By Gianna Huesch
A father has lost his appeal against a residence order requiring him to continue to live with his parents, with Family Court appeal judges finding the trial judge had made no error in identifying the risk posed by the ‘paraphiliac’ father to the kids involved. The Full Court of the Family Court of Australia at Perth dismissed the father’s application and ordered him to pay costs.
The man had been living with the children for the past three years in his parents’ home while his ex-wife had the children three out of four weekends, and the trial judge had declined to change the children’s residence, but had imposed the condition requiring the father to keep living in a self-contained flat below his parents’ house.
The father had objected to this residence order, wishing to be free to live wherever he wanted. He appealed the ruling on the ground that the trial judge erred in finding that he posed an unacceptable risk to the children. However, the appellate judges disagreed and reaffirmed that the condition imposed on his place of residence was designed to protect the children from unacceptable risk of harm.
In cases where there are allegations of risk of abuse, the court must identify and evaluate the nature and degree of the alleged risk, amongst what are often fundamentally disputed facts. However, in this case, “on his own evidence, the husband began to view images of naked children, mostly of prepubescent males, in 2001. He plead guilty and was convicted in August 2012 to two counts of possession of child pornography. On the uncontested evidence of (one of the treating psychologists), the husband’s admitted actions in accessing child pornography indicate an atypical sexual interest in children, or paraphilia”.
The trial had heard from three experts, two clinical psychologists treating the husband and one psychologist with a background in criminal justice and family law. The latter was appointed as the court’s single expert, and his recommendation was that there was no need for the husband to be supervised.
However, the appeal judges found that the trial judge did properly identify and evaluate the nature and degree of the alleged risk. As well as the husband’s admissions, there were other factors to take into account, such as the fact that some years ago, the husband had been the subject of a complaint by another mother of a young boy, which had led to police executing a search warrant of the husband’s home and the discovery of the child pornographic material. The husband was issued a violence restraining order regarding that child (which he oddly did not oppose) and was given an 18 month intensive supervision order and put on the sex offenders’ register.
As the single expert told the court, the best predictor of future behaviour is past behaviour and given the husband’s previous use of child pornography, the single expert could not say there was no risk, although the father had taken steps to rehabilitate himself, so there was minimal risk of reoffending.
The appeal judges noted, “It is apparent that her Honour considered that even the low risk posited by the experts was unacceptable and required the condition which she imposed.” The trial judge had therefore ruled that any risk to the children was an acceptable one if the father’s care of the children was overseen by his parents as per the residence order. It was argued that the man’s parents were aware of the nature of his conviction and offending and were able to provide additional safety and monitoring of the children.
In the end, the appeal judges found that, “in our view, this appeal amounts to no more than a complaint that the husband did not win well enough.”
Read the full case: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/77.html
Do you need assistance with a family law matter? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400.