Van Ingen and Van Ingen

[2010] FamCA 863

FAMILY COURT OF AUSTRALIA

VAN INGEN & VAN INGEN [2010] FamCA 863

FAMILY LAW – CHILDREN – Unacceptable risk – Where the father has been convicted of knowingly possessing child pornography and has admitted an addiction to adult pornography – Where the parties acknowledge the risk of the father physically interfering with the children is low – Where the mother’s anxiety is a relevant consideration with respect to her parenting ability

Family Law Act 1975 (Cth)

A &A (1998) FLC 92-800
Re Andrew (1996) FLC 92-692

APPLICANT: Mr Van Ingen

RESPONDENT: Ms Van Ingen

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan

FILE NUMBER: SYC 1053 of 2007

DATE DELIVERED: 28 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Mervyn Finlay Thornburn & Marshall

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: Marks Griffiths & Bova

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. The children live with the respondent mother and be with the mother on the mother’s birthday and Mother’s Day.

2. For the purposes of orders 3.1 to 3.4 , an approved adult shall be one of the following persons:

   2.1.Ms R;

   2.2.Mr or Mrs Van Ingen Senior (paternal grandparents);

   2.3.Mr or Ms H;

   2.4.Mr A;

   2.5.Ms P; and

   2.6.Any trained professional service provider proposed and paid for by the father and approval by the mother in writing. The mother should not unreasonably withhold her approval.

   Provided that the approved adult has complied with order 8.

3. Subject to order 1, the children spend time with the applicant father:-

   3.1.For the first 12 months, with an approved adult in attendance in the general vicinity of the father but not necessarily providing “sight and sound” supervision at all times:

   3.1.1.On alternate weekends from Saturday 8.30am until Sunday 7.30pm; the first weekend is to be the first weekend of the fourth school term in 2010.

   3.1.2.During the first and third term school holidays in 2011 at the commencement of such holidays, for periods of five days and four nights, at times to be nominated by the father, pursuant to order 5.

   3.1.3.On the father’s birthday and Father’s Day from 9am to 7pm.

   3.1.4.From 9am Christmas Day 2010 to 10am Boxing Day 2010.

   3.2.For the next 12 months, with an approved adult in attendance in the general vicinity of the father but not necessarily providing “sight and sound” supervision at all times:

   3.2.1.On alternate weekends from Friday 6pm until Sunday 7.30pm.

   3.2.2.Block periods in the school holidays of up to 5 days and nights at times to be nominated by the father, pursuant to order 5.

   3.2.3.On the father’s birthday and Father’s Day from 9am to 7pm.

   3.3.For the next 12 months, with an approved adult in attendance in the general vicinity of the father but not necessarily providing “sight and sound” supervision at all times:

   3.3.1.On alternate weekends from Friday 6pm until Monday 8am.

   3.3.2.Half the school holidays at times to be nominated by the father pursuant to order 5.

   3.3.3.On the father’s birthday and Father’s Day from 9am to 7pm.

   3.3.4.From 9am Christmas Day to 10am Boxing Day in each alternate year, to commence Christmas 2012.

   3.4.Thereafter the children may spend time with the father without an adult in attendance if:

   3.4.1.J has reached the age of 13 and he and at least one of the other children is present.

   3.4.2.M has reached the age of 13 and he and S are present together when with the father.

   3.5.When a child has attained the age of 14 years they may spend time with the father unsupervised and without the presence of another child.

   3.6.Such further time as the mother and father agree in writing.

4. Changeovers shall occur at the parties’ homes and the mother shall be responsible for delivering the children to the father’s home, while the father will be responsible for returning the children to the mother’s home. The return journey  may be unsupervised if the following conditions are met:

   4.1.The father must drive directly from his home to the mother’s home; and

   4.2.The father must leave his home approximately 30 minutes prior to the allocated changeover time.

5. For the purposes of orders 3.1.2, 3.2.2 and 3.3.2 the father is to provide 10 weeks notice to the mother of the dates that he can obtain supervision for the purposes of holiday time.

6. The father shall not attend the birthday parties of the children’s friends, and may only transport the children to and from the parties, with an approved adult present (if required under the orders above).

7. The mother is to ensure that all three children undertake a Children’s Protective Behaviour Course and the Independent Children’s Lawyer will be responsible for recommending an appropriate program. The mother will transport the children to the course and the father shall be responsible for paying the course fees.

8. The approved adult appointed under order 2 above must, prior to the children being with their father, sign and return to the mother an acknowledgment in the following terms:

   As a supervisor of time spent between the children [J], [M] and [S] and their father [Mr Van Ingen], I agree with the following:

   1)   I am aware that the father has been convicted of possessing child pornography.

   2)   I am aware that the father has been placed on the Child Protection Register.

   3)   I agree to be in attendance of the general vicinity of the father at all times that the children are spending time with the father but understand this need not be “sight and sound” supervision at all times.

   4)   I will accompany the father when he leaves the home with the children and will not allow him to take the children out of the home without my presence, unless it is for the purpose of returning them to their mother’s care at a scheduled time.

   5)   If the father does leave the home without my presence I will notify the mother immediately.

   6)   If I cannot attend supervision as scheduled I will notify both the mother and father immediately.

   7)   I will advise the mother immediately if I see or become aware that the father is accessing or looking at or downloading pornography at any time when the children are in his care and in that event I will forthwith return the children to the mother immediately.

9. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Van Ingen & Van Ingen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1053 of 2007

MR VAN INGEN

Applicant

And

MS VAN INGEN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Both parties agree that the three children should live with the mother.

2. The major issue in the proceedings was the safety of the children in the father’s care, given that the father was convicted of possessing child pornography oin 2007. The father had defended the charges. The father still maintains that he did not knowingly download the child pornography. However, having been found, by another court, beyond reasonable doubt, to have been knowingly in possession of child pornography, the hearing before me proceeded upon the basis that that conviction was not challenged. In addition, the father admitted to excessive interest in the past in the use of adult pornography.

3. Both parties agree that it is in the children’s best interests to spend time with their father. They also agree in relation to the arrangements that need to be put in place for an appropriate adult to be in the general vicinity of the father when the children are spending time with him. The decision I am asked to make in this case is what arrangements need to be put in place to ensure that there is not an unacceptable risk to the children and what arrangements are otherwise in their best interests.

4. The mother’s level of anxiety and her ability to continue to function as the primary carer of the three children is also an important matter that has to be considered.

5. At a prior directions hearing, the parties have agreed the risk of the father becoming physically inappropriate with the children is a low risk. The hearing proceeded on that basis.

6. In February 2008 I ordered both parties have therapy in accordance with recommendations made initially by A/Prof Q in her main report of January 2007. Reports of both clinicians suggested a considerable degree of progress had been made and, in particular, the father had undergone quite an intensive program of cognitive behaviour intervention aimed at modifying his interest in pornography. The father’s doctor commented that there was nothing that he observed or noted during the course of the treatment that led him to question the father’s assertion that the father was not interested in child pornography and that there is nothing in his background or history or presentation to indicate the presence of a paedophilic preference.

7. Both the mother and father’s counsellors have now said that no further counselling is necessary.

8. In her updated report of 2010 I now have the recommendations of A/Prof Q regarding the time the father should spend with the children. The Independent Children's Lawyer agrees with those recommendations. The mother feels that the recommended supervision should be more stringent. The father feels the recommendations should be altered so that the pace at which the children increase their time with him is accelerated.

9. The hearing before me, by agreement, consisted of evidence already given during this less adversarial trial, a consideration of three reports prepared by A/Prof Q and testing by each of the parties and the Independent Children's Lawyer of A/Prof Q’s opinions.

SHORT HISTORY

1. The father was born in 1969 and is aged 41.

2. The mother was born in 1970 and is aged 40.

3. The mother and father met in 1993 and commenced cohabitation in 1995.

4. The parties were married in 2000.

5. J was born in September 2001 and is now 9 years old.

6. M was born in May 2003 and is now 7 years old.

7. S was born in December 2005 and is now 4 years old.

8. The mother and father separated in July 2006.

9. The father was convicted of possessing child pornography in 2007 and his name was placed on the Child Protection Register.

APPLICATIONS

Father

1. The father seeks the following orders:

   1.That the children reside with the respondent mother.

   2.The children spend time with the applicant father:-

   For the first 6 months from today’s date, on condition that Ms [R] or another adult person be within the vicinity of the home occupied by the father:-

   (a)alternate weekends from Saturday 8:30am until Sunday 7:30pm

   (b)School holidays – for a period of 7 days and 6 nights by giving 42 days written notice.

   (c)The children spend time with the father on the father’s birthday and Father’s Day from 9:00am to 7:00pm.

   (d)The children spend time with the mother on the mother’s birthday and Mother’s Day from 9:00am – 7:00pm.

   (e)That in each alternate year the children spend time with the father from 9:00am Christmas Day to 10:00am Boxing Day with the father, to commence Christmas 2010.

   After a period of 6 months from today’s date, on condition that Ms [R] or another adult person be within the vicinity of the home occupied by the father:-

   (f)Alternate weekends from Friday 6pm to Sunday 7.30pm.

   (g)School holidays – for two block periods of 1 week by giving 42 days written notice.

   (h)Further time as set out in (c), (d) and (e) above.

   (i)Such further time as the parties may agree.

   After [M] turns 11:

   (j)Alternate weekends from Friday 6pm to Sunday 7.30pm.   

   (k)Half of school holidays.

   (l)As in (c), (d) and (e) above.

   (m)Such further time as the parties may agree.

Mother

1. The mother seeks the following orders (see exhibit E):

   1.That the children reside with the respondent mother.

   2.That the children spend time with the applicant father:

   For the first 12 months from today’s date provided that Ms [R] or other agreed family member is present with the father:

   (a)Alternate weekends from Saturday 8:30am until Sunday 7:30pm and the children will be bathed and fed prior to being returned to the mother.

   (b)During the first and third term school holidays at the commencement of such holidays, for a period of 5 days and 4 nights.

   (c)The children spend time with the father on the father’s birthday and Father’s Day from 9:00am to 7:00pm.

   (d)The children spend time with the mother on the mother’s birthday and Mother’s Day from 9:00am to 7:00pm.

   (e)That in each alternate year the children spend time with the father from 9:00am Christmas Day to 10:00am Boxing Day with the father to commence Christmas 2010.

   After a period of 12 months from today’s date and for a period of 12 months thereafter provided that Ms [R] or other agreed family member is present with the father:

   (f)Alternate weekends from Friday 5:00pm to Sunday 7:30pm and the children shall be bathed and fed prior to being returned to the mother.

   (g)During the first, second, third and fourth term school holidays, at the commencement of such holidays for a period of 5 days and 4 nights.

   (h)Further time as set out in (c), (d) and (e) above.

   After a period of 24 months from today’s date and for a period of 12 months thereafter provided that Ms [R] or other agreed family member is present with the father:

   (i)Alternate weekends from Friday 5:00pm to Monday when the father shall return the children to the mother at 8:30am.

   (j)The first 5 days of each term school holidays and 5 days in the third week of the Christmas school holidays.

   (k)Further time as set out in (c), (d) and (e) above.

   (l)   Such further time as the parties may agree.

   After [S] turns 11 provided that Ms [R] or other agreed family member is present with the father:

   (m)Alternate weekends from Friday 5:00pm to Monday when the father shall return the children to the mother at 8:30am.

   (n)One half of all school holidays including Christmas holidays.

   (o)Further time as set out in (c), (d) and (e) above.

   (p)Such further time as the parties may agree.

   3.That the father spend time without supervision as herein described with any individual child provided that child is aged 14.

   4.That the father will continue facilitating the children’s attendances at regular sporting and social events when spending time with the children and in relation to social events the father shall deliver such child or children at such venue and shall leave as soon as practicable and shall not remain at such venue during the duration of such social event.

   5.That the father at all times be responsible for picking the children up from the mother’s home and returning them to the mother’s home for school as required by these orders.

2. The document also set out the form of the undertaking the mother wished the approved adults to give.

3. The court expert, A/Prof Q, makes the following recommendations based on the presumption that the risk of the father acting inappropriately with the children is low:

   1.That the children reside with the respondent mother.

   2.The children spend time with the applicant father:-

   For the first 12 months, with Ms [R] or another adult in the vicinity:

   (a)Overnight Saturday on alternate weekends

   (b)Possibly a midweek afternoon and evening in the off-week

   For the next 12 months, with Ms [R] or another adult in the vicinity:

   (c)Overnight Friday and Saturday on alternate weekends

   (d)Block periods in the holidays of up to 5 days

   For the next 12 months, with Ms [R] or another adult in the vicinity:

   (e)Overnight Friday, Saturday and Sunday on alternate weekends

   (f)Half the holidays

   Once [J] is 13 and [M] is 11 and [S] is 8

   (g)No supervision necessary when children spend time with the father, provided more than one child is present

   (h)Ms [R] or another adult should be present in the house for overnight stays.

   Once each child turns 14

   (i)No supervision necessary, and children may spend time with their father without the presence of the other child.

4. A/Prof Q’s recommendations were based on the following:

   23.1.The father is a good father and is strongly committed to the children.

   23.2.Having accessed child pornography, the father is theoretically more likely to commit a physical offence against the children. That being said, the level of that risk is difficult to determine and there is no consensus among the research literature, which variously puts the likelihood of that progression from very low to quite significant.

   23.3.The father does not seem to exhibit behaviours and features associated with child molesters, except the past possession of child pornography.

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII FLA are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and        

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)

1. In this case, the children would benefit from having a meaningful relationship with both their mother and their father. I acknowledge that the benefit of the children having a relationship with their father has been compromised in the last four years due to what counsel for the father describes as “his grave mistake which has led to catastrophic consequences”.

1. Notwithstanding the limitations during the last four years, M and J show strong attachment to both parents and a good relationship with each. Although very young, S also shows a good attachment to the father.

The need to protect Children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

1. The main issue is the children being inappropriately sexually interfered with by their father, given the father’s child pornography conviction.

2. A/Prof Q noted that there were links between possessing child pornography and paedophilia, and between paedophilia and child abuse. The strength of the link is not consistent in the research literature, and may range from very low (1%) to very high (76%).

3. Despite his conviction, the father denied his guilt to A/Prof Q. While the father had a wealth of adult pornography images, those images of child pornography were limited to two pictures of girls aged 8 and 12, one with clothes on, and one with her genitals exposed. The father maintained that these files were compressed within files of adult pornography that he downloaded from the internet, but that the Court did not understand the technical evidence about this. As I have said however, this hearing proceeded upon the basis that the husband had been convicted beyond reasonable doubt of knowingly possessing child pornography.

4. The father has acknowledged his ‘addiction’ to adult pornography and has admitted to viewing pornographic videos and images for multiple hours each day, including when the children were present in the home.

5. In her first report, A/Prof Q explained that interest in adult pornography does not constitute a mental illness in itself, however if it is so compulsive that it leads to impairment of social and societal functions, it could indicate psychological problems. She said it was worrying that the father risked familial relationships by accessing pornographic material when the children were in the house and when the mother was opposed to it – and this demonstrated an element of recklessness. A/Prof Q noted that a person addicted solely to adult pornography is unlikely to pose a risk to children, provided they observe boundaries so that children are not exposed to that material.

6. Aside from the father’s addiction to adult pornography was a worrisome admission that before the parties married, the father installed a camera in the bathroom and had recorded both the mother and her cousin showering and toileting. He maintained this was a one-off action.

7. The father’s counsellor, who was treating the father in regards to his pornography addiction, saw nothing to indicate that the father had a problem with regard to children, that he was interested in child pornography, or that he was a risk to the children. The counsellor said there was nothing to make him question the accuracy of the answers the father gave throughout the sessions.

8. The father’s counsellor has advised that further counselling is no longer necessary. The father’s diagnosis was ‘pictophilia’, involving the repeated use of, or focus on pornographic material. The counselling received by the father included identifying and modifying cognitions relating to the use of pornography and the father’s attitude towards it, management of urges, and avoiding high risk situations.

9. A/Prof Q assessed the father as being depressed and noted that depressive symptoms may lead to accessing pornographic material as a self-soothing mechanism. The father’s counsellor linked the father’s use of adult pornographic material with stress the father was experiencing at that time.

The additional considerations

Children’s views (s60CC(3)(a))

1. Both parties acknowledge that J in particular has requested further contact with his father.

Relationships of the child with the parents and other persons (s60CC(3)(b))

1. The children are progressing well and show strong attachment to both parents.

2. Both the mother and father’s new relationships are functioning well, and the children get on with both their parents’ new partners.

3. The children of the mother’s partner (aged 8, 12 and 15) have accepted her. They live with the mother’s partner full time. The children of both families have good relationships with each other. The children also have a strong attachment within their core group.

4. The children have a strong attachment to the paternal grandparents.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s60CC(3)(c), noting (s60CC(4))

1. The Mother and Father can speak and cooperate, though their relationship is a little frosty. The parties have undergone 4 or 5 sessions of post-separation counselling, and the counsellor reports some gains.

2. Each parent is supportive of the children’s relationship with the other, and their new respective partners. The only concern the mother has about the father’s parenting is the possibility that he may expose the children to pornographic material or be inappropriate with them.

Likely effect of any change in the child’s circumstances (s60CC(3)(d))

1. The mother has been and remains the primary carer of the children. The father does not seek to disrupt this circumstance.

Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))

1. The parties live only 30 minutes apart.

2. Ms R, the father’s partner, does not appear to believe the child pornography conviction, but she takes her supervision duties seriously. Another issue is that she participates in pole dancing and the children have been exposed to a video of Ms R demonstrating her skills. Given the central issue in this case and the mother’s anxiety, A/Prof Q describes the showing of this video to the children as demonstrating poor judgment. The mother has questioned Ms R’s suitability as a supervisor in the past.

3. Given that the father’s name is on the Child Protection Register, the children’s school has made it known that the father is not welcome at school. This obviously creates some difficulties for the father in involving himself in the children’s activities. He is able to go to watch the children’s sport but not participate in an organisational role.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))

1. The father is depressed but A/Prof Q believes the depression is situational – in response to the child pornography conviction and his current family situation. A/Prof Q does not seem to feel the father’s mental status is a significant issue, and says the father will adjust to the new situation in time.

2. As indicated, the report writer did note in her initial report that depression may encourage use of pornography as a self-soothing mechanism. She also warned that if the father’s pornography addiction was at a high level, this could cause him to neglect his parenting duties by detracting appropriate attention.

3. The mother has had a history of psychological disturbances. As a teenager she suffered from bulimia; in her early 20s she started having ‘flashbacks’ that made her suspicious she was sexually abused as a child, and this led to a large family rift. After separation from the father, the mother made a number of complaints to police about her house being entered, and claimed that items had been moved around, underwear rearranged, stuffed toys placed in sexual positions, and semen deposited on the bed sheets. Although DNA tests were conducted on the stain on the sheets, no charges were ever laid. There were concerns about the accuracy of the mother’s observations and anxieties about the ‘break and enters’.

4. The mother has undergone various counselling through her life, and more recently as a result of my orders in 2008. The court expert advises that she is currently well adjusted and stable. Her counsellor said she no longer required any treatment, and she does not take any medication. Despite this assessment, it was acknowledged that the mother was still very anxious about the children being at risk when they are spending time with the father. The Independent Children's Lawyer and the mother sought orders that would acknowledge this anxiety and seek to stabilise rather than exacerbate it. The mother’s anxiety is relevant so far as it impacts upon her parenting capacity (A &A (1998) FLC 92-800). Re Andrew (1996) FLC 92-692 sets out the line of authority where a court is asked to weigh up the advantages of contact versus the need for a resident parent to have peace and tranquillity.

5. The judgment of A & A (at 84,996 per Fogarty, Kay & Brown JJ) explains that the mother’s fear doesn’t have to be reasonable and objectively based as long as it is genuinely held.  In this case I accept the mother’s anxiety is real, and is based upon the father’s conviction, her experience with the father, and perhaps also the result of vigilance arising from her own perceived experiences of sexual abuse. 

6. The mother does not work and does not intend to return to work at this stage, so she may care for the children.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))

1. Both parties and their partners have shown that they are committed to the children and their wellbeing.

Family violence and any family violence order

1. I have already discussed the risks of sexual abuse. No submission was otherwise made about family violence.

2. The mother attempted to take out AVOs against the father on 30 March 2007, 11 April 2007 and 29 May 2007 after the alleged break and entering at her property. I cannot find any evidence that these were successful. So far as I know, there is no current family violence order.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. Provided appropriate risk-management measures are put in place, I do not feel there will be a risk that the mother will institute further proceedings.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. Under s61DA there is a presumption of equal shared parental responsibility when making parenting orders. This presumption may be rebutted if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence, or if it is not in the child’s best interests for some other reason.

2. This case does not involve the abuse of a child. It involves an examination of the risk that the father’s possession of child pornography could lead to inappropriate dealings with the child. There has been no family violence.

3. The court expert records that the mother and father can cooperate and communicate, and have successfully undergone post-parenting counselling.

4. I do not see any reason why the mother and father should not share parental responsibility of the children. Neither party however, seeks I make a formal order, so I do not propose to do so.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Since no formal order for equal shared parental responsibility is to be made, it is not mandatory for me to consider whether it is appropriate for the children to spend equal time with each parent. Neither parent sought such an order. Even if they had, considering the allegations against the father, the necessity of supervision, and the high cost and logistical complexities of supervision and the mother’s anxiety, I would not have considered that such an order was appropriate.

2. Although arrangements for the children to spend time with the father can be difficult to administer, the children should be given the opportunity to spend sufficient time with the father to maintain their relationship with him and attachment to him, in circumstances where there is no unacceptable risk to them.

CONCLUSION ON THE CHILDREN’S BEST INTERESTS

1. The father’s central argument was that the phases of contact should be accelerated as ‘compensation’ for the last four years of limited contact. This goes to the primary consideration in s60CC(2)(a) that a child will benefit from a meaningful relationship with both parents. I have acknowledged that this is so, however there are other factors that must be balanced against this factor, namely the risk of harm to the children, and the effect of the mother’s anxiety on her parenting capacity.

2. The risk to the children is not negligible. In relation to child pornography there is no doubt that the father had images in his possession, and there is evidence in the research literature of a link (however negligible) between possessing child pornography and acting out sexual impulses of that nature. In relation to adult pornography we have been told that depression and stress may encourage the father’s excessive use of pornography, which if it reaches a certain level again, could expose the children to inappropriate material or divide the father’s attention and therefore parenting capacity.

3. I do however acknowledge that the father has sought effective treatment for his pornography addiction, and that Ms R as partner and supervisor is likely to keep an eye on his addiction, and ensure the children are safe.

4. The mother has been vulnerable to psychological stress in the past, and still exhibits anxiety in relation to the father spending time with the children. Her anxiety must be acknowledged and I am conscious of the need for my orders not to exacerbate her anxiety.

5. Other than these three factors which need to be weighed up, the mother and father’s parenting ability and attitudes to the children and their relationships is similar. Both parents offer secure family life and support with the aid of another partner.

6. I consider it is in the best interests of the children to live with their mother and spend increasing time with their father, on a graduated basis. The children should spend time with the father with a suitably qualified adult in the general vicinity until such time as the children are aware of their bodies and can respond to threats to their physical privacy.

PROPOSED ORDERS

1. There is disagreement about how long the first phase of the children’s contact with the father should persist. The father wishes the first stage to last no longer than 6 months, however the mother, Independent Children's Lawyer and court expert say this period should last for 12 months. I accept the evidence of the court expert that while the 6 or 12 month decision is not critical in regards to the children, building the father’s contact with the children slowly will assist the mother in managing her anxiety about the situation. It will also be reassuring to the mother to have time to observe the progress and suitability of the arrangement as it proceeds slowly. Accordingly, the first phase will last for 12 months.

2. Regarding the second phase of contact arrangements, the mother says this phase should last for 24 months, while the court expert recommends 12 months. Notwithstanding the mother’s anxiety, I find that it is in the children’s best interest to adopt the court expert’s 12 month recommendation.

3. It was suggested a further order that the father could spend such further time with the children as agreed to by he and the mother. No party had a problem with this order. The Independent Children's Lawyer had no issue with leaving the order open ended to allow the mother to remove the requirement for a supervisor if she wished. I accept that the mother is particularly vigilant and therefore unlikely to make a decision without full confidence in the father. For that reason there is no basis to make an order under s 64D(2) FLA and accordingly the parties can vary the orders I have made, in the future, if they both agree, by entering into a parenting plan, without coming back to court.

4. The mother requested that the father should provide 10 rather than 6 weeks notice of the time during the holidays when supervision was available for his time with the children. The father offered no reason why I should not make this order and I find that it is reasonable to do so, allowing the mother a school term’s notice to book or plan holidays for she and the children.

5. The mother wished to have the supervisor present at all times in the father’s presence. Such supervision is termed ‘sight and sound’ and is more appropriate where the risk is at a high level. The risk the father poses to the children is low, and therefore ‘sight and sound’ supervision is unnecessary. The court expert recommends only that the supervisor be in the general vicinity of the father – around the home when the father is home with the children, and accompanying the father and children on outings away from the home. I agree with this assessment and will make my orders accordingly. The supervisors should be one of the following:

   76.1.Ms R;

   76.2.Mr or Mrs Van Ingen (paternal grandparents);

   76.3.Mr or Ms H;

   76.4.Mr A;

   76.5.Ms P; and

   76.6.Any paid service provider proposed by the father and approved by the mother in writing. The mother should not unreasonably withhold her approval.

6. The court expert was cross examined about when the children could see their father without an approved adult being in the vicinity. The court expert’s opinion was that when J reached the age of 13, an approved adult would not be required, provided J and at least one other child were present. Further, if only the two younger children go to spend time with their father, then an approved adult will not be necessary once M is 13. The children should not be alone individually with their father until they are 14 years of age unless there is a qualified adult in the general vicinity of the child and the father.

7. I acknowledge that the mother is currently responsible for most of the children’s transportation in their day to day lives, including driving them to and from school each school day and taking them to other sporting and extra curricular activities. Nonetheless, I find that it is appropriate for the mother to have the responsibility for driving the children to the father’s house for the Saturday changeover, while the father will have the responsibility for driving the children home for the Sunday changeover.

8. The mother submitted that while the trip between the parties’ homes was approximately half an hour, I could not be sure that the father could not stop somewhere on the way and undertake inappropriate conduct if he were not supervised. The court expert did not see this as being a likely possibility. I will make the order that the father need not have an adult in his car, but this is on the condition that he drive directly to the mother’s house, and that he leave his house approximately 30 minutes before the handover is due to occur. The fact that the mother will be doing one half of the transportation of the children will, of itself, reduce her anxiety in respect of the children being alone with their father for that trip.

9. The mother and the Independent Children's Lawyer request that the children attend a course in ‘Protective Behaviours’. The court expert also approves this course of action. I will charge the Independent Children's Lawyer with the responsibility of recommending an appropriate course close to the children’s homes. The father will pay for the course and the mother will transport the children to and from the course.

10. The mother worried that if the father attended birthday parties of the children’s friends, the other parents would be worried, and this will impact negatively on the children’s friendship circles. I will make the order that the father may deliver the children to their birthday parties and collect them (with an approved adult present in the car) but he may not attend those birthday parties. I do not feel this is an unreasonable order to make, and is consistent with common practice in any case.

11. The mother wished for the approved adult, whoever they may be, to sign and return to the mother an ‘acknowledgement’. This acknowledgment would:

    82.1.Say the approved adult was aware of the father’s conviction and that his name appears on the Child Protection Register;

    82.2.Explain the level of “supervision” expected;

    82.3.Contain an agreement to contact the mother if they can no longer supervise, and an agreement to contact the mother if the father leaves the home with the children unsupervised or if the father is accessing pornography.

    I will make an order which provides the form in which the acknowledgement should be given.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 September 2010.

Associate: 

Date:  28.9.10