In Safir [2016] FamCAFC 3 (28 January 2016), Ryan J heard an appeal and found an error in a family law parenting order that gave the father unsupervised time with a 10 and 6 year old during the day, but provided no overnight time due the risk that the children may see pornography or their father masturbate.

At first instance, the Court was satisfied that the risk for the children was minimal during the day and unsatisfactory during the night, hence the father’s application for the children to spend time with him overnight was refused. There was no evidence, however, that the children ever had come into contact with pornography or were exposed to their father masturbating, albeit the material that was viewed by their father contained sex scenes.

Ryan J found that due to the secretive manner in which the father engaged in his personal activities, the court was of the conclusion that he made his best efforts to ensure the children did not view any obscenities within his house. For years the father’s attempts at privacy had been successful. According to the Court, evidence needs to be shown why his current strategies that are adopted to keep his adult activities secret from his children are unlikely to succeed in the future.

Furthermore, on appeal Ryan J stated that his Honour did not explain whether the potential effects with the inadvertent exposure of the children to pornography or the father’s type of behaviour was sufficiently grave to warrant a small risk of exposure as being unacceptable. No such evidence was offered to support this proposition or to support that exposure at a young age is a precursor to something more sinister in the future. As such, the appellate court stated that his Honour’s risk analysis was flawed.

The risk analysis was further compromised because his Honour did not take into consideration the father’s undertaking to ensure that there will be no risk of exposure to the children to pornography. If his Honour considered the impact of the undertakings, the ‘risk’ of the father would have been further reduced.

Even with the mother’s constant reference to the father as having a ‘sex addiction’ primarily due to pornography and masturbation, the fact that his Honour permitted extensive unsupervised visits for the father during the day time would suggest that his Honour and the mother has accepted the father was not a compulsive ‘sex addict’. This can be further evidenced by the fact that the father was still able to provide an appropriate environment for the children during the day.

The risk to the children was the risk of inadvertent exposure and not actual involvement. In other words, if one of the children saw something by accident and the father was present, it would cease. The father ensured that the children were unaware that he masturbates and even if they walk in the father’s room unannounced, the father would cease to masturbate. As to the pornography on television, the only circumstance that a cessation could not be inferred is if the child is able to gain access, without being discovered, to the types of shows that the father watches late at night. As such, the risk was considered no greater than that which exists in any home where there is a television. In relation to pornography, there was no evidence that suggested that the father had stored any pornography on his electronic devices.

Even if it was considered that the risk of exposure amounted to an unacceptable risk of harm, an explanation must be given as to why it is. It was found that at first instance, the Court did not give any explanation in relation to this and hence, the consideration that the children would be exposed to an unacceptable risk of harm if they stayed with the father overnight was flawed and was not available on the evidence presented.

The appellate Court allowed the appeal and made order to include the father’s unsupervised overnight time with the children.