Sexual misconduct too great a risk

Sexual misconduct too great a risk

Dustin & Thorne [2016] FamCA 88 (22 February 2016)

FAMILY LAW – PRACTICE & PROCEDURE – Where the father disengaged from the litigation, but was afforded procedural fairness and it was appropriate for the proceedings to be determined in his absence

FAMILY LAW – CHILDREN – Best Interests – Where the child has not seen or spoken to the father for some two years – Where the child formerly enjoyed a close and loving relationship with the father – Where the father poses an unacceptably high risk of physical and psychological harm to the child by his subjection of the child to sexual abuse – Where there is no satisfactory way in which to attenuate that risk – Child to live with the mother – Where the child should not spend any time with the father – Where the mother will decide, as an incident of her exclusive parental responsibility for the child, whether he ever spends time with the father – Where the father is permitted to send occasional written correspondence to the child, but is otherwise restrained from approaching the mother’s home or the child’s school

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where such an order would be repugnant to the child’s best interests – Where the mother should have exclusive parental responsibility for the child

The following is annotated. For full case:


Section 60CC(2)(a)

  1. The child derives benefit from the meaningful relationship he enjoys with the mother, which arrangement should not be disturbed. So much is obvious and was uncontroversial even when the father was involved in the litigation.
  2. The nature of the child’s relationship with the father and his derivation of benefit from it is, however, quite another matter. The child and father formerly enjoyed a close and loving relationship, but such an inference is not so readily open now.
  3. When the family met with the Family Consultant nearly two years ago in May 2014 it was clear the child loved and missed the father.[8] They last spent time together before the father’s arrest in June 2013 and they last communicated by telephone in November 2013.[9] The child was overjoyed to see the father with the Family Consultant in May 2014 and exuberantly expressed his desire to spend time with him.[10]
  4. The interim parenting orders made in October 2013 precluded the child from spending any time with the father and the apprehended violence orders later made by a State court for the protection of the mother and child understandably deterred the father from communicating with the child by telephone. The practical result was, therefore, an absence of any contact between the child and the father. Aside from their contact in the presence of the Family Consultant on that solitary occasion in May 2014 and a letter the child received from the father about one week afterwards,[11] they have had no interaction at all for more than two years.
  5. The strength of the child’s relationship with the father must consequently have waned to some degree and, given the importance of their former relationship to the child, steps could ideally now be taken to restore it. However, the evidence about the risk of harm posed by the father to the child’s physical and psychological safety militates against such an outcome. Protection of the child from harm is a higher priority than the recovery of his meaningful relationship with the father (s 60CC(2A)).

Section 60CC(2)(b)

  1. The evidence adduced against the father tended strongly to suggest he is a threat to the sexual safety of children. His pre-disposition to the sexual molestation of children might be explained by his own sexual victimisation as a child,[12] but the explanation for his behaviour and any empathy it may attract is beside the point. Whatever its cause, the risk he poses to children is an overwhelming factor in the determination of these proceedings, the outcome of which must reflect the child’s best interests.
  2. The father was convicted for “indecent assault” in 1985, for which he was placed on 18 months probation,[13] when he was only 17 years of age.[14]
  3. In 1995, he was convicted on two counts of “indecent assault of a person under 10 years of age”, for which he was sentenced to 20 months imprisonment.[15] At the time of those convictions the father was 27 years of age. The victim of the offences must have been less than 10 years of age by reason of the nature of the charges. The father’s assertion to the Family Consultant that the child victim was older could not have been correct.[16] Moreover, the father’s protestation of innocence of those charges must be disregarded. By his own admission, he defended the charges but was convicted nevertheless. The convictions are decisions in rem by the State court conclusively proving his commission of the offences (see Saffron v Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19 at 21; Rogers v The Queen (1994) 181 CLR 251 at 274; NSW Bar Association v Somosi (2001) 48 ATR 562 at [80]; Michaels v Commonwealth (2002) 124 FCR 473 at [31]-[49]).
  4. The mother was oblivious to the father’s convictions for those offences during the parties’ relationship. She was genuinely surprised when informed of them by the Family Consultant in 2014.[17] However, the mother was aware of other allegations of sexual impropriety against the father.
  5. The father has an older child (“C”) and a step-child (“D”) from an earlier relationship. In about 2006, during the parties’ relationship, the mother learned of an allegation that the father sexually abused both C and D when they were young children,[18] though she gave the father the benefit of the doubt and accepted his denial of the abuse.[19] Although the father was never charged for the sexual assault of either C or D, there was likely some reasonable basis for the allegation because a State court made an order of two years duration precluding any interaction between the father and C.[20]
  6. After the parties’ separation in 2007, the mother maintained contact with C. She even allowed C to live with her for a period. In or about 2013, while the father was remanded in custody, the mother accompanied C to the father’s home to enable her retrieval of some belongings. While at his home, C found a photograph of a child’s genitalia in a drawer. Other similar photographs were found on the father’s computer and on a USB stick. The children depicted in the photographs were believed to be the father’s two young nieces. Although not charged with any offence, in April 2014, the father consented to an apprehended violence order being made against him for the protection of those two nieces for a period of five years. He is now estranged from his sister, who is the mother of those two children.[21]
  7. The father denied his responsibility for the photographs when he discussed the matter with the Family Consultant. He alleged the photographs had been left at his home by others while he was imprisoned.[22] That is, of course, possible, but hardly probable. The father’s bare denial of responsibility is not strong evidence in the face of his past proclivity for the sexual molestation of children, the unlikelihood of another person saving some of the objectionable photographs on the father’s own computer, his sister’s insistence on obtaining an apprehended violence order against him for the protection of her children, and his consent to that order for such a long period of time. The father’s failure to give sworn evidence of his denial and to submit himself to the searching test of cross-examination in these proceedings is not used against him. It would be unfair to do so when it was known he wished to preserve his privilege against self-incrimination in respect of other child sexual assault charges and these proceedings were determined in his absence sooner than he desired.
  8. The photographs of the father’s nieces’ genitalia were found at his home contemporaneously with his arrest on those other charges. In June 2013, the father was arrested for the sexual assault of a minor about three years before. He allegedly digitally penetrated a 12 year old girl, who was then his nephew’s girlfriend, while his nephew and the child played nearby.[23]The father was initially denied bail when arrested, but it was granted some months later in November 2013. The father denies the two charges of “aggravated sexual assault” and, according to information imparted to this Court, his jury trial will proceed before a State court some time during 2016.
  9. The father is plausibly innocent of the most recent charges brought against him. His guilt must be proven beyond reasonable doubt (s 141(1) of the Evidence Act 1995 (Cth)) and, failing proof to such high standard, his presumption of innocence will remain intact. But neither his present nor eventual presumption of innocence precludes this Court from determining what parenting orders most appropriately reflect the child’s best interests, which decision is influenced by evidence that either meets the less demanding civil standard of proof (s 140 of theEvidence Act) or establishes the existence of an unacceptable risk of harm to the child (see M v M (1988) 166 CLR 69).
  10. In view of the father’s past irrefutable convictions for sexual abuse, his possible sexual abuse of C and D, his probable involvement of his young nieces in sexually improper photographic poses, and his possible sexual abuse of his nephew’s girlfriend – all of which occurred over many years between 1985 and 2010 – the father poses an unacceptably high risk of physical and psychological harm to the child by his subjection of the child to sexual abuse.
  11. As the Family Consultant reasonably opined, if the father acted in that way, it would demonstrate his misuse of the inherent power imbalance that existed between him and the children concerned. Lack of impulse control enabled exploitation of the power imbalance for his own gratification at the expense of the children’s protection. If the conduct entailed persistent grooming and was not confined to impulsive opportunism, it was even more insidious.[24] Needless to say, conduct of that sort is anathema to the trust reposed in parents to nurture and care for children.
  12. There is no satisfactory way in which to attenuate that risk other than by preventing the child from spending any time in the father’s care.
  13. Although some limited evidence was adduced about conduct between the parties that was capably construed as “family violence”, it was not such as to engage s 60CC(2)(b) of the Act and motivate the need to protect the child from it. The mother deposed to some isolated incidents of threatening behaviour by the father in 2008[25] and 2010,[26] but she told the Family Consultant there had been no violence between them.[27] Both parties told the Family Consultant they had yelled and argued as their relationship broke down,[28] but importantly, the child informed the Family Consultant he could not recall any fighting between them and he perceived they got along well.[29]


  1. Given the overwhelming significance of the finding that the father constitutes an unacceptable risk of harm to the child, the additional considerations stipulated by s 60CC(3) of the Act almost all fall away. Little, therefore, need be said about them.
  2. Despite the mother’s worry about the child’s safety with the father, she has not denigrated the father in the child’s presence, nor cut him off from contact with other members of the paternal family. Knowing the child missed the father, the mother and maternal grandmother both told him he was free to speak about the father with them and they assured him the father still loved him.[30] The mother also allowed the child to occasionally spend time with the paternal grandmother, paternal aunt, and paternal cousins.[31] Such behaviour manifests the mother’s sensitivity to the child’s emotional needs and inspires confidence in her parenting capacity.
  3. The child enjoys relationships with C, D, and the two paternal cousins who remain protected from the father by an apprehended violence order, all of whom possibly experienced sexual molestation at the hands of the father. For his part, the father maintains his denial of any impropriety with any of them. As the Family Consultant envisaged, there are likely to be “significant psychological impacts” for the child in the future when he has to reconcile the adverse information imparted about the father by C, D, and his cousins and the father’s denials of any impropriety with them. As he ages and matures, it will be increasingly difficult for the child to maintain harmonious relationships with the father on the one hand and with his family members on the other. The conflict of loyalty will likely place him under considerable pressure, which pressure might only be relieved by the abandonment of one or more of those relationships.[32] That is an additional reason why the child’s relationship with the father should not be rejuvenated. It would risk forcing the child to reject the father and incur the guilt such a decision would necessarily entail.


  1. When orders are to be made under Part VII of the Act, the Court is required to apply a rebuttable presumption that the child’s best interests are served by an order allocating equal shared parental responsibility for the child to the child’s parents (s 61DA).
  2. That presumption is the starting point because it has the potential to dictate the child’s living arrangements under s 65DAA of the Act (Goode v Goode (2006) FLC 93-286 at [56]), but the presumption does not apply in certain circumstances (s 61DA(2)) or may be rebutted if the Court is satisfied such an order would not be in the child’s best interests (s 61DA(4)).
  3. The evidence is not sufficiently persuasive of the existence of reasonable grounds to believe either parent engaged in family violence or abuse of the child, so s 61DA(2) of the Act is not thereby enlivened. It is unnecessary to consider whether the father’s possible past engagement of C, D, or his paternal nieces in sexual activity engages s 61DA(2) of the Act because, even if the presumption of equal shared parental responsibility applies, it is nonetheless rebutted by the evidence which capably proves such an order would be repugnant to the child’s best interests (s 61DA(4)).
  4. The parties have not communicated with one another for years. The mother can hardly bear to do so. She now believes the father sexually abused C, engaged his paternal nieces in sexual misconduct by having them submit to pornographic photographs, and sexually assaulted his paternal nephew’s girlfriend. She has no trust in him. All decisions about “major long-term issues” (s 4) in the child’s life have been made unilaterally by the mother since the father’s arrest in June 2013. It would be foolhardy to now make an order forcing her to re-engage with the father over important decisions about the child’s future. She could not genuinely muster the civility, trust, and respect as the law would require of her to do so (s 65DAC).
  5. The mother should have exclusive parental responsibility for the child, given he will continue to live with her.
  6. The child should not spend any time with the father, as he poses an unacceptable risk of harm to the child. No evidence was adduced to suggest that personal interaction between the child and the father could be permanently supervised to ameliorate the risk. The father implicitly acknowledges that supervision is not a viable option. First, he agreed to interim orders in October 2013 that the child not spend any time with him, even if he secured his release on bail as he planned. Secondly, he has not made any effort to see the child since he was released on bail in November 2013. Thirdly, he abandoned his contest of these proceedings in full knowledge the mother was seeking orders to preclude any further face-to-face interaction between him and the child.
  7. The mother will decide, as an incident of her exclusive parental responsibility for the child, whether he ever spends time with the father, so the orders make no express provision for it. However, to avoid any potential for the father to frustrate the mother’s current intention to preclude the child from spending time with him, the orders include an injunction restraining the father from attending at, or near to, the mother’s home and the child’s school.
  8. Significantly, the mother only sought orders which had the effect of precluding the child from spending time with the father. She did not seek to destroy all lines of communication between them. On the contrary, when the father sent a letter to the child in about June 2014 she gave it to the child and the father’s failure to provide a return address was the only reason a reply was not sent.[33] Until recently, the mother lived with the child in E Town and willingly disclosed her address there,[34] but she informed the Court at trial she now lives back in the F Town area and also willingly disclosed her address there. There is no reason why the father should not be able to communicate in writing with the child via that address. The orders permit him to do so, though of course it will be up to him whether he avails himself of the order. He would be wise to do so occasionally if he wants to maximise the chance of the child wanting to renew their acquaintance when he is old enough to make that decision for himself.
  9. The orders require the parties to keep one another informed of their current address and mobile telephone number. If written communication is to occur between the child and father, the father and child need to know where correspondence between them is to be sent.
  10. The orders will contradict an existing apprehended violence order, which situation needs to be explained. Over recent years, State courts made separate apprehended violence orders for the protection of both the mother and child from the father.[35] The existing interim apprehended violence order protecting the mother from the father was tendered.[36] It was last made in April 2015 and extends until March 2016. It was an agreed fact between the mother and Independent Children’s Lawyer that the separate apprehended violence order made for the child’s protection was discharged in April 2015, contemporaneously with the interim order being made for the mother’s protection. It was jointly contended in these proceedings that the child is now a “protected person” under the interim order made in favour of the mother because of the “domestic relationship” between them (ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).
  11. The terms of the existing interim apprehended violence order preclude the father from establishing any kind of contact with either the mother or child, except through a legal representative. That restriction directly contradicts the orders which permit occasional written communication between the father and child, which communication should desirably occur to promote the child’s best interests, because it is important for the child to know the father has not abandoned him. No child should be troubled by the agonising doubt about what has become of a loved parent and whether their love for that parent is reciprocated.
  12. The parenting orders specify the inconsistency with the apprehended violence order and explain how the parenting orders will operate, as required by s 68P(2)(a),(b) of the Act, and the following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:
      <li “=””>(a) The parenting orders are inconsistent with paragraph 7 of the apprehended violence order made by the Local Court of NSW because (assuming the child is also a “protected person” under the order by reason of his “domestic relationship” with the mother) they permit the father and child to contact one another in writing other than through a legal representative.
  13. <li “=””>(b) The orders also oblige the father and mother to contact one another so their respective contact details are known, though such contact may be established through legal representatives so as to comply with the apprehended violence order.<li “=””>(c) It is necessary to make parenting orders which are inconsistent with paragraph 7 of the apprehended violence order to promote the child’s best interests, since his best interests are promoted by him occasionally communicating with the father. That will be aided by the mother and father keeping one another appraised of their contact details.<li “=””>(d) The parenting orders set out how the child is to communicate with the father.<li “=””>(e) The parenting orders do not require breach of paragraphs 1(a), 1(b), or 1(c) of the apprehended violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the apprehended violence order may be consistently obeyed.<li “=””>(f) Contravention, variation, or revocation of the apprehended violence order will be dealt with by prosecution or application in the Local Court of NSW.<li “=””>(g) Contravention or variation of the parenting orders will be dealt with under the terms of the Act.

  1. The father may be interested in the child’s academic progress and his changing appearance. For that reason the orders require the mother to authorise the child’s school principal to provide the father with copies of school reports and photographs, if the father requests. The mother and Independent Children’s Lawyer did not actively oppose such an order when it was raised in final submissions.


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