FATHER CONVICTED OF POSSESSION OF CHILD EXPLOITATION MATERIALS SEEKS SHARED RESPONSIBILITY OVER HIS CHILD
Alberson & Elzares [2020] FCCA 2286 (26 August 2020)
This case involves a father who is convicted of possession of “Child Exploitation Materials” (CEM) where he seeks shared responsibility over his child
Facts:
The father (Mr Akberson) was convicted of possession of “Child Exploitation Materials” (CEM) which was the reason why the mother (Ms. Alzares) stopped having contact with the father. The mother, in not so many words, reasoned that once there had been a conviction entered by the Court (and therefore the presumption of innocence was no longer applicable), X was not safe with the father.
The father contends that, as he is no danger to X, he should have equal shared parental responsibility. He contends that there is no reason why he should not have overnight time with X, or, at the very least, unsupervised time.
Issue:
Is the father entitled to share responsibility with the mother regarding their child X despite being convicted of possession of CEMs?
Law:
- Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
Analysis:
On the evidence before the court, it concluded that the father was in possession of the five discs that contained CEM. The explanations of the father were not credible, he knew of the content of one of the discs and an examination of the handwriting on the discs is extremely similar to the handwriting on the discs that were definitely those of the father.
The court cannot conclude that the best interests of X are served by the father having any say over the major decisions that have to be made in relation to the education, health, religion or living arrangements of X.
Conclusion:
The best interests of X are served by her mother having sole parental responsibility.
Whilst it may be that the lack of time that the father spends with X will be seen by the father as “tragic”, the best interests of X dictate that the court orders that she spend no time with the father.
