Ordinarily, in parenting matters, the family courts here in Australia are not interested in what goes on behind bedroom doors between consenting adults—provided parents are not putting their children at risk of harm through their lifestyle. For instance, parents who have a particular interest in BDSM (bondage, discipline, sadism, masochism) are not automatically regarded as being incapable of being good parents and they do not routinely find themselves losing custody of children on that basis. There has to be direct relationship between parental behaviours and a potential negative effect on children for the family court to decide that maintaining a parental relationship is not in a child’s best interests.
As a recent case in the appeals division of the Federal Circuit and Family Court of Australia (the court) shows, on occasion there will be situations where a parent’s sexual proclivities are front and centre in a dispute over a child’s best interests. In this matter, a father had a sexual fetish which is classified as a paraphilia, and it was determined that the risk to the children was too great to allow the children to continue to spend any time with him at all, even if supervised. Let’s take a closer look at this case and the subject of paraphilia and family law.
First of all, what exactly is a paraphilia? According to the mental health diagnostic tool, the DSM-5, there are eight types of paraphilias, some of which are illegal and some of which are not. A person can have a paraphilic interest without it being a paraphilic disorder—the interest becomes a disorder when the interest is negatively impacting on the individual’s life or threatens others. The paraphilic disorders are: exhibitionistic disorder, fetishistic disorder, frotteuristic disorder, paedophilic disorder, sexual masochism disorder, sexual sadism disorder, transvestic disorder, and voyeuristic disorder.
Paedophilic paraphilia is the one which is most likely to affect a custody decision. Clearly, if a parent is shown to have a paedophilic interest, the courts will rightly find children to be at serious risk if they were to have contact with the paedophilic parent. But what about someone with, say, a “foot fetish” or some similar “kink”? How much risk is there to a child in that situation? Does it outweigh the risk to the child of having a parental relationship completely severed? Can supervision be enough of a solution? Weighing this all up is the task that then faces the court.
When a fetish poses a risk to a child
In the matter given pseudonyms Saunders & Yorke, the father was appealing the decision of the primary judge, but the appeals court found there had been no error by the primary judge and hence upheld the primary judge’s decision.
The father is part of a “community of people with similar proclivities”, being an “adult baby diaper loving community”. This represents a fetishistic paraphilia and is not illegal for adults to engage in. It was undisputed in the matter that the two subject children, age 11 and 7, love their father and enjoy spending time with him.
But it’s one thing for a parent to have a sexual “kink” that they can keep out of sight and awareness from their children. It’s another if the paraphilic interest has taken over the parent’s life to the extent where it’s closely bound to their entire identity. And that’s what was the case in this matter. The father’s fetish was intricately entwined with his identity, including his running a business catering to the particular fetish community. It was found that it would be impossible for the father to conduct his lifestyle without the children at some stage becoming aware of it, and then potentially suffering the distress of public humiliation, as well as private distress and confusion.
It was also found that the only way to prevent the children being impacted by the dad’s lifestyle was for the father to change and abandon his fetish lifestyle. But the court found the father had no genuine interest in making such change. While the father submitted that any risk to the kids could be ameliorated by supervision, the court opined that for several reasons this was unsatisfactory. In particular, long-term supervision is not regarded as a good solution in situations where supervision is deemed necessary for a child’s safety.
Harm caused by severing the parental relationship
The courts recognise that children will typically suffer a sense of loss if contact with a parent abruptly ceases. They will grieve the loss of the relationship “and wonder why it has been terminated which may cause the children to fear that they have been abandoned and in the long term, internalise this loss and have issues with their identify.”
However in this matter, the court found that the identified risk of harm was of greater significance than the potential harm caused by cutting off contact with their dad.
Harm caused by father’s fetish
It was the unchallenged and accepted expert’s opinion “that it is almost inevitable that the children will become exposed to the father’s behaviours, identity and business which the expert considers likely to cause psychological harm to the children in various ways.”
The children would likely experience humiliation and ridicule if their dad’s links to the fetish community were exposed, as well as confusion and embarrassment. They might also be exposed to sexual ideas and concepts that they may not be able to understand.
Could the risk be mitigated?
With paid supervision not a long-term solution, in order to continue to benefit from a meaningful relationship with their dad, the dad would really need to be able to prioritise their needs over his. But it was found he has neither the willingness nor the capacity to stop engaging in the paraphilic behaviours, terminate his online business, and cut ties with the fetish community.
“The expert also added that this would require the father to accept that the children cannot know about this aspect of his behaviour and that any public profile he has presents a risk to the children.”
The father proposed therapy as a “restraint” however this was not believed to be a satisfactory option considering the fact that the father admits the fetish forms part of his identity, having existed his entire adult life. Further, the father continues to insist that his behaviours do not pose a risk to the kids.
Which potential harm is considered worse?
The father complained that the primary judge “treated the risk to the children if they are exposed to the father’s paraphilic behaviour and identity as trumping the risk to the children of severing their relationships with the father”.
But the appeals court noted that “it may be, in an appropriate case, that one risk outweighs all the others, including one that leads to the cessation of time between children and a parent. That is a function of the weighting of the evidence through the prism of the s 60CC considerations. That is not an error.”
And when it comes to the Family Law Act 1975’s two main considerations in determining the best interests of a child—the benefit to the child of having a meaningful relationship with each parent, and the need to prevent the child from physical or psychological harm–the safety of the child is indeed prioritised in our courts.
If you need assistance with a parenting matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
You may also be interested to read our blog on how polyamory is treated in family law.