement of the Full Court majority (Baker and Maxwell JJ) in both M and M (1988) FLC 91-958 at p76,924 and in B and B (1988) FLC 91-957 at p76,935:
We are of the view as a matter of general principle, that in assessing whether or not there is risk to a child if access were to occur or risk that the welfare of a child could be endangered in the event of access, the ordinary civil standard of proof must be applied. If a trial Judge considers, upon the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may, in our view, suspend access.
37. In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M v M, and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think 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 (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).”
In Richards & Brown [2011] FamCA 662 Ryan, J. summarised relevant principles in relation to sexual abuse allegations. At paragraph 32 she said the following:
“32. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page.”
The Full Court in Slater & Light also said the following in relation to the issue of supervised time with children:
“38. While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.”
…
“40. Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing for their own review:
119. The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).”
The state of the evidence
This case went for many days and it is my view that many worrying issues had been raised which in their totality (“a constellation of factors”) makes me unwilling to order any time with the children at this stage based on their best interests. Those issues are:
a)In relation to the mother, it is common ground that the father when he met her and lived with her in a relationship had seriously misled her. He never told her about his prior (then two) convictions for abusing children. In fact it was her evidence that he totally misled her and said he was in prison because he assaulted another person. This is very troubling; how can he say that he has faced up to, accepted and properly dealt with the causes of his offending if he lies to the very person that one would expect that he would be totally frank with. Moreover, the father misled this court when he said in his affidavit filed 19 January, 2010 that he had told the mother of his past convictions;
b)
In February, 2010 the father attended a Dr G, a psychiatrist who provided a report which was read by Dr A and the author of the Family Report. That report was tendered but Dr G was not cross-examined. However it is apparent from the evidence of the experts who read this report, that is the Family Report writer and Dr A, that the father had misled Dr G when he consulted him. He led the expert to believe that when he committed the first sexual assault he was 15 or 16 when in fact he was aged 18 years. Further and more significantly Dr G was not made aware of the 2001 offence. In his evidence Dr A said that he felt that Dr G had underestimated the risk and Dr A took issue with that report. It appears that Dr G concluded that Mr Temay would not be a significant risk of engaging in sexual abuse of the boys. Given the lack of information available to Dr G and in particular not knowing of the 2001 offence, little weight can be placed on
Dr G’s recommendations;
c)The father also misled Dr A. Dr A is a well known psychiatrist who provided a report to the court dated 24 February, 2012, which was intended to be an updated psychiatric assessment of Mr Temay pursuant to an Order made by my sister Hughes FM on 25 July, 2011. He says in his report that he interviewed the father for approximately two hours to prepare this report. Unfortunately he also was misled by the father in that Mr Temay told him that his first offence was in 2001 against the three year old daughter of a friend whilst he was drunk, when in fact the first offence was in 1996 over period of around three months when he was sober. The father only told the expert of 2 offences when affected by alcohol. Dr A was cross-examined on his topic and said that he did not believe that he was told about the 1996 offence and that he had no record of it. He said, “…there is a great difference between a single occasion and multiple, and it’s the multiple occasions that I think is of concern…” The doctor also said it was significant that the 1996 offences did not occur in the context of the father being drunk and that he said that to a very substantial degree his report was based on the information that Mr Temay had given him. In those circumstances it makes it difficult to put any significant weight on the recommendations of Dr A in terms of the father spending supervised time with the children. I am not satisfied that the expert obtained a full, detailed and accurate history from the father on which he based his recommendations;
d)I refer to the evidence of Ms J in (h) below and noted that the father’s demeanour in court on occasions indicated a lack of self control, with emotional outbursts on at least three occasions. I have real doubts about his ability to always control his emotions when in the presence of a third party, including these young children. It is his case that he should be supervised by one or other female employees of V.A.C.R.O. I am concerned about their ability to control him should he have an emotional outburst or outbursts in the presence or hearing of the children. This is also made telephone or similar contact an unattractive option at this stage;
e)I am very concerned that the father minimised his offences and does not take full responsibility for his past behaviour. In this type of case one would have expected the father to openly and fully confront his past outrageous conduct, dealing with every aspect of his personality, psychological and emotional makeup that caused him to so offend. I am not satisfied that he has done this. For example when being cross-examined at one stage it was put to him whether or not he accepted what the victim said about the offence in 2009 was true. He answered, “…to be totally honest, in answer to that question, part of me does and part of me doesn’t…”
The Family Report writer, Ms M also raised this when giving evidence to the court. She said:
“…I was concerned that there was a possibility that the father was minimising some of his child sexual offending history and that became a concern for me...
Another concern in relation to the material presented in those psychiatric reports was the father’s description of his past offences occurring when he was affected by substances, namely, alcohol. And my concern was that that may well be the case but that did not suggest to me that the father was necessarily taking responsibility for his offending behaviour which made me concerned about the possibility of behaviour change and any subsequent risk to the children.”;
f)It was the father’s case that as the proposed time with the children related to two boys, they were at less risk than a female. Dr A on this topic said that he, “…did not know of robust evidence in terms of gender preference of a victim child, but I think, again, being boys places them at somewhat lesser risk…” He also said that he would not dismiss the risk as a result of that. The Family Report writer, Ms M when talking of the gender issue and the other issue of “incest taboo” said that she had a different opinion and that whilst that gender and incest taboo are factors that are relevant in some sexual abuse matters it was her view that, “…there’s very much an issue of what’s called in the literature “opportunity”. So if someone who, I suppose, has a predilection or a past history of child sexual offences and they’re presented with an opportunity to reoffend, that they may take that opportunity…”;
g)When the Family Report writer, Ms M gave evidence she said that her written report had limitations given that it was based on information given to her some six or so months ago and that she at the time was not aware of the recent information that was provided to her from the subpoenaed documents. She also said that in her view the father has minimised his past sexual offending history and that it has been presented in quite a fragmented way that has made it very difficult for any of us to form a view about the overall pattern of offending and the extent of offending. She was asked to clarify what she meant by minimising and she said that she did not think that he is taking full responsibility for what he has done. She also said that there are issues of the children’s safety and wellbeing in terms of any other risk that the father may pose because of his history of child sexual offending and one of those is the possibility of grooming behaviour and she saw that as a real risk to the children. This is a strong argument for not having telephone or similar communication at this stage;
h)Ms J who “treated” the father in prison gave evidence and raised some issues of concern for the court. The first was her risk assessment where in her report she detailed the following:
“RISK ASSESSMENT
Actuarial risk assessment:
Mr Temay was scored on the Static-99 [2] which is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders…
[2] “Harris, A. Phenix, A., Hanson, R.K., & Thornlon, D. (2003). Static-99 Coding Rules: Revised 2003.
Based on the Static-99 score, this places Mr Temay in the Moderate-High risk category relative to other male sexual offenders. Individuals with these characteristics, on average, sexually re-offend at 33% over five years, at 38% over ten years and 40% over 15 years. This approximately 1.8 times the base rate for sexual re-offending in the development sample...”
Ms J was cross-examined about this topic and whilst she qualified this risk assessment as being undertaken at the point of placing someone in the group, the reality is that it is another factor for the court to take into account and be aware of. She also detailed in her report that the father had displayed a tendency to react impulsively, utilise inappropriate language and demonstrate aggressive behaviour. She referred to his poor emotional management and what she described as his minimising of his offending.
She went on to make the following comments:
“Mr Temay continued to display difficulties with his impulsiveness and general self-regulation… his ability for healthy general self-regulation is linked to his risk of re-offending… he highlighted that his relationships had been dysfunctional with use of physical and emotional violence… it became apparent that he was invested in justifying his actions and also engaged in denial of responsibility, attributing blame to his level of intoxication… Mr Temay did indicate a history of engaging in impersonal sexual relationships, group sex and within his sexual offending behaviour reported difficulty controlling his sexual arousal… Mr Temay’s offending behaviour… indicated deviant interest. Towards the latter part of treatment, Mr Temay did indicate that he viewed children as sexual objects and that he gained sexual pleasure from his offending… he appears to require more intensive therapy regarding fantasy management in order for him to effectively manage his risk of re-offending sexually.”
In her report Ms J had a number of recommendations and the significant ones for the court were as follows:
· “Mr Temay should be referred and supported to attend individual counselling for further support with emotional management and healthy sexuality such as fantasy management; [this has not yet occurred]
· Upon release onto parole, Mr Temay should be referred to Maintaining Change; [this has just started]
· Mr Temay participated in a SAAG meeting with one support person whilst incarcerated, he should be encouraged to increase his support network and include them, along with his supervising officer, in a SAAG meeting; [this is in the process of being undertaken]
· Mr Temay should be offered referrals to age- appropriate services in order for him to establish a greater support network.” [this is in the process of being undertaken].
It appeared from the evidence of Ms J that the father has not fully undertaken each and every issue that was recommended and that he is in a state of transition from being a serious offender to potentially being a risk free member of society. Where the father’s evidence differs from that of Ms J, I prefer the evidence of Ms J.
i)The father called a Ms B who works with V.A.C.R.O. She would be a back up supervisor should the primary supervisor a Ms D be unavailable. In her evidence she admitted she has never supervised time with children nor dealt with children with all of the needs of [Y]. Moreover she told the court that on an occasion at an A.A. meeting to use her words she said the father had a “blow up” at one of the other people and she said “…he blew his top and stormed out…” The father said he could not recall this but from listening to and observing him and Ms B in court, I prefer the evidence of Ms B;
j)The next witness was a Ms D, the primary supervisor employed at V.A.C.R.O. She gave evidence that she had not met the father nor had she read the report of Ms J. It was put to her that Mr Temay is a large fellow and in the past has lost his temper and has behaved antisocially. When questioned about this she said she hoped that she would not have any problems with that, but was not confident in her answer.
She also agreed that she has never supervised a sex offender on a one to one basis when that offender was spending time with a child or children and more troublingly, she said that she believed because he offended against girls and his children were boys “…the risks are lower…” This worried me that her own values could affect or reduce her capacity to properly supervise any time with these children.
She also agreed that she had never come across or been involved with a child with all of the combinations of difficulties that [Y] suffers from;
k)I am further troubled by the fact that the father told the court that he was currently living in transitional accommodation having urgently moved from the Gippsland area, to live in a temporary accommodation at [omitted]. This has had the effect of denying him all of his previous local community support and as well as his ability to regularly attend A.A. meetings. Wherever he lives in the future, which is currently unknown, he will have to re-establish a network of physical and emotional supporters as well regularly attend A.A. meetings. This has yet to be established;
l)When the father was recalled he admitted in cross-examination that he had said in his further affidavit sworn 1 October, 2012 that he denied that he viewed children as sexual objects. He then conceded that in the past he had viewed children as sexual objects but he has now changed, which appeared to be at odds with his affidavit. He also said in his affidavit that he never had sexual fantasies about children but when cross-examined admitted that he did have those thoughts and that what he said initially was not true. He also agreed that he required intensive therapy regarding fantasy management and that at the moment that was not available to him because he is yet to attend a psychiatrist for that purpose;
m)The father said that he had been seeing psychiatrists and psychologists over the last seven months to deal with his depression and anxiety. The difficulty for the court was that none of these experts were called and we really do not know the current state of his anxiety and depression or whether it has been treated properly or fully, nor do we know the prognosis for either disabilities; and
n)The Family Report writer recommended both in her report and when giving evidence at court, that the father should currently undertake a comprehensive specialist forensic assessment of his risk of re-offending and re-offending against children, with the expert having extensive and full knowledge of his sexual offences and a full history generally, before the court would consider time with the children. This has not been undertaken.
Conclusion
In the interpretation section of the Act at s.4(1) the term “interests” is defined as follows:
“when used in Part VII in relation to a child, includes matters related to the care, welfare or development of the child.”
This must be read with s.60CA of the Act to understand that the court does everything it reasonably can to promote the happiness, contentment, stability, care, welfare and development of every child involved in litigation before it.
Section 60CC of the Act provides a statutory road map to determine what is in any child’s best interests. The primary considerations in s.60CC(2)(a) and (b) are probably the most significant issues in Part VII when it comes to consider what is in the best interests of the children. The additional considerations in s.60CC(3) were also relevant. However given my above analysis and comments and the lack of recent time with the father, it follows that these additional considerations are not significant in this judgment when compared to sub-sections 2(a) and (b).
Section 60CC(3)(a) refers to any views expressed by the child and the question of weight that should be given to those views. In this case the respondent has effectively no relationship with [Y] and given the recent past, a very limited one with [X]. An issue of note in relation to [X] is that clearly it is his view that he wants some time with the respondent. However this must be seen in the context of an eight year old child who is not only immature (given his age), but is ignorant of the full facts of this case, which are so important to the question of any time with Mr Temay.
In her evidence Ms M, the author of the Family Report, referred to [X]’s views but said in effect that his strong views should not be followed given the many other considerations in this case. She recommended therapy for him and is confident that the mother can arrange it should time with not be ordered. She confirmed in her evidence that her view had changed from when the report was written and it was not appropriate for the children to have time with the father in any circumstances. I accept that evidence.
It must be noted that there is no allegation at all that the father has ever sexually assaulted or interfered with [X] or [Y]. I observed the father over many days in court, including two lengthy periods of examination-in-chief and cross-examination in the witness box. He ultimately presented to me as a man in transition. He has not fully confronted his outrageous past behaviour. It is my opinion that he must undertake and complete, in a thorough, full and detailed way a process of education, information and remedial courses and treatment to ensure that he is absolutely not a risk in any circumstance to any children. There was no utterance of mea culpa that in my view is so important in this type of case. Where the offender has a history of sexual abuse against a child or children there must be an ownership and acknowledgement of fault and responsibility for his grave and anti-social behaviour. This was missing.
Another issue of significance is that in the context of [Y]’s many emotional, psychological and intellectual disabilities his proposal for a very limited supervised time with him would, in my view, not provide the opportunity for a meaningful relationship, which currently does not exist, to develop.
Further, in the circumstances of this case it is unrealistic for the father to propose as a Final Order very limited, infrequent supervised time with the children to continue ad infinitum.
Overall, I am not satisfied the father has overcome the very important hurdle of s.60CC(2)(b) in this case. Moreover, s.60B(1)(b)of the Act also requires the court to protect children and in my view, this includes their emotional well-being. The court would have to say at this stage he presents as an unacceptable risk to these children.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Curtain FM
Date: 15 March, 2013
Ottawa:Department of the Solicitor General of Canada.”Ottawa:Department of the Solicitor General of Canada.”
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