Unacceptable Risk to Child – Line drawn in protection of children
In the case of Stack v Searle [2015), in the Family Court of Western Australia 44 (12 June 2015), Crisford J decided that the father, Mr Stack, should have no contact with his two children due to the risk he posed to them.
In October 2009 the father was sentenced to three years imprisonment upon being found guilty of one count of indecent dealing with a child who is a lineal relative, being his eldest daughter, four counts of possession of child pornography and one count of supplying child pornography. The father had been a member of a termed “Forbidden Realm,” which in an international child pornography website, and had uploaded pictures of his youngest daughter onto the website. The father was released from prison in July 2012.
At the time that the judgement was given in this case, there was a matter before the District Court of Western Australia, in relation to charges made against the father in June 2014 for one count of sexual penetration of a child under 13 years and a further count of indecent dealing with a child under 13 years, these events are alleged to have occurred in January 2006 and the child was not a relative of the father. The father pleaded not guilty to the charges.
The father filed an application for final orders to spend time with his children on 12 March 2009. He sought to spend supervised time with the children each fortnight, to be reviewed in 6 monthly intervals and that he and the mother have equal shared parental responsibility.
The mother sought to have sole parental responsibility of the children and injunctions restraining the father from having any contact with the children. The Independent Children’s Lawyer that had been appointed in the matter, supported the mother’s position.
The Family Law Act 1975 strongly supports the position that it is in the best interests of the child that both parents have a significant and substantial role in a child’s life. It may, however, be considered to not be in the best interests of the child if a parent has engaged in abuse of the child or family violence.
It was acknowledged that at the time of the hearing the father’s relationship with the children was non-existent. The father, however, asserted that historically he had a very good relationship with the children. The mother alleged that the father deliberatively cultivated a close relationship with the children, in particular their eldest daughter, as a means of grooming the children.
The father presented to the Court that he had undertaken a variety of courses and programs while incarcerated that would ensure that he will not reoffend in the future. In 2009, in relation to the criminal proceedings, it was asserted that the father was a reasonable risk of re-offending, a Forensic Psychologist prepared an Updated Specialist Pre-Sentence Report indicated that the father did not acknowledge the gravity of his behaviour and stated, upon review of the father (at [57]):
“indicate a level of minimisation, justification and distortion not present during previous assessments and are cause for concern given that he has only recently completed an intensive intervention program through SafeCare (which is a sex offender treatment program).”
In relation to the proceedings regarding time with the children, the father’s treating Registered Psychologist gave evidence in support of the father spending supervised time with the children and made the following comments (at [66]) :
“…individuals who have a sexual attraction to children cannot change that attraction but rather they can take steps to contain it, such as creating boundaries by not having unsupervised access to children.”
“…where adults have been sexually attracted to children, it is unrealistic to expect that treatment can eliminate that attraction. The best treatment can do is to provide the motivation not to act on the attraction and provide the tools to achieve that self-restraint until a sexual attraction to adults can be consolidated.”
The treating psychologist went on to say that she did not know if the father still retained a sexual attraction to children but there was not evidence that that had changed and in 2011 the father admitted to her that he still had an ongoing sexual attraction to children.
A Senior Clinical Social Worker, who was the therapist of the eldest daughter, formed a very different view to that of the treating Psychologist. Although she had not met with the father, her view was that the father’s “position of denial and minimization” was a cause for concern, particularly in circumstances where he denied the allegations of sexual abuse of his eldest daughter and then claimed that he was making good progress through the participation in therapy and programs. The Social Worker went on to say(at [68]):
“The fact is until [the father] can; acknowledge and take responsibility for his sexual abuse of his daughters, fully understand the impact of the abuse on them without minimization or excuses such as depression and anxiety, as well as understands his offending cycle there is no evidence of progress.”
The Single Expert Witness that had been appointed by the Court in the case agreed with the view of the Social Worker and not the treating Psychologist and supported the view that the children should have no contact with the father until he can demonstrate that he does not pose a risk to re-traumatising them. The Expert said that the only way the father could demonstrate this is by(at [70]):
“acknowledging the abuse he perpetrated, facing consequences of this, apologising to the children for the harm caused them, affirming this was not their fault but his, working to promoted their well-being and atone for the harm done, and holding himself accountable to measures intended to ensure their safety while spending time with him.”
The eldest daughter had expressed to the Social Worker that she “did not wish to have any contact with the father”. The youngest child also expressed this view. The father alleged that the children had formed this view due to coaching by the mother.
The Expert went on to say (at [93]):
“I predict that if either one or both of the children were to commence spending time with [the father], irrespective of whether or not this was supervised, it would cause enormous stress to the mother, who has herself been traumatised by the events on this family and struggled to maintain her mental health on which her parenting capacity, and her children’s healing, depend.”
Ultimately it was decided that [at(148)] “there is an unacceptable risk of harm to the children here. That conclusion arises from an accumulation of factors. However, some factors taken alone, such as actual proven abuse and its ongoing impact, are enough to say that the risk of harm outweighs the benefit of the children seeing the father” and on that basis it was decided that children not spend any time, supervised or otherwise, with the father and the mother was appointed sole parental responsibility.
William Yeo,
Solicitor
Koffels Solicitors & Barristers