Worth and Worth

[2018] FamCA 482

FAMILY COURT OF AUSTRALIA

WORTH & WORTH [2018] FamCA 482

FAMILY LAW – CHILDREN – INTERIM APPLICATION – Where father seeks to spend supervised time with the child prior to trial – Where mother opposes the father spending any time with the child – Where the father has not spent any time with the child since June 2016 –Where the father poses a low risk of sexual harm and emotional harm to the child – Where strict supervision is a means of mitigating those risks – Where orders made for father to spend time with the child supervised by a child psychologist.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Goode & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC

APPLICANT: Mr Worth

RESPONDENT: Ms Worth

INDEPENDENT CHILDREN’S LAWYER: Ms Taifalos

FILE NUMBER: CSC 614 of 2016

DATE DELIVERED: 27 June 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 7 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITORS FOR THE APPLICANT: The Law Office

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Trevino

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Cheryl Taifalos

Orders

1. Until further order, the father spend time with X born … 2010 (“the child”) as follows:

   (a)For a period of 2 hours on such times and on such dates to be supervised by registered psychologist Ms B of C Group (“Ms B”) at the cost of the father;

   (b)Time occur at the offices of Ms B located at D Street, E Town, unless otherwise directed by Ms B;

   (c)The parties forthwith do all things and sign all documents necessary to undergo any and all necessary intake procedures imposed by Ms B;

   (d)The time the father spends with the child pursuant to order 1(a) hereof be conditional upon Ms B determining that there is no unacceptable risk of physical, emotional or psychological harm to the child by commencement of contact as contemplated by these orders.

2. It is requested that Ms B, subject to determining that there is no unacceptable risk of physical, emotional or psychological harm to the child, use her best endeavours to make herself available to supervise time between the father and the child each alternate Saturday, or in the alternate, on at least 2 occasions each calendar month.

3. The time supervised by Ms B between the child and the father be reportable.

4. The Independent Children's Lawyer be at liberty to provide to Ms B all of the expert reports prepared by Ms F, Mr G and Dr H for the purpose of this proceeding.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC614/2016

Mr Worth

Applicant

And

Ms Worth

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Application in a Case filed 24 May 2018, Mr Worth (“the father”) seeks interim orders that he spend time with the parties’ child, X born in 2010, and hence presently 8 years of age (“the child”) for two hours each alternate weekend.  Ms Worth (“the mother”) opposes the father spending any time with the child, on the basis that she asserts that he presents such a risk of harm to the child, that not even strict supervision would adequately mitigate it.

2. The Independent Children's Lawyer supported the position of the father.

3. On 7 June 2018 I heard the father’s application and reserved my decision.  This is that decision and the reasons for it.

THE FACTS

1. The mother was born in 1979, and hence is presently 39 years of age.  She was born in Europe and travelled to Australia in 2004 when 25 years of age.  She is a qualified professional.

2. The father was born in 1980, and hence is presently 38 years of age.  He grew up in North Queensland, and appears to have had a variety of occupations during his life.

3. In 2005 the parties commenced a relationship, and married in 2006.  Later that year the parties relocated from North Queensland to Darwin, and whilst they were living there, in about 2009, the police executed a search warrant at the father’s work place and the parties’ house.  Child exploitation material in the form of unillustrated books of accounts of sexual activity, mostly between adults and young teenage children, was located and seized. It appears as though most, if not all, of the seized material was heterosexual in nature.  The father was charged in due course in relation to the possession of that material. 

4. In 2010 the child was born. 

5. In late May 2011 the parties separated.  After separation, in 2011, the father was found guilty by a jury of possessing the child exploitation material, and since the relevant legislation required actual imprisonment, the Judge, in view of the fact that the matter was, according to his Honour’s evaluation “very much towards the lower end scale of such offences” sentenced the father to only one day imprisonment, which was suspended on condition that the father be of good behaviour for 12 months.  However by virtue of that conviction, the father was also placed on the Sex Offender Register for a period of 8 years.

6. In June 2013 the parties reconciled, but they finally separated (albeit remaining for a period living under the one roof) in November 2015.  The father, with the mother’s agreement, continued to spend time with the child, including overnight time in the father’s home.

7. However on 8 June 2016 the mother unilaterally determined that the child’s time with the father should cease, and thereafter, apart from a couple of brief visits in 2016 to the child’s school, the father has not again spent time with the child.

8. These proceedings were commenced by the mother on 12 September 2016 in the Federal Circuit Court, and in her application the mother sought that the child live with her, and spend no time with the father.

9. On 15 November 2016 a Child Inclusive Conference was conducted which supported interim orders for the father to spend time with the child, albeit strictly supervised.

10. On 18 November 2016, an interim hearing was conducted by a Federal Circuit Court Judge.  Consent orders were made that the child live with the mother, but the parties were unable to agree (it seems) whether the father would spend time with the child.  It appears as though the court was satisfied that it was in the best interests of the child that the father spend supervised time with him, and interim orders were made permitting the father to spend time with the child on either Saturday or Sunday of each weekend for a period of up to three hours at the E Town Contact Centre.  Although no reasons for that determination appear to have been given, or at least transcribed, it is obvious that the court must have been persuaded that such orders were in the child’s best interests.

11. Notwithstanding the orders, on 22 November 2016 the father again attended at the child’s school in an attempt to see the child.  He claims that the visit had been pre-arranged and he did not understand it to be in breach of the orders.  He was not permitted to see the child.

12. In due course, the mother brought a Contravention Application which, on 6 March 2017, was found established by a Federal Circuit Court Judge, who slightly varied the 18 November 2016 orders to specifically prohibit the father spending time with the child other than as set out in those orders.

13. On 10 March 2017 interviews for the Family Report commenced, and in due course, on 4 April 2017, the Family Report was released.  On the assumption that the court was of the view that there was sufficient risk to the child arising from the father’s historical possession of child exploitation material, the Family Report writer recommended that the child’s time with the father be supervised “until he is old enough to safely articulate and understand the situation.”

14. On 23 August and 27 September 2017, a psychiatrist, Dr H examined both the mother and father.  He formed the view that the father was “perfectly capable of supervised contact” but concluded that he “simply cannot see that it is appropriate to allow him to have unsupervised contact with the child.”

15. On 11 October 2017 a forensic and clinical psychologist, Mr G, undertook a sexual risk assessment of the father.  He concluded that the concerns which he identified in relation to the father were “sufficient to elevate his risk to a point if contact between [the father] and [the child] were to proceed, then it ought be supervised.  The boy’s age is such he is very vulnerable and whilst the risks to him may be low – they are not nil.”

16. For reasons which are not clear on the evidence, notwithstanding the orders of November 2016 and March 2017, the E Town Contact Centre refused to undertake supervision of the father’s time with the child.  The father was formally advised of that on 1 September 2017.  Consequent upon that advice, the father’s solicitors from time to time made other proposals to the mother’s then solicitors as to alternative supervisors, however they were all rejected.

17. On 23 May 2018 I conducted the Trial Management Hearing of this matter, in anticipation of listing it for trial.  On that occasion counsel for the father foreshadowed an application would be shortly brought seeking to have the child spend time with the father supervised by a psychologist.  Given that the father has not seen the child since 2016, it was said that the listing of the matter for trial should await the resolution of that application, and that course was not opposed.

RELEVANT STATURORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part 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 these objects are that (except when it is or would be contrary to a child’s best interests):

   (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).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. In Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

2. Finally I should advert to s 61DA(3) which provides:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

3. In Salah (supra) at [34]-[35] the court said as follows:

   [34] Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (above) was emphasised in the decision of Treloar:

   78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult ...

   [35] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.

4. Later at [46] the Full Court continued:

   [46] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.

THE COMPETING PROPOSALS

1. As I have indicated, the father seeks orders permitting him to spend time with the child, supervised by a nominated psychologist. Those orders are opposed by the mother, who contends that the father should not again spend any form of time with the child, at least for the foreseeable future.

THE ISSUES IN DISPUTE IN THE INTERIM HEARING

1. The main question in dispute is whether the father presents such a risk of harm (whether it be sexual and/or emotional) to the child, that it cannot be adequately mitigated by strict supervision.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. In traversing the background facts I have already set out a number of uncontroversial matters.  However the uncontested facts relevant to this application appear specifically to be as follows:

   ·The child in question is male and presently eight years of age;

   ·In 2011 the father was convicted of the possession of child exploitation material, however that material was narrative in form, and at most, if there was any, only contained one image.  No actual prison time was served by the father;

   ·At the time of the father’s conviction, the parties were separated, but the relationship resumed again in June 2013, although finally terminating in November 2015.  The child lived with both parties during the resumed relationship;

   ·Thereafter the father has spent time (including blocks of overnight time) with the child until 8 June 2016, apparently without any issue arising;

   ·Since then (with the exceptions I have discussed) the father has not spent time with the child;

   ·On 18 November 2016 interim consent orders were made for the father to spend supervised time with the child at the E Town Contact Centre.  Those orders were not made by consent, and no appeal was brought from that determination;

   ·For reasons that are not altogether clear, the E Town Contact Centre has refused to supervise the father’s time with the child;

   ·At some point in time, seemingly around about November 2016, the mother has told the child something in relation to the father’s conduct, most likely something to the effect that the father has seen images of naked children;

   ·All relevant experts acknowledge the father presents some risk of sexual harm, albeit low or moderate, to the child;

   ·All relevant experts recommend, at least initially, supervised time with the child, in view of the risk which the father poses;

   ·Given the length of time since the father has seen the child, a trial in these proceedings may not be able to result in final orders, unless the court is satisfied that the father is such a risk of harm to the child that no means of adequately mitigating the risk exists.

RISK POSED BY THE FATHER

Overview

1. The mother appears to contend that the father poses two species of risks to the child.  The first is a risk of sexual harm, either by direct sexual assault, or perhaps, by exposure of the child to pornography.  The second risk was of a different kind, namely that forcing the child now to spend time with the father may adversely impact upon the child later in life, when he comes to appreciate the nature of the father’s conduct which led to his conviction.

Direct risk of sexual harm

1. As I understand it, the only material from which a direct risk of sexual harm is said to arise, is the fact of the father’s possession of child exploitation material, being the same material for which he was convicted in 2011.  I do not overlook the mother’s evidence that, during the course of the relationship, the father attempted to persuade her to watch a video which she says was pornographic in nature, and involved adults with underaged children, but it does not appear as though the father accepts that event occurred.

2. There is a dispute between the parties as to whether the father was aware of the content of the material about which he was convicted, and whether he used it as a source of stimulation during the course of the relationship or earlier.  Particularly the mother emphasises that the material was found locked in an ammunition chest, which had accompanied the father both into the relationship, and during the parties’ moves during the relationship.  The mother also says that, at the time they moved from Darwin, the father gave his own father some of the material.  However the father denies much, if not all, of the inferences which the mother seeks to draw, and as I understand it, denies not only that he was aware of what was in the material, but also denies any interest in sexual relations with minors.

3. Mr G concluded:

   I found no evidence in [the father’s] reported sexual experiences nor do I read anything from the affidavit material from the adults in his life that suggests a propensity for deviant sexuality or to be possessed of abnormal appetites or desires.

4. Although he concluded that the psychometric evaluation which he conducted with the father led to the conclusion that he “poses little risk to his son”, he then went on to note certain clinical concerns that would nonetheless elevate the risk to a point where any time which the father spent with his son should be supervised.

5. It is not possible to make a comprehensive risk assessment of the father in interim proceedings such as these.  However the following points do tend to suggest that any risk he poses of direct sexual assault to the child are low:

   ·Other than the possession of the child exploitation material (and the circumstances and the extent of the father’s knowledge in relation to that possession cannot presently be determined) there is nothing to suggest that the father has in the past, acted in any inappropriate way with a child;

   ·The bulk, if not entirety, of the child exploitation material that the father was found in possession of, was heterosexual in nature;

   ·The father’s time with the child, both during the parties’ resumed relationship and post-separation, has not raised any issues of concern of a sexual nature, or indeed any nature, with the child.

6. These matters, together with the professional assessments of the father, persuade me, at least on an interim basis, that the prospect of the father sexually assaulting the child is low.

7. That said, I accept that, if the father were to directly sexually assault the child, there is a high probability of grave harm being suffered by the child in consequence. Nonetheless, the net risk of harm in this case is low, because of the low chance of the father assaulting the child.

Risk of exposure to pornography

1. The father appears to have had extensive recourse to pornography during the course of his adult life.  As at the time of Mr G’s assessment in 2017, he was still using pornography.  However Mr G noted that “his use seems moderate and not either obsessive or at a level of an addictive use.”

2. There is nothing in the material which would allow me to conclude, other than as a theoretical possibility, that the father would deliberately expose the child to pornography.  Likewise there is little in the material which would inform me either way as to whether the father may inadvertently expose the child to pornography.  The highest the evidence goes is in the report of Dr H, where at [59] he concluded:

   I suppose the issue here is whether the child might be at risk of being exposed to pornography and/or whether his exposure to a father who is preoccupied with pornography is appropriate.

3. Again, whilst the material cannot exclude the risk of the father inadvertently exposing the child to pornography, I assess the prospect of him doing so as low.

4. It is difficult to reach any firm conclusion as to the consequence upon a child of inadvertently stumbling across pornography.  There is no evidence before me as to the likely consequences, and inevitably there would be a number of variables which might come into play, including the type of material, the nature of any image, and the child’s initial reaction to it.  However I accept that there is a risk of some harm to the child, if there were inadvertent exposure to pornographic material. Nonetheless, again the net risk of harm is low.

Longer term risk of emotional harm

1. It is a little difficult to precisely formulate the nature of the harm which the mother asserts might ensue to the child if he were required to spend time with the father again.  Perhaps the best way of trying to state it is to use the mother’s own language in her affidavit.  At [17] she said as follows:

   … Asking this little child to go and face [the father] and spend time with him, will raise a lot of questions on his head which will need to be answered.  The orders state he should not be involved in this matter, however if he is exposed to this through supervised visits we will have to have discussions and explanations of why he must see [the father] a person who watches “naked children” as why it is “ok” after they teach him at school safety and ways to protect themselves and how to deal with situations like this should that present themselves.  Having to face [the father] and then going to go on with his life and school and seeing his friends will play in his head and he will be seeing other families and he will be feeling out of comfort and inadequate because of what his father has been charged with.  I had to look over my shoulder because of this fact.  I lost a lot of friends and took me years now to start realising and convincing myself that it wasn’t me and that I haven’t done anything wrong other than to marry a man that I didn’t know anything about.  I am grown up and have more understanding and it is still hard to deal with and make friends, so I am asking this question your Honour: “What are we asking of my son to deal with her? And; how will this shape his world and self-confidence? And; do we have to experiment with my son’s life and expose him to this situation, and if it affects him mentally and his ability to cope can we send him on therapy?”

   Should this happen your Honour, there is no coming back as this cannot be erased from his mind once it enters.  Yes, at this stage my son knows about what his father has done, but he doesn’t think about it, and he is not facing at all the time with this fact.  He of course misses having a father in his life as every child would, however he doesn’t want to see or speak with his real father.  My son wants us to have normal life with family with brothers and sisters however while we are facing this situation and having this overhanging above our heads its difficult as not many people will understand why we have do this or go through this. (Spelling and grammar in original).

2. Based upon this material, in her submissions, the mother emphasised that a child psychologist should give evidence as to the possible longer term impact upon the child of seeing the father.  Counsel for the Independent Children's Lawyer conceded that there was no evidence of the kind contemplated by the mother presently before the court.  Indeed the reality is that, other than the mother’s concerns, there is no material from which a conclusion either way, on an interim basis, can be drawn.  However doing the best I can, I am not satisfied that the risk identified by the mother, of some species of later life emotional turmoil for the child, is of such a likelihood as to preclude the child ever again speaking with or spending face to face time with the father.  Particularly, in the event that the child begins to manifest to stress, so long as his time is vigilantly supervised, and the supervisor has a power to suspend, defer or terminate the time, it seems to me that an appropriate safety valve likely exists.

Evaluation

1. I am satisfied that the father poses some risk of direct sexual harm to the child, however my assessment is that it is low.  Likewise I am satisfied that there is a low risk that the child may inadvertently be exposed to pornography if in the father’s care. 

2. However there are means of mitigating those risks, in the form of strict supervision.  Particularly, strict supervision would obviate any risk of direct sexual harm to the child, and wholly eliminate any risk of deliberate or inadvertent exposure of the child to pornography.  Supervision reduces those risks to nil.

3. As to the risk of some longer term, deferred, emotional harm to the child, I assess that as relatively low.  There is some risk that the child may later question his relationship with his father, if he becomes informed of the father’s possession of child exploitation material and conviction for it. However, again, there is a means available to somewhat mitigate that risk, in the form of supervision.  If the child is beginning to demonstrate distress, then the professional judgment of the supervisor – in this case a psychologist specialising in children’s matters – would be able to be brought to bear as to the appropriate response, and particularly whether the supervision continue or time cease.

4. Whilst that cannot, of course, wholly obviate the risks that the child might later in life, upon reflection on his time with his father, together with knowledge of the father’s conviction of possession of child exploitation material, experience some difficulties in reconciling the two, beyond speculation, there is no evidence from which I can conclude that the risk is of such a moment that it should preclude the father ever again speaking with, or spending time with, the child.

RELEVANT S 60CC FACTORS

1. It will be appreciated that I have, in the foregoing paragraphs, dealt with the second primary consideration enumerated in s 60CC(2).

2. As to the other primary consideration, I am satisfied that generally children benefit from having a meaningful relationship with both of their parents, and that the child appeared to benefit from having that relationship both pre-separation, and thereafter until June 2016.  Certainly there is nothing in the material which would cause me to think that the child is not likely to obtain some benefit from having a meaningful relationship with the father.

3. Turning then to the additional considerations, according to the mother, the child has expressed a desire not to see the father.  That is likely in substantial part because of what the mother has told the child in relation to the father, which I infer is likely to have been conveyed in a negative way. The child is eight years of age.  I give his views little weight.

4. The father has attempted to be involved in all areas of the child’s life, but has been precluded from doing so in consequence of the orders of November 2016.  There is some prospect that the child may demonstrate some resistance to again spending time with the father, but in my view that can be adequately managed by the psychologist supervisor. 

5. The father’s possession of child exploitation material, and use of pornography, may raise some questions in relation to his ability to provide for the emotional needs of the child, but it does not seem to loom large in these interim proceedings.

6. This is not a case in which family violence informs whether or not supervised time should occur.

SHOULD CHILD SPEND SUPERVISED TIME WITH FATHER

1. In my view, weighing the s 60CC considerations in the balance tells in favour of the child spending supervised time with the father, as such a regime is, in the child’s best interests.  Particularly I am satisfied that the risk of any harm ensuing to the child is adequately mitigated by strict supervision by a psychologist, and that the benefits to the child of having a meaningful relationship with the father strongly favours the proposal contemplated by the father, and supported by the Independent Children's Lawyer.

1. However there are other considerations other than the child’s best interests which militate in favour of those orders as well.  Particularly they are three fold.  The first is that judicial determination in relation to supervision of the father’s time with the child was first made by the Federal Circuit Court in November 2016, and those orders still prevail.  No appeal has been brought from them.  The father’s proposal does little more than change the identity of the supervisor from the E Town Contact Centre to the psychologist.  In a sense, the father’s application is only in relation to a machinery provision in the orders then made.

2. The second matter is that if a trial were to proceed without the father having commenced to again spend supervised time with the child, the question of supervision will be, as Mr Trevino, counsel for the Independent Children's Lawyer says, the fundamental focus of the trial.  That is to say, in the event that adequate safeguards for any risk such as supervision were then being contemplated, it is unlikely that final orders could be made, as the consequences and success of supervision will not be able to be confidently predicted.  The trial would only finally determine the proceedings if I was satisfied that the father presents such a risk of harm to the child that he should not ever again speak or communicate with him, at least during the child’s childhood.  A trial of supervision prior to the trial thus likely means that it will be able to produce final orders, rather than interim orders.

3. The third is that without the child again spending supervised time with the father, the nature of the present relationship between the child and father is not able to be assessed.  That again is likely to impede the smooth disposition of the matter at trial.  The trialling of supervised time will enable some assessment of their exact relationship, and particularly whether it remains intact, to be had.  Allied to this is a related point, namely that the longer that the child does not have an experience of the father in his life, the more likely it is that the child’s attitude will harden, and therefore the focus of the trial might be more upon effecting reunification, again with the prospect that only interim orders could be made.

4. Therefore not only are the best interests of the child served by an order for supervised time, but there are other practical considerations which makes such an order in the interests of justice.

OTHER MATTERS

1. During the course of his submissions, counsel for the Independent Children's Lawyer raised the prospect of the appointment of a s 65L supervisor to assist the mother to comply with the orders for supervised time.  However as I indicated to counsel and the mother, the time required, and the possibly extensive nature of s 65L supervision, is an important factor as to whether that resource should be deployed in this case, and it is further exacerbated by the present vacancy of one family consultant position in Cairns.  Whilst ideally, in many matters, s 65L assistance would be ordered so as to motivate the parties into compliance with orders, practical considerations in this case effectively preclude that.  Of course if the mother demonstrates some difficulty in complying with these orders, this matter could be revisited on application by the Independent Children's Lawyer or father.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 June 2018.

Associate:

Date:  27 June 2018