Pornography addiction does not result in supervision

Pornography addiction does not result in supervision

Nunes & Nunes

Evidence

Dr J, Psychiatrist’s Reports

81. The father reported, inter alia, that during the marriage he was viewing adult material more extensively each day than what he was doing presently.
82. The father told the psychiatrist that his manner of viewing adult material was discreet, when viewing the adult material on his phone or laptop. The father described a preference for pictures and movies involving (country omitted) adult females.
83. The father denied to the psychiatrist, inter-alia, any paedophilic content to the adult material accessed.
84. The psychiatrist took a history from the father of his alcoholic drinking. He stated that the father’s account lay between his mother’s assertion that the father rarely drinks alcohol, compared to the mother’s assertion in June 2015 that the father was binge drinking once per week.
85. The psychiatrist took a history from the father in relation to the mother’s allegation against him that he had taken a covert photo of her sister in the shower, and that the sister had discovered a naked photo of herself in the shower was distributed online. The father told the psychiatrist that following the accusation, he provided a statement to the police denying involvement.
86. The father denied any obsessions or compulsions to the psychiatrist. He denied any deviant sexual interest or arousal, specifically denying any paedophilic, sadistic or voyeuristic interest (paragraph 210).
87. The psychiatrist, addressing the specific issues, stated, inter alia, at paragraph 220:

His use of pornography was non-deviant from his self-report and the adult content described was well within the realm of normal sexual interest for adult males. Despite his denial of voyeuristic arousal, his taking photos of the mother’s sister’s underwear with his erect penis, demonstrates some voyeuristic behaviour tendencies.

88. The psychiatrist stated that, from the information made available to him, it was his opinion that the father had psychiatric diagnoses consistent with adjustment disorder with depressed mood (in full remission) and possible voyeuristic disorder (mild).
89. The psychiatrist stated that the father’s pornography interest would not be described clinically or medically as “addiction”, indeed his interest fell within the normal range for similarly aged males. He stated that due to past quasi voyeuristic behaviour described in the report, there was a suggestion of voyeuristic disorder. He stated that voyeuristic disorder involves intense sexual arousal from observing an unsuspecting person who was naked, in the process of disrobing or engaging in sexual activity, as manifested by fantasies, urges or behaviours (paragraph 250).
90. The psychiatrist stated that:
    [The father’s] possible voyeuristic disorder was of mild intensity and may be considered a partial extension beyond normal adult sexual interest. As such, this does not require specific treatment at present. His GP could monitor these issues in bimonthly reviews.
91. The psychiatrist stated, at paragraph 290, that he held:
    … no concerns about the current and foreseeable mental state of the father as it related to parenting. The father demonstrated appropriate and adequate parental capacity to the needs of the subject children, to put their needs above that of his own, including their emotional and intellectual needs. He had a good attitude towards being a parent and being a responsible father for the children. I hold no significant concerns in this regard.
92. The psychiatrist further stated, at paragraph 300, that:
    There were no indications from the forensic psychiatric assessment of the father or from the review of the material provided, that any of the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. The likely effect on the children of spending equal time or substantial and significant time with the father is that the children will have a greater positive and meaningful relationship with the father. This is important for the children’s emotional and relational development. I held no concerns about the father’s current and future capacity to implement such an arrangement and communicate and resolve difficulties that may arise with the mother.
93. In the psychiatrist’s second supplementary report, inter-alia, the psychiatrist referred to a black-and-white print out of several photographs being provided to him by the parties, and noted that the mother had asserted that the father had uploaded these photographs (page 2, second paragraph).
94. The psychiatrist stated that if the father had caused the additional material to be uploaded to the Internet his psychiatric opinion of the father would be slightly modified. He stated, in this context, at paragraph 60:
    Despite his denial of voyeuristic arousal, his taking photos of the mother’s sister’s underwear with his erect penis, demonstrated some voyeuristic behaviour tendencies. If the writer additionally assumed that he caused the provided photographs to be uploaded to the Internet, then this represents a stronger pattern of voyeuristic behaviour.
95. The psychiatrist went on to state that it was now his opinion that the father has psychiatric diagnoses consistent with adjustment disorder with depressed mood (in full remission) and probable voyeuristic disorder (rather than possible voyeuristic disorder as stated in the original report), however it is reasonably clear that this latter diagnosis was made on the assumption that the father “had uploaded the photos provided” (see the second paragraph on page 3 of 5).
96. The psychiatrist stated, inter alia, that recommendations for treatment of the father remain consistent with his original report, stating, “Again, I formed the view that his GP could monitor these issues in bi-monthly reviews.”
97. The psychiatrist stated that he continues to hold no significant concerns about the current and foreseeable mental state of the father as it related to parenting. He further stated, at paragraph 90:
    He demonstrated appropriate and adequate parental capacity for the needs of the subject children, to put their needs above that of his own, including their emotional and intellectual needs. He evidenced a good attitude towards being a parent and a responsible father for the children…. Similar to my original report, there were no indications from the forensic psychiatric assessment of the father or from review of prior and additional material provided, that any of the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father.

Child Dispute Conference Memorandum dated 25 February 2016

98. The parties were interviewed by the Family Consultant on that date.
99. The mother confirmed the allegations against the father relating to her sister Ms K, including the allegations relating to the father uploading photographs of her to the Internet (the father denied this to the Family Consultant).
100. The mother told the Family Consultant that she feared that the father might progress from an addiction to viewing adult pornography to viewing child pornography or sexually abusing the children, and that for this reason, the children should not spend unsupervised time with him.
101. The father denied ever viewing child pornography but admitted to regular viewing of pornography involving adults. He admitted that he had a problem with excessive viewing of pornography and excessive masturbation, stating that he accepted the psychiatrist’s diagnosis of “mild voyeurism” and was committed to attending therapy regularly with a clinical psychologist, Dr T. The father told the Family Consultant that he had already cut back his use of pornography and frequency of masturbation to about three (3) times per week. The father denied that the children would be at any harm in his care and further denied that, during any period he was spending with them, he would need to leave them unattended whilst going to view pornography and/or masturbate.
102. Both parties told the Family Consultant that they presently had no capacity to communicate or cooperate with each other. The father stated that he would like to work cooperatively with the mother in the future, for the sake of the children.
103. The mother told the Family Consultant that she thought the children would want to spend time with the father. She stated that until the father had allegedly placed the images of the maternal aunt on the Internet, she had been facilitating time between the children and the father.
104. The mother told the Family Consultant that she did not feel there were any paternal family members who were suitable to act as supervisors of the father’s time with the children; the mother confirmed that she had told all the paternal family members that the father was sick, as it was her intention to cajole members of the paternal family to influence the father to get psychological help for his problems. The mother stated that she did not receive the support that she thought she might and the paternal family members had defended the father.
105. The Family Consultant further stated:
     Even if the father had placed the images of Ms K on the Internet, and taking into account his admission of extensive viewing of pornography and frequent masturbation to the point where he has been diagnosed with “mild voyeurism”.

It does not necessarily follow that he will go on to develop proclivities for viewing child pornography and/or seek to obtain sexual gratification from children.

Submissions

108. The mother opposes the orders sought by the father for unsupervised time with the children. Inter-alia, the mother is fearful of the children being exposed to the father’s addiction to pornography and voyeurism. In relation to the mother’s allegation of the father having caused to be placed on the Internet nude images of her sister, the mother asserts that she holds grave concerns for the children that they would be exposed to the father’s “sexually deviant behaviour”, and hopes to protect the children from harm, whether physical or psychological.
109. The mother, in her Case Outline, confirms her allegations that the father is a porn addict, is diagnosed with voyeurism and reactive depression, frequents and spends excessively at strip clubs, is an alcoholic and has engaged in conduct of an unconscionable sort, bordering on criminality in which it is alleged that the father has posted nude images of the mother’s sister “Ms K” on an online forum. Such conduct casts serious aspersions over the father’s suitability as a role model, and of the father’s current emotional capacity to care for young children.
110. The mother’s criticisms of the psychiatrist’s reports include, inter alia, the fact that he did not meet or assess the children in the presence of the father.
111. The mother, in her submissions, referred to the father’s admitted behaviour of habitual use of pornography, the taking of photographs of himself with the mother’s sister’s underwear, and the allegation by the mother against the father that he took inappropriate photos of the mother’s sister without consent and then disseminating those photos on the Internet. It was submitted that without appropriate and probative psychiatric evidence, no party was in a position, at this interim hearing, to determine how this “worrying behaviour” of the father would impact upon his ability to parent the children.
112. The mother submitted that the proposed supervision requirement was not dependent upon the Court finding that there existed an unacceptable risk that the children would be exposed to psychological harm; for example, supervision may be appropriate in cases where the children are very young, and the other parent has limited experience in caring for children of that age.
113. The father submitted, inter alia, that the opinions of the psychiatrist should be accepted, including his opinion that he held no significant concerns about the father’s mental state as it related to parenting, and that the children were not at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. He submitted that the psychiatrist had considered and set out the sources of his information leading to his opinions.
114. It was submitted that:
     The doctor was entitled to note that the father has staunchly and consistently denied any wrongdoing. No charge or ADVO has ever issued. JIRT have not been involved. The inexpert opinion of the mother, while she no doubt genuinely holds it, is not reasonably based, and simply irrelevant to the determination of these issues.

Later, the father submits, in this context, that the inexpert opinion of the mother, while she no doubt genuinely holds, is not reasonably based, and is not consistent with the relevant expert opinions provided by Dr J.

115. The father submitted, in relation to the mother’s submission that,
     There is no indication that the father might not engage in similar behaviour again whilst the children are in his unsupervised care”, and that: “The mother’s inexpert opinion is irrelevant, Dr J as the jointly appointed expert has provided an expert opinion on these issues and his conclusions should stand.
116. The father submitted that he has done what has been asked of him and that is to provide expert psychiatric evidence to the Court addressing the risk factors which have been raised. He submits that his sexual pastimes do not fall within the ambit of section 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) and refers to Safir & Safir [2016] FamCAFC 3 and Helbig & Rowe [2016] FamCAFC 117.
117. The father submits that the mother’s evidence does not establish any factual connection between the father’s sexual pastimes and the children.
118. The father submits that the mother consented to extended periods of unsupervised time post separation:
     … in the knowledge of the things that she now complains about, to that extent and as is repeated in the counsel’s submission, the Court will not regard the mother as a voice of reason on these issues.
119. The father submits that:
     The condition of the aunt has not been established in the evidence falls from the wrongdoing of the father. He has denied any wrongdoing. This submission with respect is also misguided for that reason.
120. The father submitted that:
     This Court is able to find that the father has a meaningful relationship with the children … The Court may consider an order for family [therapy] to be of benefit, the father undertakes to consent to his participation in such a mechanism to work with the mother in a post separation parenting alliance.

Subsection (2b) – Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; a primary consideration

139. The mother, being aware, inter alia, of the father’s continuing conduct relating to the watching of pornography from about September 2012 (see her Affidavit filed 25 June 2015), and of the father having photographed her sister’s underwear in about November 2012, she and the children continued to reside with the father up until their separation in about November 2013. Thereafter, and up until November 2014, the mother permitted the father to spend time with the child X, including overnight time, within the context of a week-about shared care arrangement between February and April 2014, on Saturday nights, and when the mother travelled to (country omitted) in November 2014. Such conduct by the mother suggests that she did not hold any relevant concerns for this child’s safety when cared for by the father over this extensive period.
140. It is noted that it was only after the mother ascertained details of her sister’s naked photographs on the Internet that she ceased to allow the children to spend time with the father.
141. The father, in November 2012, had attended his GP in relation to his pornography viewing. The GP referred the father to a counsellor, whom the father saw three (3) times for counselling.
142. On 29 January 2016, the father admitted to the psychiatrist that he took the photograph of the mother’s sister’s underwear in the bedroom occupied by the mother’s sister within the family home when “no one else was around”. He told the psychiatrist of his decreasing viewing of pornography since the marriage.
143. The father admitted to the Child Dispute Conference Family Consultant on 25 February 2016 that he had a problem with excessive viewing of pornography and excessive masturbation and gave a history of his decreasing viewing of pornography; he had cut back his use of pornography and frequency of masturbation to about three (3) times per week. The father accepted the psychiatrist’s diagnosis of “mild voyeurism”. The father stated that he was committed to attending therapy regularly with a clinical psychologist, Dr T.
144. The Court notes that there is no evidence before the Court that the father’s interest in pornography relates to children. There is no evidence that the father has inappropriately physically handled the children. There is no evidence that the father has been observed to be acting in any strange or unusual manner around the children. There is no evidence that the father is likely to wish to involve the children in his activities of viewing pornography or in relation to his acknowledged voyeuristic tendencies (e.g. the event involving the mother’s sister’s underwear). There is no evidence that the children have been exposed to the father’s activities relating to pornography or indeed any form of voyeuristic behaviour.
145. The Court notes the father’s acknowledged viewing of pornography to both the Child Dispute Conference Family Consultant and the psychiatrist and that the father has cut back on his viewing of pornography since the marriage ended. The Court notes the evidence that the father’s sexual activities are carried out by him privately (see paragraph 100 of the psychiatrist’s first report); there is no evidence that he has failed to care for either of the children in a relevant manner by reason of his participation in these activities. The Court notes the father’s statements to the Child Dispute Conference Family Consultant denying that during any period that he was spending time with the children, he would need to leave them unattended whilst going to view pornography and/or masturbate.
146. The psychiatrist did take a history from the father, inter-alia, of his viewing of adult pornography (albeit decreasing since the marriage), the event involving the mother’s sister’s underwear, and the psychiatrist was asked to assume, by reference to his supplementary report, that the father had uploaded the mother’s sisters photographs to the Internet. (Without making any definitive finding of fact at this interim hearing, the Court notes that it is quite arguable that the father admitted to the mother and the paternal grandfather that he did covertly photograph the mother’s sister and upload the photographs to the Internet; see the mother’s Affidavit of 27 July 2016 and the father’s Responses thereto, referred to previously in these reasons).
147. Having taken such history, and assuming such matters, the psychiatrist, being an independent joint expert psychiatrist with expertise in, inter-alia, sexual deviant disorders, being an active member of the Special Interest Group in Child and Adolescent Forensic Psychiatry, and being experienced in providing psychiatric reports and expert opinions to the Children’s Court and Family Court (see the psychiatrist’s curriculum vitae at page 11 of his first report), stated in his final report (being Exhibit C):
     I continue to hold no significant concerns about the current and foreseeable mental state of the father as it related to parenting. He demonstrated appropriate and adequate parental capacity for the needs of the subject children, to put their needs above that of his own, including emotional and intellectual needs. He evidenced a good attitude towards being a parent and responsible father for the children.

Similar to my original report, there were no indications from the forensic psychiatric assessment of the father, or from review of prior and additional material provided, that any of the children were at any significant risk of being exposed to physical, emotional or sexual harm from spending unsupervised time with the father.

148. The Court notes that the psychiatrist had made certain treatment recommendations for the father in relation to his voyeuristic disorder, which he found to be of mild to moderate intensity. He formed the view that his GP could monitor this issue in bi-monthly reviews. He stated that if his voyeuristic behaviour persisted with ongoing concerns, then the father should obtain treatment from a forensic psychiatrist experienced in treating sexual deviant disorders. This Court is in a position to craft appropriate interim orders providing for the father to so attend upon his GP in accordance with the recommendation of the psychiatrist.
149. At this interim stage, taking a cautious approach, attaching some weight to the psychiatrist’s opinions (as indicated above, and as expressed in his reports), whilst noting that the opinions of the psychiatrist are yet to be tested in cross examination, and that to date the father has not yet spent any significant overnight time with the youngest child (nor overnight time with the eldest child for some significant time), the Court is of the view that, subject to the following protective mechanisms being ordered, there is no need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence whilst spending unsupervised time with the father; there will be no unacceptable risk to the children in spending such unsupervised time with the father in these circumstances.
150. The protective mechanisms that the court proposes are that the father complies with the psychiatrist’s treatment recommendations in relation to his voyeuristic disorder, the father is restrained from exposing the children to pornography and restraining him from accessing or viewing pornography during periods of time that the children are in his care (the court also refers to and would adopt the detailed pornography restraints proposed in exhibit 1 tendered on 15 November 2016 by the father’s solicitor), that a 0.05 alcohol consumption restraint be placed upon the father, and that the children spend time with the father during the daytime only and on a graduating basis.
151. The Court has considered all the submissions of the mother.
152. The Court notes that the parties’ joint expert psychiatrist expressly dealt with, as he was asked to do by the parties, whether the children were at any significant risk of being exposed to any physical, emotional or sexual harm from spending unsupervised time with the father. In this context, the psychiatrist considered the father’s viewing of pornography, together with the discrete incidents relating to voyeuristic behaviour of the father. The psychiatrist formed his opinions having made a diagnosis of voyeuristic disorder.
153. The parties did not instruct the psychiatrist to interview the children in the presence of the father; the parties had sought to commission the reports of the psychiatrist so that the psychiatrist could expressly consider, inter alia, whether or not the father’s sexual activities, including viewing adult pornography and voyeuristic behaviour posed any significant risk to the children while spending unsupervised time with the father.
154. This Court is satisfied, based on the material before the Court at this interim hearing that the psychiatrist was provided with a comprehensive factual history relating to the father’s historical viewing of adult pornography including his voyeuristic behaviours, including his past treatment, enabling him to provide his opinions.
155. The Court has considered the mother’s submissions in relation to her sister. The father submits that he has consistently denied any wrongdoing in relation to the sister (although the court notes its comments in these reasons as to the father’s alleged admissions to the paternal grandfather in the presence of the mother). At this interim hearing, as indicated previously in these reasons, the Court makes no finding of fact in relation to this disputed issue. In any event, the Court notes that the psychiatrist had assumed the father’s involvement in this disputed activity involving the mother’s sister and his ultimate opinion that the children were not relevantly at risk in the unsupervised care of the father.