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FATHER WHO TALKS ABOUT HAVING SEXUAL FANTASIES WITH HIS CHILD ONLINE NOW SEEKS FOR IN-PERSON TIME WITH HIS DAUGHTER

Kaisler & Talgo [2020] FCCA 3596 (22 December 2020)

This is an interim parenting application by the father to spend time with his 5-year-old child. The father, in this case, was reported to SAPOL and DCP in 2017 for discussing sexual fantasies about children and his daughter in an online chat room.

Facts:

This is the father’s interim application with respect to the child, X, who is currently five and a half years of age. He filed proceedings in this Court and sought orders for the immediate delivery up of the child on the basis that she was being withheld by her mother. He says the mother has withheld the child since 28 September 2020 when he informed her that he was seeking legal assistance to formalize parenting arrangements.

The mother opposes those orders for two reasons. Firstly, a Department of Child Protection (‘DCP’) incident in which the father was involved in 2017.  Secondly, observed changes in the child’s behavior which give rise to a concern that she has been sexually interfered with at the hands of the father.

When the DCP conducted their investigation in relation to child sex-related comments on the chat room, they recorded that the comments made by Mr Kaisler included disclosures that Mr Kaisler fantasized about having sexual contact with children and that he showered with the child and got her to wash his penis.

The South Australia Police (‘SAPOL’) provided information relating to the 2017 incident. When they conducted an interview with the father under caution he admitted to chatting online and having conversations that involved fantasizing about sex with children. He also talked about, in the on-line chat room, that he had X wash his penis.  Mr Kaisler was adamant at that time that the conversation was on one occasion only and was purely fantasy. He denied any offending involving the child or any other children, and denied having a sexual attachment to children, but was attracted to the taboo or the “kink topic” of father/daughter sex. He stated that he had viewed material of that nature on line, but that material only involved adults in role play scenarios, and it was viewed from his desktop computer.

Issue: Should the court grant the application sought by the father?

Law:

Analysis:

There are the behaviors that the mother has noted and which the DCP has observed are consistent with a child having experienced sexual abuse. In addition to that, the father has admitted to SAPOL and the DCP in the past that he has fantasized online about sexual contact with children, including his daughter X. In one sense, this was more than just a fantasy. It occupied his mind sufficiently to share it with others online.  Also, there is the risk presented by the lack of insight into the gravity of the 2017 incident and the potential implications of it.

There is a risk that the father has in some way sexually interfered with the child. It is difficult to quantify that risk at this stage.  But not being able to put out of the court’s mind is the potential implications of the 2017 incident, it is a risk to which the court must give considerable weight. Next, there is a risk that the father will act on previously expressed fantasies if the court were to permit unsupervised time with the child at this time. 

In terms of balancing those risks, the court is required by the Family Law Act 1975 (‘the Act’) to give greater weight to the need to protect the child from harm. And that is by virtue of the second of the considerations in S.60CC.  That consideration when it arises outweighs the right of every child to have a meaningful relationship with each of their parents. When considering the invidious task of predicting the likelihood of the occurrence of harmful events and the severity of the potential impact which might be caused by those events, the court is unable to conclude that there is not an unacceptable risk of harm at this stage of proceedings on the information before me.

Conclusion: The application for the father to have in-person time with the child, X born in 2015, is dismissed.

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