Bail Variation to Allow Child Contact in Child Pornography Case

This is a case study on bail variation in a child pornography case, specifically to allow child contact.

What is alleged to have occured?
Our client was arrested and a search warrant was executed at his home on the same day. Australian Federal Police (AFP) were looking for child pornography material on his electronic devices, and following their search did locate a small number of images and videos. The client was interviewed and admitted that he had downloaded the material. He had never been in trouble before.

As if things weren’t bad enough for the client, they were about to get worse. The AFP contacted the Department of Health and Human Services (DHHS) who then told the AFP that the client should be bailed to a different address than his own home, and that he should not be allowed to have unsupervised contact with his own children. This was based on no specific knowledge about the client and his family – just on the mere fact that some child pornography material, obtained from the internet, had been located.

The client lived with his wife (they had been married for almost 20 years) and his two school-aged children. The AFP bailed the client with strict conditions that required him to live with his elderly parents which is almost a two-hour drive away from his family and place of work. The conditions of the bail prevented unsupervised contact with his own children or any other child under the age of 18. Hence, bail variation in this child pornography case was needed to deal with the situation.

To make matters worse, DHHS had told his wife that she should allow no contact between the client and his children until told otherwise. She was further threatened that DHHS would take steps to remove the children if she did not do as she was told. None of this was based on any specific risk assessment or any specific knowledge of the client, his children, or his circumstances. This was just an automatic response from the DHHS staff involved with no consideration of the effect on the client or his children. It must be noted that the client had strong support from his wife who thought he would never harm his children. DHHS did not take her views into account.

The client contacted us for help with his situation. He showed us the bail conditions and indicated that he was bailed to appear at a filing hearing on a certain date. The client was struggling with the four hours of extra travel per day and was not coping with being forcefully separated from his family.

What happened at court?
We took immediate steps to change the situation and try and vary the bail conditions to allow the client to return to his family. The client would need their support while he engaged in psychological treatment and dealt with his case. We also called the AFP police officer who had carriage of the case and learned that the bail conditions were included simply because the DHHS staff had asked that they be included, and that the AFP now routinely include such conditions (which is excluding someone from their own home and contact with their own children) in all similar cases.

Authorisation was obtained from the client to discuss his case with the DHHS worker and we then spoke with her. She indicated that the condition of no contact with the children was part of a safety plan made with the mother and that this plan had to be adhered to avoid further intervention and court action by DHHS. She said that the charges alone were the reason and that there had been no interviews with the children. She said that DHHS would recommend and try and enforce no contact with the children during the whole period of the criminal proceedings which could be as long as 12 months.

We advised her that we would make an application for bail variation in this child pornography case, specifically to allow contact and a return by the client to the home. We pointed out that there was no lawful power for DHHS to prevent the contact and that they would have to apply to a court if they wanted to stop contact. The DHHS worker threatened court action to remove the children from the parents if the bail conditions were varied to allow contact.

We listed a bail variation for the first possible court date. The variation was opposed by the AFP and the Commonwealth Director of Public Prosecutions. It was contested throughout the course of the day and adjourned from that Friday to the following Monday. The presiding magistrate was advised of the absurdity of excluding the client from his home and contact with his children. She was told that there was absolutely no evidence that the client was any risk to his children. The prosecution could not tell the court when the children were going to be interviewed by DHHS or anyone else. The case was adjourned until the Monday and the magistrate insisted that the children be spoken to by DHHS or the AFP. That was done and each child indicated that there had never been any improper conduct by their father towards them.

What was the result?
On the Monday, the client’s bail conditions were varied. He returned to his home and family and made plans to begin his treatment. His family have supported him throughout his case, which at the time of initial writing is still not concluded. DHHS never took any court action to remove the children and, in December, sent him a letter saying they were ending their involvement.

Had we not fought for the client and pursued the opposed bail variation in this child pornography case, the client would have spent the last 9 months separated from his family. It should be stressed that the court controls an accused person’s bail conditions – not the AFP and not DHHS. It is important in circumstances of ridiculous or punitive bail conditions to fight for an improvement in those bail conditions.

Elements of Possession of Child Abuse Material:

  • The accused was in possession of a material.
  • The material was a child abuse material.
  • The accused knowingly possessed the material.

Related case studies

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 23/08/2019