Pornography and family law
Langley & Folett  FamCA 137 (8 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2014/137.html
A PRELIMINARY WORD
- In this matter it is not asserted that the father has sexually assaulted either N or B. Hence this is not a case where it might be asserted that because the father had abused a child in the past there may be an unacceptable risk or a likelihood or a probability that he would abuse the same child again in the future.
- In this matter there is a far more complicated matrix of reasons/assertions about the father which might lead to the conclusion that the father’s continuing to spend unsupervised time with or perhaps to live with the children might impose an unacceptable risk: perhaps physically; perhaps as a role model by encouragement or by permissive behaviour to the development and wellbeing of the children.
- As the father admitted to Dr D, the Single Expert retained in this matter, and also set out in some detail during the course of his own affidavit evidence and in cross-examination his has been a troubled life in many respects. He sets out in some detail the fact that when he was quite young he was seduced (he suggests) by his elder sister and had sexual intercourse with her when he was thirteen and fifteen. He also asserts that she encouraged and procured his engagement in a sexual relationship with his younger sister and that at least on one occasion they had full intercourse. Subsequently a child was born of that encounter. That young person is now an adult.
- The father, although decrying what happened to him, has it appears retained an interest in incestuous sexual relationships and it has formed a part of his pornography collection. This part of his pornography collection was contained in a hidden file on his computer which was discovered by the mother.
- It is also common ground that the father had commented to two of his children (from a previous relationship to the one with the mother) about their possible sexual attraction to each other. The evidence about what was said to whom is the subject of controversy. However, in this regard I prefer the evidence of C who gave evidence that her father suggested to her that she might be attracted to her brother and that he (the father) had seen the way she was looking at her brother. The father concedes that subsequently he spoke to E about this and suggested to him that the father thought that his sister may have some sort of physical attraction towards E. E in part corroborated that story.
- At or about that time, the father had shared with C his pornography collection. He describes this in somewhat matter of fact terms on the basis that if she was using pornography, he prefer that she used his collection because it was virus free. He concedes that part of the collection that he shared with her related to incestuous sexual relationships.
- The father in one of his interviews with the police attempted to justify his retention of some of the pornography on the basis that it was a valuable trading tool. His story to various people including to Dr D and to the police was not consistent. I accept that having Courts, police, psychologists and judges trawling through his personal sexual preferences would be an embarrassing and difficult thing. Curiously, I did not form the impression that the father was at all embarrassed about it and that makes his inconsistencies even less explicable.
- I am satisfied from the combined evidence of Dr D and the husband’s own recorded interviews with the police and his affidavit and his cross-examination that the father did have some interest in incestuous sexual relationships within a family. Whether this grew out of his early unfortunate experiences with his sisters it is difficult to say, nor am I qualified to pass an opinion about it.
- The father was concerned that the Single Expert had mistakenly recorded that he was interested in young women post pubescence. I do not accept that this was a mistake. The conclusion reached by the Single Expert was based on some self-reporting by the father about the level of attraction he had to females of various ages. He happily recorded that he had no attraction to men or to young girls. He did however record a “six out of ten” attraction towards young women in their early teens or thereabouts. As I pointed out during the course of addresses in this matter, it was easily open to the father to record a “zero” interest if indeed that was the case. He did so in relation to young girls and men. I think it is more likely than not, to the extent that I feel persuaded that it is so, that the father does have an interest in immediately post-pubescent young women. This is in part corroborated by the husband’s admission that he felt it was all right to fantasise about young women provided he did not do anything about it.
- Additionally, the husband had some cameras which he asserted were for use for security purposes. It is common ground, however, that he did use one of the cameras in his daughter C’s bedroom and there is no doubt that he did record material via this camera. There is no evidence that he recorded naked photographs of his daughter or of her undressing or anything of that sort. Indeed it would be strange if such footage existed as he claims, and C agrees, that he told her that the camera was in her room, he says for the purposes of catching her boyfriend entering through the window to see her (and presumably to have sex with her). C says that she put things in front of the camera to stop the camera from recording and the father, who was not a stupid man, must have realised having told her that the camera was there that this might occur.
- This makes nonsense of his view that the camera was there to record the boyfriend entering and leaving. It is faintly arguable, although not to the extent of convincing me, that he saw the camera as some form of deterrent to the boyfriend. Although the ease with which its surveillance could be circumvented does not make this likely. In my opinion it is more probable then not, and I feel a sense of persuasion that, the father had a prurient interest in C and the camera was one means of potentially at least satisfying that prurient interest.
- I am however not convinced by C when she describes how she awoke one night to feel something cold on her thigh and concluded without any apparent explanation as to why, that this was the father using his spy camera to photograph her naked genitals in bed. Her report of this incident records her seeing the father leaving the room when she was awakened. Although I consider it was possible that the incident may have involved the father engaging in the activities of which C suspected him, I could not feel a sense of persuasion that this must necessarily have been so.
- C also asserted the father physically abused her by placing his hands inside her panties and feeling her body generally. This appeared to have occurred during evening cuddles before bed, which became more extended apparently as time went by. The father denies that this happened at all. On balance I accept that it did happen substantially as reported by C. I come to this conclusion based on the evidence of both the father and C by a piece of corroborative evidence which related to the fact that C would on occasions wear different underclothes allegedly on the basis that this meant that she was in some way interested in the physical attention of her father. This is such an unusual story in that detail that in my opinion it has the ring of truth. That was supported in my assessment by the demeanour of C in the evidence that she gave.
- It was argued on behalf of the father that C should be disbelieved in whole. This was because she was not a witness able to recount precisely dates, times and other detail. I do not find that convincing as reasons for not accepting her evidence about other matters. I found the father’s evidence on most of these matters unconvincing except where corroborated by either another person or the external facts.
- It was also suggested that if this occurred why did C continue (in writing) to say that she loved her father and why did she permit him or cooperate in the activities that are complained of. In my opinion this criticism is misdirected. There is no doubt (and C confirms) that she did love her father. Consequently, she was undoubtedly concerned to please him and not to do anything to offend him. I do not find this inconsistent with the actions that it is asserted that her father was carrying out.
- It was also asserted that C had withdrawn her allegations and that this indicated that they were false and malicious. I do not accept this either. In the context as she explained it and which I accept, there was significant pressure on her to withdraw the allegations. Not only was this a question of her attitude to her father and her desire for his attention and affection, but I am satisfied that the father’s family put pressure on her to withdraw the allegations.
- In the witness box she gave the impression of being nervy and nervous and without any disrespect intended to her at all, she seemed somewhat immature. All of those are factors which would reasonably contribute to her decision to withdraw the charges, or perhaps more accurately to seek that the prosecution not continue and to indicate that she did not want to cooperate.
- And then there is the question of the father’s potential voyeurism (a condition which he freely admits he has) by taking up the skirt camera shots or looking up the skirts of women as they went up and down stairs. The father admits quite frankly that he had such material on his computer but says that he did not personally engage in taking photographs like that. I could not be satisfied to the requisite standard that he did in fact take such photographs although his use of the camera in C’s room, his possession of various cameras and his possession of material which someone produced, of the kind indicated, would generate suspicion, if not conclusion.
- And there is the question of violence. It is conceded that the husband and the wife’s relationship was tempestuous even though not long-lasting. It is accepted that there was a degree of physicality about the disputes between the parties. Curiously the husband wants to blame the mother for these encounters and minimises his own involvement. Even if there was a degree of mutuality, that does not excuse his behaviour and I accept, as indeed he himself conceded, most if not all of the violent actions occurred. Curiously he fails to agree that one of them did where it is asserted he threw the mother over a couch. This is not so different in kind or gravity as to have warranted a special category of denial, if I can put it that way. I could not be satisfied that that particular incident occurred but his frank admissions about what else he did allow no other conclusion but that he was violent during the relationship.
- There is also no doubt that he was engaged in the cultivation of marijuana and its consumption over a long period. He asserted to the Single Expert that this was to enable him to control his pain and his anger. He asserted he had given it up at or about the time that he was seeing the Single Expert but the question remains if this was his means of controlling his anger, what has happened to his anger since he stopped taking the marijuana?
- Arguably of more concern was the fact that he allowed, at least the older children, to be engaged in some way in the cultivation of the marijuana. This is part of the evidence of E. Whether or not the children knew what the plants were, or in particular their significance as drugs, the fact that the father was prepared to cultivate them in the presence of the children and possibly with their assistance shows a complete lack of boundaries and a lack of self-control – matters about which the Single Expert comments.
- Taking all of these matters into account, the concern in this matter is not so much that the father might physically assault B – although that may be a possibility. One matter of concern is the possibility that he may engender in the children, to some extent as he did with his two elder children E and C, attitudes about sex which are not consistent with ordinary community acceptability.
- It is not the place of this Court and in particular, it is not my place, to impose on any particular person before the Court Society’s and more particularly my attitudes to matters of sexual preference or activity. Nevertheless, in taking into account what is in the best interests of the children as to the Act requires that I do, it is important that I should at least take account of the fact that if the children are persuaded to engage in activities which may alienate them from the mainstream of societal behaviour, it is probable that this will not be to their advantage or in their best interests. It is reasonable for me to take judicial notice that incest is not an acceptable practice in Australia and would be regarded as deviant behaviour. In addition, I would be surprised if there are many people in the community in Canberra, in which the mother and the father and the children live at present, who would accept that it was appropriate for sixteen year old girls to be introduced to or at least confirmed in their use, of pornography in the way in which the father approached this matter with C.
- It seems at the very least that the father has interests outside the normal mainstream of sexual activities. (This was in part exemplified by his engagement in group sex on a number of occasions involving the mother.) In relation to this I accept the mother’s evidence not the father’s and I accept that he was the instigator and did so on the basis that he particularly wanted to have sex with the third person involved. This is corroborated (in part by at least) because in relation to one such incident it appears the mother was eight months pregnant at the time.
SUMMARY ABOUT RISK
- This combination of factors based on the findings that I have made above would lead me to conclude that while there may be no single act referred to above which would necessarily allow me to conclude that there was a compelling case that B might be at physical risk from her father, the combination of factors would lead me to conclude that overall there would be an unacceptable risk to the best interests of both children if they were to have substantial time with their father.
- That risk would include, but not be confined to, the real possibility of the inculcation in them of attitudes which may affect their ability properly to develop and grow as young adults in contemporary society.
- In the ordinary course of events, that could lead me to conclude that this was a matter in which it would not be in the children’s interests to spend time with their father at all. However, that is not what the mother has sought nor what the Single Expert recommended. (It is of course a long way from what the father has sought.) In such circumstances, I need to determine whether a risk to the children of abuse, whether physical or psychological, would be substantially obviated if the time that the children spent with their father were to be supervised.
- To some extent determining whether any risk is acceptable or not depends on the nature of the risk, the probability that it might occur and the protective mechanisms that might prevent it from occurring. If the father were never to see the children again that may remove both the possibility of his influence on, or his physical activities affecting the children.
- That appears however to be at odds with the views expressed by both the mother and the Single Expert about the importance to the children of their relationship with their father. The father of course agrees that it is very important for him to have that relationship with the children and for them to have a relationship with him. If the children are with the father and a vigilant and protective supervisor, the possibilities of either physical, emotional or psychological abuse would be reduced to a marked degree.
- Such a qualification has a number of drawbacks. On an interim basis, the parties had agreed on the father’s younger sister being the supervisor. There is no suggestion that that supervision has not worked adequately. However, it is detectable that “PA” (as the father refers to her) is, reasonably enough, no longer quite as enthusiastic about spending the time that she must necessarily spend in her supervisory activities.
- In the most recent reopening of evidence the father is suggesting that his father should be the supervisor as he is now living with the father. The mother rejects this possibility saying among other things, that the children’s grandfather is too frail. There is no medical evidence about his condition at all. However, it has to be said that the father’s evidence about his early life does not lead to a conclusion that he had a strong and effective relationship with his father at all. I have no evidence about the current state of that relationship and none was proffered by the father when he was offered an opportunity to reopen his evidence in these proceedings. I am mindful of the father’s criticism of his father as reported to Dr D.
- A professional supervisor such as those at Canberra F Services or one of the other commercially-based organisations would satisfy the relevant criteria but would limit the opportunities for the time that the children might have with their father on this supervised basis.
- This gives rise to the added complication that the mother wants to go to live in Newcastle. If that was so, it is common ground that it would take a five hour drive between Canberra and Newcastle for either parent and the children to enable time to be spent by them with their father. Moreover, although the mother gives evidence about, and I accept that there would be an opportunity for a professionally supervised time for the children with their father in Newcastle, the expense and detail of that were not available to me.
- This means that if the mother were to relocate to Newcastle; and the children were to continue to spend time with their father; and there was a requirement for professional supervision, this would have to happen either in Newcastle, or alternatively, on the mother’s bringing the children to Canberra with a professional in Canberra.
- The mother earns a reasonable amount of income. The father is dependent upon (essentially) his pension. I say this without knowing what his current state of employment is. At the end of the trial he had obtained employment as a manager for G Org. The details of that employment including what he is paid and what he might put aside for example, for the purposes of paying for supervision, were not put into evidence. Prior to that time he had been unemployed for a very long time. His obtaining of employment even if it were in some measure incited by these proceedings is to his credit and no adverse inference should be drawn in relation to it.
- However, whether the husband’s income would be enough to pay for his travel to Newcastle on a regular basis and, for the supervision of the time spent with the children when he was there, is unknown to me. There is no particular nominated reason such as a job, or a course of study, in which the husband is engaged or (so far as the evidence provides) a partner in Canberra, who would be unwilling to move, so as to prevent the father from moving to Newcastle if he wished to do so. Some of the practical difficulties mentioned above might be overcome if he were to move.
- It is obvious, that if I were to make orders which required the children to remain in Canberra, it would be simpler to arrange supervised time, because the travel would be eliminated for them. The question however, remains, whether it would be reasonable to impose such a burden on the mother who does not want to live in Canberra, for the express purpose of enabling the children to potentially derive some benefit from a relationship with their father.
- It is to be noted s 60CC(3)(a) talks about the benefit to the children of the relationship not the desirability of the relationship itself.