Does watching porn make you a bad parent?

Posted on 20/02/2017, Last Updated on 20/03/2019

Case in point: Loffler-Wingrove and Wingrove [2015] FCWA 55

The parents in this case applied for parenting orders in circumstances where, since separating in 2011, they had shared care of the children on a day-about basis.

At Trial, the Mother raised concerns about the Father watching porn, and using cannabis.

The matter was heard by Walters J.

The facts

The Father (aged 55) and the Mother (aged 44) married in July 2000 and had two children (referred to in the judgment as Child A and Child B). Child A was born in 2003 and is aged 12, while Child B was born in 2006 and is aged 9.

The parties separated in December 2011 after the Mother formed a same-sex relationship with Ms W (although, Walters J noted that this relationship was but one of many factors resulting in the breakdown of the relationship). Thereafter, the parties put in place a “day-about” shared care arrangement for the children. Walters J was of the view that such arrangement was not in the best interests of the children, nor was it “child-focused”. Accordingly, he elected to deliver ex tempore reasons to bring the proceedings (and what he considered to be a “disruptive” arrangement) to an end as soon as possible.

The parties’ positions at Trial

The Mother’s position at trial was the children should live with her, and spend time with the father. The Father’s position, at least initially, was that the children should live with the parties on a week about basis. However, during the trial, the Father conceded that Child A should live primarily with the mother, but maintained that a week-about arrangement was appropriate for Child B (notwithstanding that this would see the siblings separated from each other on a regular basis). It would appear that the Father’s change in position came about following Child A expressing (via the children’s therapist) a wish to live with her Mother.

The Trial Judge’s decision

After addressing the primary and additional considerations listed in section 60CC of the Family Law Act 1975 (Cth) (the “Act”), His Honour considered whether he should make an order for equal time, or substantial and significant time, as required by section 65DAA of the Act (noting that the parties had already consented to an order for equal shared parental responsibility).

Significant to Walters J’s decision were the following factors:

1. A finding that the mother remained the children’s primary carer since 2011, notwithstanding that the parties had entered into a shared care regime;

2. The impact on the children of the Father’s “physical and emotional unavailability at times – for example, when he locks himself in [his] study to view and “use” pornography… and, perhaps, use illicit drugs (relevantly, cannabis)”;

3. Child A’s wishes to live primarily with the mother;

4. Concerns about the Father’s maturity and ability to provide for the emotional needs of the children, and foster a relationship between the Mother and the children; and

5. The undesirability of making Orders that would separate the siblings.

Ultimately, Walters J was not satisfied that it was in the children’s best interests to spend equal time with each of the parents. At [165] His Honour said that:

Neither party pressed for such arrangement in relation to Child A. The father sought an equal time arrangement for Child B only. I am not satisfied that the arrangement proposed by the father could be made to work effectively and in the children’s best interests. The parties’ communication is less than satisfactory, disputes between them are relatively frequent and their relationship has been strained (due largely to the father’s immaturity and resentment towards the mother) since at least the date of separation.

Walters J did, however, consider that it would be in the children’s best interests to spend substantial and significant time with each of their parents, and said (at [168]) that:

[s]uch arrangement would allow them to have regular contact with both parents during school terms and holidays, as well as allowing parents to be involved in the children’s daily routine and occasions and events that are of significance to them. There is no suggestion that such arrangement would not be practicable.

Having made that finding, His Honour then made Orders for the children to live with the Mother, and spend time with the Father for four nights and one afternoon per fortnight. School holidays were to be shared equally, and the usual Orders were made for time on special occasions (such as birthdays, Easter, Christmas, Mother’s Day and Father’s Day). The Orders also deal with various other matters, which for the sake of brevity are not discussed here.

Commentary

An interesting aspect of this case is Walters J’s treatment of the father’s alleged use of pornography and cannabis.

His Honour (at [59]) remarked that “it is not the role of the Court to assess or comment upon the parties’ sexuality or scrutinise their sexual proclivities”. However:

[59] It is the Court’s role… to give serious consideration to determining what is in the children’s best interest. It is also the Court’s role to endeavour to protect children from psychological harm and to do its best to ensure that children receive adequate and proper parenting to help them achieve their full potential. Ensuring that parents fulfil their duties and meet their responsibilities concerning the care and welfare of their children is also one of the Court’s objects: see s 60B(1). From the point of view of parenting in the broadest sense, it is inimical to the best interests of children for a parent to lock himself or herself in a room when his/her children are present in the house, irrespective of whether he or she is reading the news, playing with model trains or, for that matter, working on affidavits for a Family Court trial.

 [60] …if the father feels unable to refrain from the use of pornography, or to refrain from smoking cannabis when the children are in his care, then, quite clearly, he has a problem that needs to be addressed, whether or not his inability to desist from these activities comprises an “addiction” in the true sense.

In the more recent case of Safir & Safir [2016] FamCAFC 3, Ryan J, sitting in the Family Court’s appeals jurisdiction, examined the potential risk of harm to children being exposed to pornography in circumstances where the father may be watching “behind closed doors”.  In this case orders had been made by the trial judge in the first instance for the father to have unsupervised time with his 10 and 6-year-old children during the day, but no overnight time due to the risk of the children seeing “pornography or their father masturbating”.  The mother alleged that the father was a “sex addict” notwithstanding that she was prepared to allow extensive unsupervised daytime contact between the children and the father.

His Honour found that by locking himself away in his “bedroom or a bathroom” to watch pornography or masturbate whilst the children were in his care, the father was, in fact, adopting a strategy designed to protect the children. 

Unlike Walters J, He made no critical reference to the father’s lack of “presence” in the house or his “physical and emotional unavailability” at such times. 

Indeed, at paragraph [37] His Honour said:

Given the surreptitious manner in which the father engaged in these activities, the obvious inference is he did his best to ensure the children did not see pornography or him masturbating.  His attempts at privacy qua the children have for years been successful and with respect to his Honour (the Trial Judge), in order to justify a conclusion that any risk of this type was unacceptable, something needed to be said about why it was his strategies adopted to date to keep his adult activities secret from the children were unlikely to succeed in the future.

With reference to the father’s alleged “sex addiction” His Honour proffered that the mother’s willingness to facilitate extensive daytime contact between the father and the children could only lead to the conclusion that she, and the trial judge, must have accepted that the father was not the compulsive ‘sex addict’ she claims he was.

If you have any queries or wish to obtain advice in relation to any of the issues raised in this article please contact one of our expert team members.

The above does not constitute specific legal advice but is general information only.