CHAKROUN & BILEL

[2015] FCCA 1505

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAKROUN & BILEL [2015] FCCA 1505

Catchwords:
FAMILY LAW – Parenting – interim – allegations that the father accessed child pornography – whether there is an unacceptable risk of abuse.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1)

Ainsworth v Burden (2005) NSWCA 174
Banks & Banks [2015] FamCAFC 36
Goode & Goode [2006] FamCA 1346
Murphy & Murphy [2007] FamCA 795
Redmond & Redmond [2014] FamCAFC 155
Sieling & Sieling (1979) FLC 90-627
SS & AH [2010] FamCAFC 13

Applicant: MR CHAKROUN

Respondent: MS BILEL

File Number: SYC 7688 of 2014

Judgment of: Judge Kemp

Hearing date: 21 May 2015

Date of Last Submission: 21 May 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Clifford

Solicitors for the Applicant: Cameron Gillingham Boyd

Counsel for the Respondent: Ms Winfield

Solicitors for the Respondent: Zali Burrows Lawyers

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. By consent, the child, [X], born [omitted] 2011 (“the child”) live with the mother.

2. The father spend time with the child as follows:

   (a)In Week 1, from 10.00am to 3.00pm on Tuesday and 10.00am Friday to 7.00pm on Sunday, such first week commencing on Monday 8 June 2015.

   (b)In Week 2, from 10.00am to 3.00pm Tuesday and from 10.00am to 3.00pm Thursday, such second week commencing on Monday 15 June 2015

   (c)As, otherwise, agreed between the parties.

3. The father’s overnight time to occur at his parents’ home and to be supervised from 6.00pm Friday to 9.00am Saturday and from 6.00pm Saturday to 9.00am Sunday, with such supervision to be provided by either one of his parents and/or sister and with an undertaking as to supervision to be filed in the usual form, prior to the commencement of such overnight time.

4. The father be restrained, on a without admission basis, from doing any act or thing to access pornography on any phone, iPad, laptop, PC, TV or DVD in his possession at any time while the child is in his care, pursuant to these orders.

5. That in the event that the father becomes aware that pornography has been received on his phone, iPad, laptop, PC, TV or DVD in his possession while the child is in his care pursuant to these orders, then the father shall forthwith do all acts and things to delete any such material.

6. The father shall ensure that the child not have access to any computer, iPhone, iPad or other device on which the father has viewed pornographic material.

7. The father shall ensure that the child’s access to electronic media devices be limited to child appropriate programs.

8. The documents in Exhibit “1” and Exhibit “D” shall not be viewed or photocopied, without leave of the Court.

9. The proceedings stand over to 30 October 2015 at 9.30am for mention.

IT IS NOTED that publication of this judgment under the pseudonym Chakroun & Bilel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7688 of 2014

MR CHAKROUN

Applicant

And

MS BILEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 19 December 2014, the father seeks interim parenting orders in respect of the child of the relationship, [X] born [omitted] 2011 (“the child”), currently aged 3 years, as follows:

   a)The parties have equal shared parental responsibility for the child.

   b)The father spend time with the child in Week 1, from 10.00am Friday to 3.00pm on Tuesday and 10.00am to 7.00pm on Sunday.

   c)The father spend time with the child in Week 2, from 10.00am to 3.00pm Tuesday and from 10.00am to 3.00pm Thursday.

   d)As, otherwise, agreed.

2. Given the interim nature of these proceedings and the age of the child the Court does not need to deal with the father’s proposed order for the child to live with him when she turns 5 years of age.  The Court questions the utility of including this order in his interim application as it appears to be more in the nature of a final order, in any event.

3. The respondent mother in her Response filed 16 March 2015, seeks her own interim parenting orders as follows:

   a)The mother have sole parental responsibility for the child.

   b)The child live with the mother.

   c)The father spend supervised time with the child at a contact centre for 2 hours each Saturday.

4. On 16 March 2015, interim consent orders provided for the child to live with the mother and for the father to spend supervised time on a “without-admission” basis with the child for two hours from 12 noon to 2 pm each Saturday commencing on 21 March 2015 at the [omitted] Playland & Café, with the father’s time being supervised by either [names omitted].  The orders also provided that the father was limited to having no more than one member of his family attend with him and that the mother not be permitted to attend during the father’s time.  Relevantly, order 13 also provided that the father be, and is hereby restrained, from approaching any school or childcare centre that the child may attend from time to time and from causing or allowing any other person to approach any such school.

5. There were other consequential orders including mutual non-denigration orders, communication orders and a restraint against the parties from removing the child from the Commonwealth of Australia, together with an Airport Watch List order.  Orders provided for a restraint from obtaining a passport for the child, without the consent of the other party, and for the father to deliver the child’s passport to his solicitor on the condition that such passport not be released to any person, without further order of the Court.

6. On the hearing, Ms Clifford of Counsel appeared for the father and Ms Winfield of Counsel appeared for the mother.

7. At the interim hearing, the mother stated that she no longer pressed the orders for a contact centre but was content with a continuation of the current supervised time each Saturday.  The mother was also prepared to accede to a change of venue as promoted by the father, [omitted] and for such time to be on a Sunday with an expansion of time to three hours.

8. Therefore, the matter for determination is, effectively, whether the father’s time with the child should continue to be supervised and, if not, whether it should be increased and if so, by how much.

Evidence

1. The father relied on the following:

   a)his affidavit sworn 19 December 2014 and filed on that day;

   b)his affidavit sworn 12 March 2015 and filed on 13 March 2015;

   c)his affidavit sworn 13 May 2015 and filed on that day;

   d)the affidavit of his sister, Ms N, sworn 11 March 2015 and filed on 14 May 2015;

   e)the affidavit of his mother, Ms C, sworn 13 May 2015 and filed on 14 May 2015; and

   f)paragraphs 25, 28, 32 and 34 of the mother’s affidavit sworn 15 March 2015.

2. The mother relied on her Affidavit sworn / affirmed on 29 April 2015 and filed on that day.

3. The father objects to the admissibility of paragraph 53 of the mother’s said affidavit including the tender of documents placed in a sealed envelope (Exhibit “1”) pursuant to s.135 and/or s.136 of the Evidence Act 1995.

4. The Court, permitted the mother to rely on paragraph 53 of her affidavit which stated that on 5 March 2015, she had seen “porn” subscriptions on the husband’s email.  She says that she checked the subscriptions and found that they were dated since March 2013 and had come from the father’s other email account, namely, [omitted].  The mother said that she had opened the subscriptions and seen numerous websites and images of “underage” girls that looked between the ages of 10 to 16 years, even those titled “18 Year Old Teens”, “Young School Girl Teens”, “Amateur Teens”, “Amour Angels”.  The mother exhibits to her affidavit and places in a sealed envelope copies of those images and websites. 

5. When the matter came before the Court on 16 March 2015, the Court had directed that the parties’ legal representatives confer with respect to the issue of restricted material referred to in the mother’s affidavit and  tendered on that occasion and placed in a sealed envelope and marked Exhibit “1”.

6. The father also objected to the tender of the documents in the said sealed envelope, pursuant to the above mentioned sections of the Evidence Act.  The Court has ruled against the father’s objection. 

7. Pursuant to s.135 of the Evidence Act, the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party, or (b) being misleading or confusing, or (c) cause or result in undue waste of time.

8. Evidence is not unfairly prejudicial to a party merely because it tends to damage the case of the party or support the case of an opponent.  See Ainsworth v Burden (2005) NSWCA 174 per Hunt AJA (Handley & McColl JJA agreeing). The risk of an unfair prejudice is that there is a danger that the fact finder may use such evidence to make decisions on an improper, perhaps emotional basis, logically unconnected with the issues in the case.

9. As the Court understands the matter, the mother’s objection to the father spending unsupervised time with the child was primarily based on him accessing the websites, upon which copies of various images have been placed in Exhibit “1”.

10. From the mother’s perspective it would be important for the Court to have regard to the evidentiary basis for that position, given her asserted concerns.  The Court deals with this application for exclusion on an interim hearing basis.  The Court in considering the weight which could be afforded to any such material does so, aware that the material cannot be tested by way of cross-examination at this point in time.

11. The father is not procedurally prejudiced given that he has been able, himself, to access the material and, indeed, has comprehensively responded to it in terms of his affidavit and, further, he has gone on to explain a number of matters relevant to that material.  The Court accepts, in that regard, that he has not been unfairly prejudiced by its receipt from raising issues as to its reliability and, indeed, as to the weight which the Court should afford such material.  To that extent, he has explained why the material might be misleading or confusing.  Its receipt would not cause or result in any undue waste of time in the circumstances. 

12. In terms of s.136 of the Evidence Act, the Court may limit the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing.  In that regard, the Court must consider whether the probative value of the material and the importance of it outweighs any particular danger and whether that danger may be reduced by some other action.  Of course, the nature of these proceedings must be considered on the application of the Court’s discretion.  In the circumstances, the Court deals with the assessment of an unacceptable risk to a child.  The Court is of the view that it should not exercise a general discretion to exclude the material, as it considers the importance of the material, given the mother’s asserted concerns, outweighs any particular damage so identified.  The Court is of the view that, without receipt of the documents as tendered by the mother, the father’s documents and his explanation as to that material would make little or no sense.  As said, the fact that the father has been able to deal with the evidence in a comprehensive manner, as set out in his affidavit, persuades the Court that any discretion to exclude should not be exercised.

13. The Court will, however, impose a restraint which will ensure that the material, both in Exhibit “1” and in the father’s responsive documents contained in Exhibit “D”, be placed in a sealed envelope not to be viewed or photocopied, without leave of the Court.

14. The Court has received a number of exhibits as follows:

    a)Exhibit “A” being pages numbered 1, 2 and 3 from documents produced by the NSW Police in response to a subpoena.

    b)Exhibit “B” being correspondence from Cameron, Gillingham & Boyd to Zali Burrows Lawyers dated 8 January 2015, 2 February 2015 and 23 February 2015.

    c)Exhibit “C” being the mother’s affidavit sworn 15 March 2015, tendered as to paragraphs 25, 28, 32 and 34.

    d)Exhibit “1” as referred to above.

    e)Exhibit “2” being documents produced by the NSW Police with pink tags attached.

    f)Exhibit “D” being the exhibits AC1 through to AC16 referred to in the father’s affidavit of 13 May 2015.

    g)Exhibit “Court 1” being an agreed “short history”.

15. Incorporating Exhibit “Court 1”, the Court notes the following:

    a)On [date omitted] 1983, the father was born in [omitted] and he is now 31 years of age.

    b)On [date omitted] 1989, the mother was born in Sydney and she is now 25 years of age.

    c)On [date omitted] 2008, the parties met.

    d)On [date omitted] 2009, the parties married and commenced cohabitation.

    e)On 8 July 2009, the mother says that she first saw pornography on the father’s computer.  The father denies this.

    f)On [date omitted] 2011, the child was born and the child is now three years and six months.

    g)On 14 September 2014, the parties separated when the mother left the former matrimonial home and took the child with her.

    h)On 14 January 2015, the father, his mother and two sisters went to the child’s childcare centre.

    i)On 20 November 2014, the mother went to the police about child pornography on the father’s computer.

    j)On 6 March 2015, the mother again reported child pornography on the father’s computer to police.

    k)The father currently lives with his parents at [omitted]. 

    l)The father works in his father’s [business omitted] and says that he has flexible work hours. 

    m)The father has two sisters aged 24 and 20 years and the father says that his family follows the Islamic faith. 

    n)The father holds a Bachelor of [omitted] from the University [omitted] and works as an [occupation omitted].

    o)The mother currently lives in [omitted] which the parties agree is some 15 to 25 minutes by car from the father’s residence.

    p)The mother currently attends university as a full-time student and is doing a Bachelor of [omitted] degree at the University [omitted].

    q)Given the father’s working arrangements and the mother’s study arrangements, the child has been attending the Good Start Early Learning [omitted] since February 2013 for four days and then the [omitted] Day Care for three days per week and has continued in that regime up until the present time. 

    r)On 19 December 2014, the father commenced these proceedings in the Family Court of Australia, which were subsequently transferred to this Court on 23 December 2014.  He had filed an earlier Initiating Application on 9 December 2014, but this was withdrawn following a Notice of Discontinuance filed on 19 December 2014.  On its face, it appears that the father was trying to seek an earlier first return date. 

Principles to be applied and procedure to be followed

1. The best interests of the child remain the paramount consideration (s.60CA of the Act).

2. The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:

   (1) The “objects”…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” … are … :

   (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 been 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 a right to enjoy the culture with other people who share that culture).

   (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

   (4)   In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:

   “(a)   Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute;

   (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.”

The Limitations of an Interim Hearing

1. The Court hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.

2. The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties’ legal representatives.  There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.

3. The combined practical effect of sections 60B, 61DA and 60CC of the Act is that on an interim basis is that the Court may have little practical alternative other than weighing the probabilities of the parties respective claims and balancing the questions of risk.

4. In this regard, the Full Court of the Family Court of Australia in Redmond & Redmond [2014] FamCAFC 155 acknowledged the limitations of interim hearings when determining questions of disputed facts. In response to the father’s submission that the trial judge should have ignored or disregarded any allegations or matters of disputed fact that were adverse to the father on an interim hearing, the Full Court noted that:

   This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.

5. This “weighing up” or balancing of risk, the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 (Boland and Thackray JJ), stated that:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  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. 

6. Further, in the decision of Banks & Banks [2015] FamCAFC 36, the Full Court of the Family Court of Australia stated that:

   By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.   

   …

   Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   
   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors. [Emphasis added]

Identification of Competing Proposals

1. The Court refers to paragraphs 1, 3 and 7 above, setting out the parties’ competing parenting proposals.

Presumption of equal shared parental responsibility

1. Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.

2. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for the parents to have equal shared parental responsibility (s.61DA(4) of the Act).

3. The Court finds that, given that these are interim proceedings and given the untested nature of the allegations against the father (considered further below), in accordance with s.61DA(3) of the Act, it would be inappropriate, in the circumstances, for the presumption to be applied.

Time to spend

1. Because the presumption is not applied, the operation of s.65DAA(1) of the Act is not triggered, at this stage. The issue of the child’s time with the father is at large and must be considered in terms of the best interests of the child.

2. Neither party is seeking an equal time regime.  The father is seeking what could be described as substantial and significant, given that he will be able to have an involvement with the child’s day care centre on a day time basis and on an overnight basis in an alternating weekend time scale. 

Supervised time

1. The basis for a supervision order was described by Carmody J in Murphy & Murphy [2007] FamCA 795 as follows:

   “Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”

2. As to the issue as to whether the father’s time with the child would need to be supervised, the father says that it does not but, nevertheless, he proposes that his mother and his sister supervise.  Both of those persons have provided affidavits indicating that they are aware of the allegations made by the mother and express to the Court their understanding of their obligations to ensure that the child is not exposed to any inappropriate behaviour or content by the father.  The Court accepts those persons as being appropriate supervisors.

Primary considerations

1. In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in s.60CC(2)(b) of the Act (see s.60CC(2A) of the Act).

3. The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:

   abuse, in relation to a child, means:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

   family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

4. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:

   (a)     an assault; or

   (b)     a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d)     repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f)      intentionally causing death or injury to an animal; or

   (g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

5. The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.

6. The definition of family violence no longer requires a person to reasonably fear for their own safety or well-being. 

7. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3) of the Act). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:

   (a)     overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

8. The father deposes to the child having a close and loving relationship with him.  He deposes to being involved in her care prior to separation.  The father says that the child has seen his parents and his sisters at least once per week throughout her life up and until the parties’ separation and that the child has a close and loving relationship with them.  The father deposes to being closely involved in the care regime for the child.  Ms Clifford states that he concedes that the mother was the child’s primary carer but says that he still had a substantial and significant involvement in the child’s care, subject to his work commitments.  The father says that, relevantly, from separation in September 2014 the child spent time with him and his family, including overnight time.  He says that, in October 2014, the child spent two nights with him on Monday, 13 October and Tuesday, 14 October and then a further two nights on Sunday, 19 October and Monday, 20 October 2014.  The father says that he spent another night on Thursday, 23 October 2014, a further two nights on Wednesday, 29 and 30 October 2014 and on Sunday, the 2nd and Monday 3 November 2014.  The father’s time then appears to have been, unilaterally, suspended by the mother from about 17 November 2014 onwards.  The father did not have any further time with the child for a period of some four months, until the interim orders were made, by consent, on 16 March 2015, as referred to above. 

9. It is a disputed fact as to the amount of time that the father says he spent with the child in the post-separation period.  An aide-memoire as to the father’s affidavit material has been extracted, which shows that the father spend some 20 days with the child in October/November 2014 and some 10 days with the child in the period March, April, May of 2015.  The 10 days with the child in 2015 are not disputed as they are pursuant to the current interim orders.  The mother disputes the days set out in 2014.  The father’s position is that they days have occurred in regular time periods, including at most two overnight time periods and day time periods.  As Ms Clifford said, that agreement prior to the commencement of proceedings is a good indicator as to how the parties had agreed the child’s level of maturity would allow her to continue a relationship with the father while living primarily with the mother.  Weight is attached to that.

10. The father acknowledges a close and loving relationship between the child and the mother and is supportive of orders for the child to continue to live with the mother.  The Court will make that order by consent.

11. The history of the parties’ post-separation circumstances indicate that they were prepared to have the child spend no more than two nights with the father on the basis that that was appropriate for the child and that there would not be an extensive separation from the mother.  Given the age of the child that appears entirely appropriate.

12. The mother’s position in requiring supervised time was on the basis that she believed that the child was exposed to an unacceptable risk in the father’s care by virtue of her concerns that the father has accessed child pornography.  The father denies that he viewed or attempted to view child pornography, at any time.

13. The mother has reported her concerns to the police.  The police have investigated those matters and the Court has received evidence in the form of the documents tendered from the police records which indicate that the documents examined by the police refer to pictures of persons disclaimed as being over the age of 18 years.  This material was accessed by both email accounts where emails sent between two accounts had attached pornography links.  Each of those links were accessed and linked to different websites.  No child pornography was located and all websites had clear disclaimers that none of the content depicted underage females.  A comprehensive search of all the links and websites was conducted and the results were recorded.  The police record that no further action and no offence has been established.  The Court has also had regard to the various documents, with pink slips attached, as tendered by Ms Winfield (Exhibit “2”) in terms of the Police documents produced and, in particular, the police recording that there was no evidence to support the claims made by the mother. The mother was advised of that.  The mother’s claims appear to vary in terms of the police documents recording that the mother’s concerns were that the father watched pornography involving persons aged “6 years old”, subsequently to the father watching pornography depicting females aged between “10 and 15 years” and then the father watching images depicting girls aged between “12 and 18 years”.

14. The father attaches to his affidavit a detailed list of the attendances by him at the child’s care centre in relation to drop-off and collections.  The Court is satisfied that whilst the mother may have had the predominant role in such drop-off and pick-ups or of organising them, the father was, nevertheless, actively involved in that care regime.

15. The father says that the material extracted by the mother is misleading in that it has removed disclaimers (being that the participants were over the age of 18 years) and is selective in its content.  The father says that there are no “porn” subscriptions on his email and that what the mother has accessed is his email account and the records of that account show him sending emails to a site known as [omitted] and that those emails carry a link to various other websites.  He says that no emails with any pornographic content were sent after March 2013 and the mother’s complaint that such pornographic content occurred since March 2013 was inaccurate. 

16. The mother, in paragraphs 34, 35 and 36 of her affidavit, raises matters which could amount to family violence or abuse.  The mother says that on 5 July 2014, when she and the father were returning to a car and she was carrying the child, she tripped in the middle of the street and the father said words to the effect of: “I wish that you would die.”  She says that the father has become more physical towards her since 2012 by shoving her and pushing her onto the bed and onto the floor to “avoid any confrontation”.  She says that on 15 July 2014, when the child was 2 years of age, the father became aggressive and started to drive faster and in a dangerous manner and that she was scared for her life and the life of the child.  During the last year and a half of the marriage, the mother said that the child would say words to the effect of: “Mummy, did Daddy bash you?”  The father denies saying the words: “I wish that you would die” and denies that at any time he shoved the mother or pushed her onto the bed or onto the floor.  He, further, denies driving dangerously with the child in a motor vehicle and denies being violent towards the mother in the presence of the child or of ever being physically violent towards the mother, at any time.  Clearly, these are matters of disputed fact which the Court cannot determine at an interim hearing stage. 

17. However, the Court must weigh asserted matters against the risk to the child and, indeed, consider the mother’s conduct in light of those assertions.  The mother says that she has been aware for some time of the father accessing “pornographic” websites.  Indeed, that appeared to have occurred prior to the parties’ relationship.  Further, notwithstanding the issues of asserted violence as referred to above, the mother agreed that the father had dropped the child off to child care on his way to work and that the father and his family would look after the child on occasions when she went out and that she would leave the child with the father at home, when the child was asleep in bed or ready for bed, and that the father would say to her words to the effect of: “That’s fine.  Go.  I will put her to bed shortly.”  At about the time of separation, the mother says that the father’s mother would pick the child up from her parent’s home once or twice a week and the child would stay with the father and his family at the father’s parents’ home for two days and then she would pick the child up from there.  In October 2014, being after the incidents of asserted violence in July 2014, the mother said she had a conversation with the father in words to the effect of: “I think it is best from now on that the child stay for two days with you at your parents’ on weekends.  I have enrolled her at child care and I am now trying to put her on a new routine.  I am also potty training her day and night.  It is important for her that she has consistency in her life.  I feel that when you are taking her during the week on an inconsistent basis her routine is being interrupted.”  The Court must consider that position against the mother’s asserted fears of violence and to some extent, the Court discounts those concerns insofar as the orders that she seeks would appear to go well beyond that which is necessary for the child’s safety and security, in light of her asserted concerns. 

1. The Court raised with Ms Clifford its concerns as to the ability to supervise and that which would be capable of supervision.  The access to the internet is a powerful tool which people utilise on a daily, if not more frequent, basis.  The Court cannot restrain the legal access of an adult to the internet.  However, the Court is concerned that that legal access may still expose a child to unsavoury and inappropriate images.  The Court, therefore, requested that Ms Clifford draft an appropriate restraint which she could proffer to the Court, which would give the Court a degree of comfort to ensure that the child was, otherwise, safe and secure in the care of the father.  It may well be that there would need to be a combination of restraint and supervision.  In that regard, the Court proposes that there be supervision of the father to ensure overnight time on the weekend is safe and secure from the child’s perspective.  That supervision can be achieved in the circumstances of the father living with his parents and his mother or sister providing that supervision.  Outside that time regime, the Court is of the view that the restraint as proposed by the father noting that the internet can be accessed at any point in time, would appear to be sufficient.

2. A submission was made that the mother intended by the production of the restricted material to embarrass the father or humiliate him in these proceedings.  Ms Winfield rebutted that in terms of the mother’s concern about the material and the fact that on the first return date it was placed in a secure envelope with access to that material restricted.  To some extent, Ms Winfield’s submission was appropriate, namely that the mother is, as she said, “damned if she does and damned if she doesn’t”.  Alert to the father’s access to certain material, the mother has raised that issue and that issue has now been investigated by the New South Wales Police and the Police have decided not to take any action. 

3. Ms Clifford raises concerns as to the mother’s capacity to encourage a relationship with the father and the child, given she said that the mother has raised specific concerns with the Police and then at the same time indicated that she was “more” concerned about the child’s passport and the father removing the child.  Ms Winfield said that the use of the word “more” may have been inappropriately construed by the Police and the mother was, in fact, concerned about both matters.  As said, the passport issue has been now covered in terms of the consent orders. 

4. Further, Ms Clifford raised concerns as to the mother’s selective reporting of events to the Police and, in particular, her assertion that on 20 January 2015 she stated that the father, his family and his lawyer had never communicated with her or her lawyer that they were going to pick the child up from child care and that she had fears that they had plans to remove the child to [country omitted] in circumstances where Ms Clifford’s production of Exhibit “AF”, being the correspondence from the father’s solicitors in the period 8 January 2015 to February 2015, made it clear that the father would immediately join in with the mother in making an application to the Australian Federal Police to have the child’s name placed on the Airport Watch List and that he had no intention, whatsoever, of removing the child from the Sydney metropolitan area. 

5. The Court finds that:

   a)The primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the position that as much time as possible with both parents is in the child’s best interests. There is no allegation made by the father as against the mother in relation to her primary care of the child. The mother’s allegations do not impact on the father’s assertion that the child has a meaningful relationship with him.

   b)The primary consideration referred to in s.60CC(2)(b) of the Act is, to an extent, inapplicable on the facts of this case. The mother repeated the matters set out in paragraph 56 above about asserted violence. Those matters are denied by the father. The mother makes no assertion as against the father in relation to his conduct towards the child, save the issue as to his accessing pornography. Whilst the mother said she had concerns about the father’s access to pornography, she nevertheless willingly encouraged the child’s time with the father. Her concerns about his accessing underage pornography has been investigated by the police and that matter is not now being pursued by them. The father has agreed to an injunction on a without admissions basis to prevent the child being exposed to any pornography, while in his care.

Additional considerations

1. The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.

2. In this matter, the Court will focus on the following s.60CC factors.

(b)    the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);

1. Ms Winfield conceded that the mother allowed the child to spend time with the father on a regular basis after separation.

2. Ms Winfield conceded that the mother had not taken any issue with the father’s mother.

3. Ms Winfield conceded that the child had spent overnights with the father but that the mother took issue with the child spending more than 2 nights away from her.  The father’s proposal accommodates the mother’s concerns in that regard.

4. The mother’s sister has been involved in facilitating the father’s time with the child.

(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

1. There is no issue as to the mother’s capacity to care for the child.

2. The father raises an issue concerning the mother’s capacity in light of her restricting the child’s time with him in relation to the disputed issues of access to child pornography.  The father raises this, particularly in light of the Police investigation, and their decision not to proceed any further with that.

3. The mother has raised no substantial concerns as to the father’s ability to care for the child, save for her issues concerning his access to pornography and the issues in relation to asserted violence involving her.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The father was critical of the mother for raising the allegations that she did, namely that he had viewed child pornography and that the mother had attempted to embarrass or humiliate the father.  However, the Court accepts Ms Winfield’s submissions that the mother is “dammed if she did and dammed if she didn’t” in the sense that if the mother didn’t raise the issue and something then happened to the child then she was open to criticism for failing to act in a protective manner.  When the mother did raise the issues, she was also criticised by the father.  The Court has viewed some of the material and accepts that while the Police may not have been satisfied that any crime had taken place, the images could be viewed as depicting young women who may or may not be over 18 and at in some circumstances have been depicted in ways that are suggestive of being under age. 

2. The Court enquired of Ms Clifford as to whether the father was doing anything against the law in viewing the material that he did.  Ms Clifford submitted that in merely viewing pornographic material which stated that the persons were over the age of 18, the father was not committing any crime.  While the father clearly views this behaviours as acceptable, the issue of pornography is often a vexed one and the Court is not critical of the mother in raising the issues that she does.  At least on the mother’s material, the issue of the father’s use of pornography was an issue throughout the relationship with the mother reporting that during an incident in 2014, the father said “stop bringing up the porn issue, it’s never going to change”.

(j)     any family violence involving the child or a member of the child's family;

1. The Court repeats the mother’s assertions in respect of matters of violence in paragraphs 56 above.

(k)     If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

(i)    the nature of the order;

(ii)   the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)   any other relevant matter;

1. This factor does not apply to this child.

Supervision of time

1. The Court accepts that the issue of ongoing supervision in respect of the mother’s concerns, namely the father accessing inappropriate pornographic material, is somewhat problematic.  Such supervision could occur in a contact centre or under close personal supervision of the father.  However, that type of supervision would become somewhat problematic for extensive daytime hours.  The Court is of the view that if the father’s time was expanded to include overnight time at his parents’ home (where he lives in any event), such supervision could be practically implemented. 

2. The Court has to balance the benefit of supervision as against the detriment to that in terms of building up and maintaining a relationship between the child and the father.  The Court is of the view that the issues raised by the mother can be appropriately dealt with by orders in relation to restraints concerning the father’s conduct as set out below in relation to daytime.  The Court is of the view that on an interim basis, there should be some ongoing supervision for overnight time between the child and the father at his parents’ home, with such overnight time not to commence until the father’s parents have filed an undertaking in the usual form as to such supervision.

Restraints

1. The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one and “not to be exercised lightly” (see Sieling & Sieling (1979) FLC 90-627).

2. At the conclusion of the parties’ submissions, the Court raised with Ms Clifford the issue of the allegations against the father. The Court was concerned that while the father denies that he poses any risk to the child by reason of his consumption of pornographic material, whether he was willing to proffer any order to deal with the mother’s concerns in relation to any time that the father spends with the child, including supervised time. 

3. On 26 May 2015, the following proposed orders were provided on behalf of the father:

   a)The father be restrained, on a without admission basis, from doing any act or thing to access pornography on any phone, IPad, laptop, PC, TV or DVD in his possession at any time while the child is in his care pursuant to these orders; and

   b)That in the event that the father becomes aware that pornography has been received on his phone, iPad, laptop, PC or TV in his possession while the child is in his care pursuant to these orders, then the father shall forthwith do all acts and things to delete any such material.

4. Ms Winfield of counsel indicated that the mother did not oppose the order suggested by the father but sought an order which includes:

   a)The father shall ensure that the child not have access to any computer, iPhone, iPad or other device on which the father has viewed pornographic material; and

   b)The child’s access to electronic devices be limited to child appropriate DVDs.

5. The Court is of the view that electronic devices is too wide a description, given that it potentially could include an electric toothbrush.  The Court restricts those electronic devices to electronic media devices and to appropriate “programs”, rather than simply DVDs.

6. Given the nature of the allegations, the Court is of the view that while the father denies that he has viewed child pornography, he concedes that he has viewed pornographic material and there is, therefore, clear evidence as to why a restraint imposed in the terms proposed by him should be imposed.  The Court will make those orders.  Ms Winfield submitted that the Court should be concerned that if the mother could unintentionally access pornographic material on her own computer, the child may also accidently be exposed to same.  The Court is of the view that the restraint should also be directed towards the protection of the child from any pornographic material and, therefore, the order proposed by the mother should also be made.  The Court is aware that many parents allow their children to play on their iPhones or iPads, however, the father will no longer be able to rely on those devices to entertain the child if he has ever accessed pornography on these devices, unless he has a dedicated device for the child.

7. The Court is of the view that the mother’s proposed orders would not allow for the development of a meaningful relationship between the father and the child and weight is attached to that.  The Court is of the view that the father’s proposed orders are in the best interests of the child, going forward. 

8. The Court is further of the view that it is the father’s proposed orders which will, more than likely, promote a meaningful relationship with the child, in terms of providing for greater time between himself and the child.  

9. The Court will adjourn the matter to a date in October 2015 to enable the father’s time to progress with the child and for the parties and the child to settle into the new routine.

10. The Court is satisfied on the balance that the orders set out above at the commencement of these reasons are in the child’s best interests and, accordingly, will so order.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Associate: 

Date:  5 June 2015