Dustin & Thorne  FamCA 88 (22 February 2016)
Sexual safety of children paramount: for full case http://www.austlii.edu.au/au/cases/cth/FamCA/2016/88.html
- 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, 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.
- The father was convicted for “indecent assault” in 1985, for which he was placed on 18 months probation, when he was only 17 years of age.
- 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. 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. 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  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 ;Michaels v Commonwealth (2002) 124 FCR 473 at -).
- 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. However, the mother was aware of other allegations of sexual impropriety against the father.
- 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, though she gave the father the benefit of the doubt and accepted his denial of the abuse. 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.
- 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.
- 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. 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.
- 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. 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.
- 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 the Evidence Act) or establishes the existence of an unacceptable risk of harm to the child (see M v M (1988) 166 CLR 69).
- 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.
- 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.Needless to say, conduct of that sort is anathema to the trust reposed in parents to nurture and care for children.
- 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.
- 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 and 2010, but she told the Family Consultant there had been no violence between them. Both parties told the Family Consultant they had yelled and argued as their relationship broke down, but importantly, the child informed the Family Consultant he could not recall any fighting between them and he perceived they got along well.
- 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. The existing interim apprehended violence order protecting the mother from the father was tendered. 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)).
- 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.
- 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.
<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.