Wardle and Wardle - [2016] FamCAFC 77

FAMILY COURT OF AUSTRALIA

WARDLE & WARDLE

[2016] FamCAFC 77

FAMILY LAW – APPEAL – CHILDREN – The husband appealed a condition on a residence order requiring him to live with his parents – The husband has convictions for possessing child pornography – The trial judge did not fail to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless the husband lived with his parents, did not fail to give reasons for imposing the condition, did not improperly discount the evidence of the single expert and did not fail to consider the long-term impact of the orders – Appeal dismissed – Order for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) – s 60CC(3)(l)

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Simmons & Kingley [2014] FamCAFC 47
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

APPELLANT:

Mr Wardle

RESPONDENT:

Ms Wardle

FILE NUMBER:

PTW

109

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

13 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray, Kent & O’Brien JJ

HEARING DATE:

19 April 2016

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

18 September 2015

LOWER COURT MNC:

[2015] FCWA 85

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Moser

SOLICITOR FOR THE APPELLANT:

Patrick Legal

COUNSEL FOR THE RESPONDENT:

Mr Lafferty

SOLICITOR FOR THE RESPONDENT:

Tyrone B Grantham

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wardle & Wardle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 25 of 2015
File Number: PTW 109 of 2013

Mr Wardle

Appellant

And

Ms Wardle

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Wardle (“the husband”) appeals against an order made by Duncanson J on 18 September 2015. The appeal is opposed by Ms Wardle (“the wife”).
The order requires the husband to reside in his parents’ home while the two boys who are the subject of the proceedings are living with him. The husband seeks to have that condition discharged so he is free to live where he wants.
The wife did not cross-appeal against the order that the children live with the husband, but seeks to maintain the condition about his place of residence, which is designed to protect the children from an unacceptable risk of harm from the husband, who has convictions for possessing child pornography.
At trial, the Independent Children’s Lawyer supported the husband’s application that the children live with him. Although the ICL had proposed that the husband should be required to live with his parents, she did not pursue this. The ICL did not participate in the appeal, having apparently been unsuccessful in obtaining a grant of legal aid.

Brief background

The husband was born in 1968 and the wife in 1972. They were aged 47 and 43 respectively at the time of trial.
The parties commenced cohabiting in late 2007 or early 2008. They were married in 2009 and separated in December 2012.
There is one child of the marriage, N, who was aged five at the time of trial.
The wife has two children (a son and a daughter) from a prior relationship. Only the boy, R, aged nine at the time of trial, is affected by this appeal. R’s sister, J, lives with her father, who did not seek to participate in the proceedings.
Save for a short period, the husband and the boys have lived in the self-contained ground floor of the husband’s parents’ home since September 2012.
The wife lives in an eastern suburb of Perth, which is some distance from the husband’s residence in Perth’s north.
The trial judge considered it would be in the best interests of the boys to spend equal time with both parents, but found this was not reasonably practicable. After considering the competing proposals, her Honour decided the children should live primarily with the husband, provided he resides with his parents.

The three experts

In order to give context to much of our discussion, it should be noted that the trial judge received into evidence reports from three experts.
Ms S is a clinical psychologist who provided therapy to the husband from June 2012 to June 2013. She gave a report to the District Court in May 2012, and prepared another at the request of the husband’s lawyer in June 2013 after having 14 treatment sessions with the husband.
Mr D is a clinical psychologist who the husband has been seeing since late 2013 for therapy, following up on that provided by Ms Stanbury.
Mr B is a psychologist with a background in both the criminal justice and family law systems. He was appointed the single expert in these proceedings, and provided reports in 2013, 2014 and 2015. He recommended that the boys should live with the husband, and considered there was no need for the husband to live with his parents or be subjected to any supervision.

The appeal

There was only one ground of appeal, the thrust of which was that her Honour erred in finding that the husband posed an unacceptable risk to the children. The subsidiary, albeit important, complaint was directed to the finding that the risk would be acceptable if the husband lived with his parents.
The sole ground of appeal was expressed in the following terms:
1.The Learned Trial Judge erred in fact and in law when finding at paragraph 266 of the Reasons for Decision that the Appellant was not an unacceptable risk to the children as long as his care of them is overseen by his parents by him continuing to live with them in their home; and that in the event that his parents do not oversee his care, the risk becomes an unacceptable one and making orders accordingly by reason of:
a)failing to identify the risk posed by the Appellant to the children;
b)discounting the evidence given by the Single Expert Witness [B] without giving reasons for doing so;
c)failing to give reasons how the removal of the oversight by his parents provided by residing with them turns an acceptable risk into an unacceptable risk;
d)making a finding that the Appellant represents an unacceptable risk to the children which is against the evidence; and
e)failing to properly consider the long-term impact of the orders as contemplated under Section 60CC(3)(l) of the Family Law Act 1975.
The Learned Trial Judge ought to have found that the Appellant does not pose an unacceptable risk to the children without imposing any conditions and restraints on him.
We propose to deal with the five components of the complaint separately, albeit in a different order to that in which they were presented.
In our discussion, we will be guided by her Honour’s findings that the wife was “a truthful witness”, and that the only time she was “less than frank” was when asked if she had said “bad things” about the husband to the children (at [40] and [42]). In light of this, we take her Honour’s recitation of the wife’s evidence as a finding of its accuracy, save where there is an indication to the contrary.

Did the trial judge fail to identify the risk posed by the husband?

Counsel for the husband cited authority indicating that where it is alleged that there is an unacceptable risk, the court should carry out “an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable”. It was submitted that her Honour failed to make an assessment of the nature and degree of the risk to the children and that, as a result, it was impossible for her to determine whether there was an unacceptable risk.
We accept the premise that where there is an allegation of risk of abuse, it is important for the court to identify and evaluate the nature and degree of the alleged risk.
In many cases, the court is required to undertake that task in circumstances where there is a fundamental factual dispute as to whether the events alleged to give rise to an apprehension of risk occurred. The evidence in such cases frequently does not permit the court to make a positive finding that the allegation is true, nor that it is untrue.
It is well established that the resolution of any allegation itself is subservient and ancillary to the court’s determination of what is in the best interests of the child. That said, the inability of the court to resolve the truth of the factual allegation said to give rise to an apprehension of risk in turn gives rise to a need for particular care to be taken in identifying the nature of the alleged risk, before proceeding to evaluate the degree of risk.
This was not such a case. On his own evidence, the husband began to view images of naked children, mostly of prepubescent males, in 2001. He was convicted on his plea in August 2012 to two counts of possession of child pornography. On the uncontested evidence of Ms S, the husband’s admitted actions in accessing child pornography indicate an atypical sexual interest in children, or paraphilia.
Moreover, the expert evidence in the case did not permit definitive conclusions to be drawn excluding the prospect of the husband acting on his paraphilia in future, or definitively excluding the prospect of him acting in a way harmful to the children. The expert evidence reflected the reality that where the starting point is the existence of such an aberrant predilection in the husband, the capacity for absolute precision in identifying and predicting the nature of his future behaviour does not exist. For example, the expert evidence did not permit a conclusion to the effect that because the husband’s paraphilia had historically manifested itself in the husband’s viewing of child pornography, so too would future manifestations, if they occurred, be limited to that activity. The complaint that her Honour failed to properly identify the nature of the risk to the children must be considered against that background.
In order to determine whether her Honour properly identified and evaluated the nature and degree of the alleged risk, we propose to set out those findings that are most pertinent to this element of the complaint, noting that many of these will also be relevant to other parts of the complaint.
Her Honour found that:
·The husband, who has relevant qualifications, worked as a supervisor in a “hostel for disadvantaged youths from 1991 until 2006”, and also as a teacher’s assistant (at [57]).
·In his mid to late twenties, the husband became aware that he had “unnatural feelings towards young boys”, which he explained as “curiosity wanting to see what they looked like without their clothes” (at [61]).
·The husband started “viewing pictures and imagining oral acts” involving young boys (at [61]).
·The husband bought his first computer at age 31 and began spending lengthy periods viewing child pornography, even though he was aware this could jeopardise his career (at [62] and [73]).
·After he started living with the wife, the husband continued looking at pornography depicting young children, mostly boys, being molested by men (the wife also looked at the material with him, which the husband had assured her was “a harmless activity”) (at [73]).
·The husband was the subject of an enquiry in 2008 after the mother of a boy named T made a complaint to the police. T was the seven-year-old son of a young man whom the husband had “looked after and mentored” when he was at the hostel. T’s father lived briefly in the husband’s home, and he and T’s mother later asked the husband to be T’s godfather. The husband regularly babysat T on weekends at the husband’s home (around that time, the husband was continuing to consume cannabis and view pornography) (at [65]–[66] and [78]–[79]).
Her Honour made specific reference to one event involving T:
75On an occasion in 2008, the wife entered the parties’ bedroom and said she found the husband in front of the mirror masturbating. She said he was partially standing and partially lying, his pants were down and his hand was on his crotch. The children, [J], [R] and [T] were running about nearby outside the bedroom. The husband was facing the mirror and could see the children who were fully clothed at the time. The wife was shocked. She asked the husband to keep the door closed. She said he was not angry and he apologised.
76The husband explained he was in the bedroom alone and he was fully clothed. He found himself to be uncomfortable and he undid the button of his trousers. He put his hand down the front of his trousers. His hand was touching his penis which was not erect. He explained his testicles were uncomfortable in his underwear and he was readjusting himself when the wife came into the bedroom. The wife accused him of masturbating but he was not, however he was unable to persuade her of that. The children were not in the room.
77The husband said he left the door open so he could look in the mirror to see if anyone came in, whereas if he closed the door someone could just barge in. I cannot be certain as to what the husband did on this occasion, but the wife was upset when describing what she saw. She reluctantly disclosed this incident when pressed regarding her concerns about the husband’s behaviour.
It will be observed that in saying she was unable to be “certain” about the husband’s behaviour, her Honour clearly did not accept his explanation for what the wife observed. The possibility therefore remains that the husband was masturbating while surreptitiously observing the children.
The husband and wife separated for a period in 2008, during which time the wife contacted T’s mother to tell her about the husband’s use of child pornography (as the husband was continuing to babysit T). Her Honour’s findings as to the aftermath were as follows (emphasis added):
79On 4 March 2008 [T’s] mother contacted police. The incident report of WA Police records that [T’s mother] had asked [T] if he had any secrets. [T] told her he and the husband had a secret and he was not allowed to tell any person as he would be in trouble. The incident report records that, when questioned further, [T] told his mother that he and the husband played a game called “magic box” where the husband would place a box over his exposed penis and [T] would put his hand in the box touching his penis.
80As a consequence of this report the police executed a search warrant of the [husband’s] home. The police confiscated computer equipment and cannabis plants. The husband denied the discs contained pornography. Child pornography was located on the hard drive and the compact discs.
The police report stated that no disclosure had been obtained from T, and that the offence had been written off as “unclear”, as the husband had not been interviewed “at this stage” (he was then living overseas). It was therefore not entirely correct for the husband’s counsel to say, as he did in his oral submissions to us, that the accusation relating to T was not “pursued”. Although it may not have been pursued by the police, it was certainly pursued by T’s mother, as appears from the next part of her Honour’s reasons:
83The statement of material facts records that the police analysed the contents of the computer tower hard drive and located 456 images depicting child pornography. Counsel for the husband submitted that [DCP] documents revealed 99% of the content of the pornography accessed by the husband was classified at the very lowest end of the offending scale, at level 1. However, counsel for the mother submitted the [DCP] records indicate that this was only based on what the husband had told them. There was no evidence that the police or [DCP] had categorised the images in this way.
84On 21 April 2008 a restraining order issued from [the] Magistrate’s Court restraining the husband from communicating with [T]. The husband did not oppose the violence restraining order. The husband was questioned at some length as to why he did not oppose the order and did not really give a satisfactory explanation. A possible reason was that he did not want to be questioned about either the alleged incident involving [T] or his use of child pornography. The consequence of the order was that his relationship with [T], whom he had been looking after for some years, came to an abrupt end.
85In evidence the husband confirmed he suggested to Mr [B] that the accusation concerning [T] was “trumped up” and he thought it was possible the wife “engineered the whole accusation with [T’s mother]”.
The husband and wife later reconciled and lived for a period ovrseas, but separated again when the wife discovered the husband was still accessing pornographic sites. After N’s birth, they reconciled again, and continued to reside together after the husband pleaded guilty in August 2012 to two counts of possession of child pornography. He was given an 18-month intensive supervision order, and was put on the sex offender register, as a result of which his internet usage is monitored by the police. (At [243], her Honour said this “would appear to be a significant barrier to the [husband] re-offending” although it would, with respect, seem to us to be a barrier only to the husband accessing child pornography by use of devices registered in his name.)
Her Honour also recorded that:
152 In early 2015 the wife overheard a conversation between [R] and [N] who were playing with dolls, [R’s] doll pretended to be the man and [N’s] doll was the boy and [R] said his toy was kissing the boy and they would get married.
153 In March 2015 the children were playing a game in which they pointed to various parts of each other’s bodies and identified them. [N] referred to a penis as his “willy”.
154 In relation to the above two incidents which caused the wife concern, Mr [B] noted in his report dated 20 July 2015 … he did not consider this to be a problem and developmentally it was quite normal exploration.
Although her Honour did not specifically state that she accepted Mr B’s opinion, we assume that she did, as she made no further reference to it.
At [164] and [168], her Honour also recited these passages from Ms S’s 2012 report relating to the risk posed by the husband (emphasis added):
Mr [Wardle] reported that in 1999 he purchased his first computer. In 2001, aged 32, whilst still employed at the [Hostel] and whilst under the influence of Cannabis, he began to view images of naked children. Mr [Wardle] reported that the images were mostly of prepubescent male children approximately 10-12 years of age. He stated that his routine was to return home from work, smoke Cannabis and view these images. He would have fantasies of touching them or being touched by them, or of having oral sex with them and would frequently masturbate whilst viewing them. Mr [Wardle] reported the sexual fantasies never included sexual intercourse as he was disgusted by this thought. Mr [Wardle] denied any plans to act out his fantasies.
…
Mr [Wardle’s] behaviour of accessing sexual depictions of children does indicate an atypical sexual interest in children, or paraphilia. However, his paraphilic preferences appear to have occurred only episodically (i.e. during a period of prolonged social isolation, Depression and Substance Dependence). Mr [Wardle’s] history demonstrates that at other times in his life, including currently, he has be able to function sexually without paraphilia fantasises [sic] or stimuli. In addition, Mr [Wardle’s] past history and lack of antisocial tendencies suggest that he is at relatively low risk of acting upon any paraphilic sexual interest/fantasies.

Having recorded that Mr B had stated that it was important that the husband “is diligent with regard to the type of pornography he accesses and to seek professional help if required”, her Honour said:
209 It emerged that the husband has viewed pornography for the last 18 months. It is important to record that this does not involve images of children, but is adult pornography, including heterosexual images. He said he has purchased about 15 DVDs which are kept in a locked cupboard at the top of his wardrobe so the children could not come across them.
210 The husband did not mention this in his earlier evidence. It appears he started viewing this pornography around the time Ms [S] prepared her second report and either he did not tell her about it, or she did not consider it necessary to mention it. The husband was viewing pornography at the time Mr [D] provided his report. Mr [D] could not recall being told about it.
211 The husband’s parents did not know about it, although his father was quite defensive and supportive of the husband.
212 The thrust of the questioning by the wife’s counsel was the risk to the children of coming across this pornography or walking into the husband’s room when he was viewing it.
213 An email from the husband to Mr [D] dated 4 September 2014 referred to [R] waking up at 10.35 pm and coming through to the lounge crying. He woke again at 2.00 am and at 4.05 am. The email also refers to [N] getting up at night “to do a pee”, sitting up in bed and crying until the husband comes to get him and the husband has told [N] that there is no need to cry, he should just come and get him. The importance of this is that the husband said he views adult pornography at night in his room with the door locked. It is clear from the email that the children get up at night. [N] would not be able to come and get him if his door is locked. This goes to the heart of the wife’s criticism about the use of pornography, namely, that the children might inadvertently enter the husband’s room and see it. I consider the husband ought to be restrained from viewing any pornographic material while the children are in his care.
…
217 Mr [B] explained his statement at paragraph 30 as set out above, by saying the husband has to be mindful of situations moving close to his previous behaviour. For example, if he views adult pornography which depicts adults perhaps dressed as younger persons, that could constitute a high risk situation and a pathway to reoffending, and that was why he said he must be diligent and mindful of his choices. Mr [B] said the husband should have told his therapist that he viewed adult pornography.
There was no evidence of the nature of the pornography that the husband was continuing to view, save for the husband’s own evidence (which her Honour appears to have accepted) that it was “just normal” heterosexual pornography bought over the shelf in Perth (trial transcript, 28 October 2014, pp 103–104).
At [235] and [264], her Honour found that “the only aspect of the husband’s conduct which could pose a risk to the children is his previous use of child pornography” and that “there is no suggestion that he has ever harmed the children in any way”. Nevertheless she also recorded (emphasis added):
215 Mr [B] was asked if the husband was at risk of reoffending. He said the best predictor of future behaviour is past behaviour and it would be unwise to say there was absolutely no risk. The husband has however undertaken the necessary steps to rehabilitate and Mr [B] was satisfied he is of minimal risk of reoffending in the future.
…
250 Mr [B] has considerable experience in working with offenders, including sexual offenders. He said it would be unwise to say there is no risk associated with the husband, but Mr [B] described it as a minimal risk of offending in the future.
In discussing “the need to protect the child from physical or psychological harm”, her Honour made the following finding:
270 The children may be at risk of harm in the care of the husband if he should reoffend and view child pornography, however, I consider he is unlikely to reoffend. Any risk to the children is an acceptable one if the husband’s care of the children is overseen by the husband’s parents as described above.
It was this finding which became the principal target of attack on account of its failure to specify the nature of the risk posed by the husband to the children.
Reading all of the reasons together, it is clear that one risk about which the trial judge was concerned was the possibility that the children would be exposed to child pornography while they were in the care of the husband. Although the husband’s evidence was that he viewed pornography only at night with his bedroom door locked, the remarks recorded at [213] are a firm indication that her Honour did not accept that this provided a guarantee that the children would not be exposed to pornography. While her Honour restrained the husband from viewing pornography of any sort while the children are in his care, this was clearly not a guarantee he would not, given that the husband has previously broken the law by viewing child pornography. It should also be said that even if it was true that the husband was viewing “only” adult pornography, we see nothing in the reasons to suggest that her Honour would be any less concerned about the children coming across that type of material.
We accept that the trial judge could have more clearly identified at [270] the risk associated with the possibility of the husband resuming his use of child pornography. However, we consider that the risk to which her Honour was referring went beyond the children being exposed to pornography. In our view, her Honour must also have had in mind Ms S’s evidence that there was a risk, albeit “relatively low”, that the husband would act on his “paraphilic sexual interest/fantasies”. Reading the reasons this way would be consistent with [29]–[32], where her Honour discussed “unacceptable risk”. In doing so, the first case to which her Honour referred was one where the focus was on the principles to be applied in protecting children from “sexual abuse”.
It seems to us probable that the trial judge considered that the risk of a link between the husband viewing child pornography and acting upon the stimulation he thereby derived was so obvious that it did not require statement. We are fortified in this view by the fact that her Honour:
·was not prepared to accept the husband’s explanation for why he had his hands down his pants when surreptitiously observing young children;
·did not find that the allegation made by T’s mother about sexual contact between the husband and T was “trumped up”;
·found at [44] that the husband “endeavoured to minimise the severity of his past behaviour”; and
·found at [255] that the husband lied when claiming he had never been “accused of acting inappropriately with any child in my care” when he had, in fact, been reported for what he had allegedly done to T.
We accept that at [216] her Honour recorded Mr B’s evidence that “it was quite a leap to go from the husband’s viewing child pornography to say he had a preference to have sexual relationships with children” and his opinion that the husband was not a “paedophile”. That said, Mr B drew a distinction between paedophilia as a preference to have sexual relationships with children, and paraphilia as a sexual interest in children (trial transcript, 30 October 2014 pp 12–14). However, in assessing risk it could not be overlooked that the two children here are boys, one of whom is not biologically related to the husband. They are of the gender and age which have excited the husband’s sexual interest over a long period. While Mr B had a sanguine view about the likelihood of the husband reoffending, he could not exclude that possibility. Indeed, he drew attention to possible future behaviours “that could constitute a high risk situation and a pathway to reoffending”, and that was why the husband “must be diligent and mindful of his choices”.
Our analysis demonstrates that her Honour did identify the risk the husband posed. In fact, the risk of the children being exposed to pornography may have been greater than the trial judge thought since, with respect to her Honour, there was no evidence to support the finding that the DVDs were kept in a “locked cupboard”. Rather, the husband said they were kept in the top shelf of his cupboard and could be accessed by R, albeit he would need a ladder (trial transcript, 29 October 2014, p 41).
We therefore find no merit in the first part of the husband’s complaint.

Did the trial judge err in finding that the risk was unacceptable?

In considering whether there is any merit in the complaint about the finding that the husband poses an unacceptable risk unless he lives with his parents, it is important for us to stress, yet again, that there is no single correct answer to the question of which order will be in the best interests of a child.
This fact was emphasised strongly in CDJ v VAJ (1998) 197 CLR 172, where the majority of the High Court (McHugh, Gummow and Callinan JJ) said:
151… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. …
Just as there is no single correct answer to the question of which order will be most likely to promote the best interests of a child, there is no single correct answer to the many ancillary questions which are required to be considered before answering that ultimate question. One of the questions here was whether the husband poses an “unacceptable risk”. While proof of the existence of “risk” may be seen as relating to a matter of fact, the question of whether or not a risk is “unacceptable” is quintessentially a matter of opinion, and thus involves the exercise of discretionary judgment.
The limits on appellate interference with judgments involving the exercise of discretion have been laid down clearly in the authorities. The effect of those was explained by Kitto J in Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627:
I shall not repeat the references I made in Lovell v Lovell [(1950) 81 CLR 513, at pp 532–534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King [(1936) 55 CLR 499, at pp 504–505].
Nothing put in argument satisfied us that it was not open to the trial judge to find that the risk to the children was “unacceptable”. In our view, the high point of the argument was that the expert evidence suggested that it was unlikely that the husband would view child pornography again and that accordingly it was unlikely the children would come to any harm. However, the evidence did not permit a conclusion that there was no risk to the children, and it is apparent that her Honour considered that even the low risk posited by the experts was unacceptable and required the condition which she imposed.
We therefore find no merit in this part of the complaint.

Did the trial judge fail to give reasons for imposing the condition?

We reject the proposition that the trial judge failed to give reasons to explain why the risk of harm became acceptable if the husband lived with his parents.
In order to understand the basis upon which this decision was reached, it is important to appreciate the factors that were identified (by the experts and by the husband) as associated with the husband’s use of child pornography. In summary, her Honour recorded these as follows:
·    depression, social isolation, loneliness and boredom (at [64], [166]–[169] and [238]);
·    heavy cannabis use (at [63], [66]–[67], [74], [169], [172], [179] and [238]);
·    lack of sexual activity or not being in a relationship (at [166] and [179]); and
· poor self-esteem, poor insight, immaturity and interpersonal deficits (at [169] and [179]).
It is also critically important to note what her Honour said about the investigation carried out by the Department for Child Protection and Family Support (“DCP”) in 2013 when concerns relating to risk to the children were found not to have been “substantiated” (emphasis added):
129 The decision to not substantiate the children were at risk of harm from the husband was based on a number of factors including the husband residing with his parents, who were aware of the nature of his conviction and who were able to provide additional safety and monitoring to all three children. …
…
131 The husband gave his commitment to referring [J] and [R] to Protective Behaviour sessions, although the wife said they had only attended one. [DCP] said that it would have additional concerns for the children’s safety should the husband relocate from his parent’s [sic] home, as the parents provided additional safety and monitoring for the children. …
At [169] and [172], her Honour also cited these passages from Ms S’s first report (emphasis added):
It is my opinion that Mr [Wardle] may be categorised as a Regressed/Situational Offender, where his sexual interest in children is a consequence of the combination of several factors including developmental immaturity, interpersonal deficits, isolation, poor insight, Depression and Substance Dependence.
These more dynamic risk factors are generally amenable to treatment and responsive to intervention. It is therefore my opinion that Mr [Wardle’s] particular pathway to his current pornography offence renders him amenable to sex offender treatment. In addition, Mr [Wardle] has a very sound premorbid background, his family [of] origin support is stable and he has not used cannabis for a period of 3 years. These factors are further indications that his prospect of positive rehabilitation [is] reasonable.
…
It is my opinion that with the insight and skills attained in therapy combined with his continued abstinence from substances [sic] use and close support of his parents, Mr [Wardle’s] prospects for maintaining his abstinence from use of child pornography are very good.
At [264], her Honour specifically referred to the support the husband receives from his parents and the fact that they assist him with the care of the children, before going on, just two paragraphs later, to find (emphasis added):
266 Balancing the foregoing matters, I conclude that the husband is not an unacceptable risk to the children as long as his care of them is overseen by his parents by him continuing to live with them in their home. In the event that his parents do not oversee his care, I consider the risk becomes an unacceptable one. That risk may diminish in the future, depending on the husband’s circumstances and as the children get older.
In our view, when her Honour referred to “the foregoing matters”, she had in mind the evidence that residing in the home of his parents provided stable support to the husband who, at times, had been depressed, lonely, bored and socially isolated, and who had used cannabis heavily when viewing child pornography. Accordingly, the protective feature of the condition she imposed was not so much that it might prevent the children inadvertently seeing child pornography (given that the husband’s parents lived in a separate part of the house) but rather that living in his parents’ home would make it more likely that the husband would not revert to his habit of using child pornography.

Did the trial judge improperly discount the evidence of the single expert?

This element of the complaint could not be directed to Mr B’s finding that the husband was at a low risk of reoffending since her Honour accepted this evidence. The complaint must therefore be directed only to Mr Burke’s evidence relevant to the condition that the husband must live with his parents.
It was submitted that the trial judge erred in failing to refer to Mr B’s evidence that the husband moving out of his parents’ home would not “increase his risk of reoffending per se”, and hence would not impact on his recommendation that the boys should reside with the husband. However, this part of the evidence must be read in context, and we therefore set out the relevant passage below (trial transcript, 31 October 2014, p 26; emphasis added):
[HER HONOUR] Now, you say, in your view, the children are at minimal risk of being harmed in either parent’s care. Currently, Mr [Wardle] lives in his parents’ home. If he were to move out and live independently with the children, in other words, with no presence of his parents, would that have any – would that make any difference on your recommendations?---[MR [B]] It wouldn’t. It wouldn’t. Certainly be something that he would need to consider. Certainly it takes away a strong support basis, however, it doesn’t remove them totally by not being able to provide other means of support.
It also removes ‑ ‑ ‑?‑‑‑I don’t think it’s – it doesn’t increase his risk of reoffending per se.
No, no. But it removes a very, very low level of supervision, doesn’t it? The parents are in the home?‑‑‑Well, it does remove ‑ ‑ -
At the moment?‑‑‑ ‑ ‑ ‑ that. Yes. Yes.
That goes. And that’s my point. Does that make any difference?‑‑‑My view that it doesn’t. I don’t consider that he needs to be, you know, supervised either formally or informally.
It will be seen from this passage that Mr B accepted there was a difference between the husband living with his parents and living independently. In any event, her Honour was under no obligation to refer to every part of the evidence, and it was entirely a matter for her to determine what use was to be made of the single expert’s evidence (see the long line of authorities conveniently collected in Simmons & Kingley [2014] FamCAFC 47 at [42]).

It should also be noted that her Honour’s reasons did not mention what we regard as Mr B’s seeming acceptance of the fact that viewing child pornography “can lead to … hands-on … offending in the future” (trial transcript, 30 October 2014, p 58). However, we accept that it is not necessary, feasible or desirable for a judge to refer to every piece of evidence, even that of an expert: Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62] and Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386.
As Allsop P (with whom McColl JA agreed) said in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]:
There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. Many of those expressions state the matter by reference to general principle, rather than by reference to the facts of the particular case ... In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. …
Counsel for the husband took issue with the finding at [237] that the trial judge was “not assisted by an independent risk assessment”, asserting that her Honour had such an assessment in the form of the evidence of Mr B. We consider her Honour’s finding was well open. Her Honour was not disputing the independence of Mr B, but rather she was pointing out that he had not, in fact, carried out a “risk assessment”. Her Honour was therefore right in holding that she would have to undertake her own assessment, doing “the best I can with the evidence available to me”.
Mr B himself conceded that he had not carried out such an assessment, as this transcript extract demonstrates (trial transcript, 31 October 2014, p 11):
[COUNSEL FOR THE WIFE] I noticed and made reference yesterday that part of your experience and background has been specifically looking at treatment efficacy and recidivism with respect to sexual offenders and that there were questions asked in relation to risk of offending with respect to [the husband] and particular I think that arose in the context of him accessing adult pornography, whether this was a step backwards or a pathway to him reoffending. Do you believe that you are in a position as a result of your experience and qualifications to make an assessment as to likelihood of a person reoffending?‑‑‑[MR [B]] Well, certainly, to undertake an assessment of that nature I would need – that would be a separate – it’s a separate entity, with greater time and different questions would need to be asked in order to carry out an assessment of that type.
At the conclusion of Mr B’s examination by counsel, her Honour asked a number of questions relating to the “tool” used in a formal risk assessment (trial transcript, 31 October 2014, pp 25–26). Mr B described the tool as involving a “specific type of interview that usually takes approximately two to three hours to go through with an individual”. He also expressed the view that the tool is “one of the best predictors that we have to predict future behaviour”.
When her Honour asked whether failure to administer such a test impacted on Mr B’s views, he said, “I’m satisfied that I have enough information … to have enough confidence to say that [the husband] is a low risk of reoffending in the same way”. While that was Mr B’s opinion, her Honour was not obliged to accept it, as counsel for the husband properly conceded.
One very good reason why her Honour would not have accepted Mr B’s opinion was that he had said earlier that he had not undertaken a risk assessment that he “would consider formal and thorough using a specific risk assessment tool”, although he added that “I would consider that I’ve done a preliminary assessment with the information that has been made available to me” (trial transcript, 31 October 2014, p 24; emphasis added). Apart from the fact Mr B himself conceded his assessment was “preliminary” and not “formal and thorough”, any assessment he made would have been dependent, at least in part, upon the husband being frank. This is another reason why the trial judge needed to carry out her own assessment of the risk, since her Honour found:
·at [47]–[48] that the husband had not informed Ms S about the accusation concerning T which the husband “[guessed] would have been relevant”, and had also not told DCP about this when they undertook a risk assessment when the children were left in his care;
·at [173] that the husband failed to inform Ms S that he had commenced viewing adult pornography;
·at [181]–[182] that while Mr D recalled an allegation in relation to a child that was not substantiated, he did not recall being told of the VRO obtained by T’s mother, although he (rather generously in our view) considered it understandable that the husband did not disclose an “unsubstantiated” allegation to DCP;
·at [210] that the husband had failed to mention earlier in the proceedings that he had taken up viewing adult pornography;
·at [217] that Mr B’s opinion was that the husband should have told his therapist that he viewed adult pornography; and
·at [248] that the husband did not tell Mr D he was viewing adult pornography.
All of these findings reinforce why her Honour clearly did not accept Mr B’s conclusion that the husband was at no greater risk of harming the children if he lived away from the home of his parents.
Although not a matter referred to by the trial judge, the following passage from Mr B’s evidence provides further support for her Honour’s view that living in the home of the grandparents is a protective mechanism (trial transcript, 31 October 2014, p 21):
[COUNSEL FOR THE HUSBAND] Now, in your capacity as an expert, understanding issues of risk and of abuse, having looked at that materially previously and highlighted those matters, are you able to make an assessment of whether these two children are at risk today, left in unsupervised care with Mr [Wardle]?‑‑‑[MR [B]] well, I think the contents of this DCP file are in line with the recommendations that I made in the original report and certainly, taking all of this information that we’ve just gone through into account when making those recommendations my impression is that DCP have investigated this matter, made sure that [the wife] was aware of the offences that [the husband] was charged for, were satisfied that she was, then took steps to investigate whether appropriate safety factors and protective mechanisms were put in place. They were satisfied that they were and concluded that they needed no further role in this case.
As we have noted earlier, one of the primary reasons DCP was not prepared to substantiate risk to the children was because the children were living in the home of the grandparents. Accordingly, Mr B could draw no support from the position adopted by DCP in attempting to bolster his opinion that it was unnecessary for the children to be “supervised”.
Ultimately, the decision relating to whether or not living in the home of the grandparents was a protective mechanism was a matter for the trial judge. In our view, her Honour had more than enough evidence to justify reaching the decision she did.

Did the trial judge fail to consider the long-term impact of the orders?

Although the trial judge considered that the order for residence in favour of the husband should be made conditional upon him residing in the home of his parents, her Honour’s orders contemplated that the husband and children might live elsewhere in the event that the wife consented to them doing so.
This appears from paragraphs 3 and 4 of the orders:
Living arrangements
3 The children live with [the husband] on condition that he continues to reside with them at the home of the paternal grandparents … at [an address in Suburb H], Western Australia.
4 [The husband] be restrained and an injunction granted restraining [the husband] from changing his living arrangements, such that he no longer resides with the children at the paternal grandparents’ home, without providing [the wife] with 42 days’ notice of the intended change and obtaining her consent thereto.
Her Honour found at [293]–[294] that it was “clearly desirable that there should be certainty and finality in the children’s living arrangements” and said she therefore intended to make “final orders”. However, counsel for the husband submitted that her Honour failed to “address what the impact would be of the finality of the orders” and that the orders “give rise to the likelihood of further proceedings, contrary to the intention of [s 60CC(3)(l)]”.
In support of this proposition, it was noted that the wife had said that she continued to have concern about the safety of the boys, “particularly as they are getting older and are approaching the age whereby the Father has previously demonstrated an interest or sexual urge in boys of that age” (recited at [259]).
It was submitted that while the wife’s position had been found by the trial judge to be “somewhat inconsistent”, there was a real prospect she would never give the consent referred to in Order 4, “thereby requiring further proceedings”.
The first point to be made in relation to these propositions is that s 60CC(3)(l) of the Family Law Act 1975 (Cth) does not mandate the making of orders that will ensure there are no further proceedings. Rather, the provision directs the court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings”. Given that the proceedings had been on foot since January 2013, we consider that her Honour paid sufficient attention to this requirement by carrying through her intention to make “final orders”. Her decision to do so stands to be assessed against the fact that many interim orders had been made during the protracted proceedings.
Secondly, the husband’s submissions assume that the wife withholding her consent to the husband moving out of his parents’ home might, in itself, provide justification for applying to vary the orders. This is not an assumption we would make, although we recognise the possibility that at some point it may be appropriate for the condition to be revisited. Her Honour herself recognised this when she said at [266] that the risk “may diminish in the future, depending on the husband’s circumstances and as the children get older”.
In our view, there is no reason to assume that the wife would unreasonably withhold consent to the husband moving, for example if the husband forms a stable relationship with a woman who could provide the stability or supervision which her Honour seemingly anticipated the husband’s parents could provide.
The assumption that the wife would act unreasonably is inconsistent with her Honour’s obvious acceptance of the wife’s statement, recorded at [41], that “she bore no ill will towards the husband and at one time she was prepared to reconcile with him for the sake of the children”. Although the trial judge found that the wife had at times denigrated the husband, the proposition that she would withhold consent to a suitable proposal by the husband to move out of his parents’ home also needs to be considered in light of these findings:
·That the husband’s parents “were somewhat negative towards the wife” and that the husband’s mother “had little positive to say about the wife”, which led to her Honour doubting that the grandmother would promote the children’s relationship with the wife (at [51] and [303]).
·“Both parties provide well for the children’s emotional needs when they cooperate with each other and spend time with the children together. They recently attended Burswood together with the children” (at [285]).
·“Both parties have demonstrated a responsible attitude to parenthood. Both parties love the children and are child focused” (at [290]).
·That the husband and wife “have enjoyed a reasonably amicable relationship, notwithstanding these proceedings and to their considerable credit they have enabled the children to enjoy activities in the company of both of them” (at [305]).
It should also be observed that we were not taken to any evidence to demonstrate that it was a real imposition on the husband to be required to live in the self-contained downstairs area of his parents’ home. We also note that it was put to the husband that his plans to maintain a separate residence were “pie in the sky” (trial transcript, 4 July 2014, p 119), and that her Honour recorded at [50] that the husband’s father had said that “he did not envisage the husband being able to afford his own accommodation”.
It is clear from this extract that her Honour shared the scepticism about the ability of the husband to set up an independent residence:
287 On the other hand, counsel for the wife was critical of the husband, pointing out that he had not demonstrated the independence that the wife had. The husband was dependent upon support from his parents. He commenced a business, but was unable to say what, if anything, he earned. He had not demonstrated the ability to provide for the children on his own without that parental support. On the other hand, he said it was his intention to obtain accommodation and move out of his parent’s [sic] home, but he was unable to say how he would be able to afford to do this, to work and to care for the children.
288 The husband’s intention to obtain accommodation of his own of course raises the concern that his care of the children would not then be overseen by his parents. It was not his case that he intended to remain in their home. He hoped he would not remain dependent upon them and he would independently look after the children. It is not apparent as to how he would do that.
Ultimately, however, the fallacy underpinning this and all of the other complaints of the husband is that it overlooks the fact that her Honour’s findings about the risk posed by the husband to the children, and the way in which that risk might be ameliorated, formed but one part of her Honour’s decision. The trial judge, consistent with well-established authority, held that:
267 The “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely, the determination of the best interests of the children to which the “unacceptable risk” test is “subservient and ancillary” (B and B (supra)). To determine the best interests of the children I consider the matters set out in the primary and additional considerations below.
Her Honour conducted a careful and now largely unchallenged assessment of the “primary” and “additional” considerations. In discussing the consideration relating to the nature of the children’s relationship with the parents and other persons, including grandparents, her Honour found at [276] that the children enjoyed a close and loving relationship with the paternal grandparents.
In dealing with the consideration relating to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from parents or other persons with whom they have been living, including grandparents, her Honour made these crucial findings:
279The children have lived with the husband in his parent’s [sic] home, for about three years. They are well settled, comfortable and secure. They are doing well at school and are accustomed to the current routine of spending weekends with the wife. Their arrangements are predictable and the children are thriving.
280A separation of the children from the father and the paternal grandparents is likely to have an effect upon them. It would be a considerable change to a settled living arrangement. Mr [B] reported it as potentially being highly disruptive. In the event the children were to move to live with the wife everything would change for them, their comfortable surroundings, their school and their close proximity to their father and paternal grandparents. They may adapt to the change, but [R] in particular is likely to experience considerable difficulty, given his strong attachment to the husband.
281On the other hand, they are accustomed to visiting their mother, as they do so three weekends out of every four for three nights. They are familiar with her home.
282This is a significant matter to consider which must, of course, be balanced with all of the other considerations.
Most importantly, when discussing whether the children should live with the husband or the wife, her Honour said (emphasis added):
299 A change in the children’s living arrangements is likely to have a detrimental effect upon them. They are happy and settled living with the husband, as they have done for the last three years, at the home of the paternal grandparents. They are well integrated in school and activities locally and they have friends. The husband is able to facilitate this important part of their upbringing. He is sensitive to their needs and is a responsible parent. [R] in particular would struggle with a change to his living arrangements, school and close attachments. In my view, the likely disruption to the children of a change in their living arrangements outweighs the benefits to them of doing so.
300 The wife is also able to provide for the children. She has recently had some difficulties with [J], who is no longer living with her. She does not have the close family support enjoyed by the husband, but she does have a network of friends.
…
303 While the husband’s parents were somewhat negative towards the wife, they provide valuable support to the husband and enable him to provide a secure and stable home environment for the children.
…
315I consider it would be in the best interests of the children to continue living with the husband at the home of the husband’s parents.
316A disruption to the children’s settled living arrangements and current circumstances is likely to have a detrimental effect upon them. I place weight on this factor.
In our view, this appeal amounts to no more than a complaint that the husband did not win well enough. Her Honour’s discussion of all of the factors, and her view that a shared-care arrangement would ideally be in the best interests of the children, makes clear that it was a finely balanced case. The extracts we have taken from the judgment, but in particular [299]–[300], [303] and [316], indicate that the fact the husband was living with his parents was a crucially important element in the decision that the children should live with him, for reasons unrelated to protecting the children from possible harm.

Outcome and costs

For all the reasons we have given, we find no merit in the appeal, and it will therefore be dismissed.
The wife sought costs if the appeal was dismissed. Counsel for the husband properly accepted that it would be appropriate for a costs order to be made in such circumstances. The husband having been wholly unsuccessful, we intend to order him to pay the wife’s costs, to be assessed if not agreed.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & O’Brien JJ) delivered on 13 May 2016.

Associate:

Date: 13 May 2016