Ashmore & Marsh

[2021] FCCA 1273

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ashmore & Marsh [2021] FCCA 1273

File number:	MLC 6491 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	7 June 2021
Catchwords:	FAMILY LAW – Parenting – part heard trial – fathers spend time arrangements with the children – allegations of family violence – where father is currently spending supervised time at a contact service – where children’s contact service will not be able to provide ongoing service – where ICL is requested to make inquiries – part heard trial adjourned pending inquiries.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	39
Date of hearing:	7 June 2021
Place:	Melbourne
Counsel for the Applicant:	Ms K Paull
Solicitor for the Applicant:	Cathleen Corridon & Associates
The Respondent:	Appeared in Person
Counsel for the Independent Children's Lawyer:	Ms P Treyvaud
Solicitor for the Independent Children's Lawyer:	Danielle Webb Lawyer

ORDERS

MLC 6491 of 2018

BETWEEN:

MS ASHMORE

Applicant

AND:

MR MARSH

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	7 JUNE 2021

THE COURT ORDERS THAT:

1.This part heard final hearing be adjourned to the Federal Circuit Court of Australia at Melbourne on a date to be advised.

2.The Independent Children's Lawyer is directed to provide a copy of the settled ex tempore judgment and this order to B Children's Contact Service at Suburb C and request that service to explore the extent to which the policy rule that supervision services can only be provided to a family for 2 years is able to have some adjustment or accommodation in the circumstances of this matter so as to allow the children to continue to spend time with their Father.

AND THE COURT NOTES THAT:

A.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Ashmore & Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. These are the settled ex tempore reasons for judgment.  This is a parenting only dispute between the parents, Ms Ashmore (‘the Mother’) and the respondent father is Mr Marsh (‘the Father’).  The third party to the proceedings is the Independent Children’s Lawyer.

2. In this matter, I am going to adjourn the further hearing of the matter to a date not further than October 2021, because I seek further evidence, or assistance, from the service known as B Children's Contact Service at Suburb C in Victoria (‘B Children’s Contact Service’).

3. B Children's Contact Service is a wonderful government funded service that enables children to maintain a relationship with a parent when they would not otherwise be able to do so, either because it would not be safe for the children to do so or because the conflict between the parents is such that it's unable to be determined whether it would be safe to do so.

   BACKGROUND

4. This case concerns X, who is 10 and a half years old and Y, who is nine years old (‘the children’).  The parents separated in 2013.  The Mother alleges very significant and substantial family violence during that relationship.  The Father denies those allegations.  In 2014, child protection became involved and upon a child protection application, the children were placed with the maternal grandmother.  The children commenced unsupervised time with their Mother in 2015.

5. In 2014, the Mother's eldest child of whom the Father is not the father was interviewed in regard to allegations of sexual assault perpetrated by the Father.  In 2015, police executed a search warrant on the Father's premises, and it appears that evidence was obtained that indicated the Father was in possession of child pornography.  In 2016 he was convicted of accessing child pornography and using a carriage service and knowingly possessing child pornography and sentenced to three months imprisonment with a 24 month community corrections order and he was placed on the sexual offenders list for 15 years.

6. In 2017, the children were returned to their Mother's care.  The children have been well cared for by their Mother since then and she has been able to obtain employment of which she and the children are proud and justly so.   The Father had significant difficulty complying with his community corrections order and cooperating with the treatment regimes required of him. 

7. Independent of the Father's travails in the criminal courts, there were proceedings concerning the children's welfare in this court.  It is unnecessary to recite the orders and times that this court has attempted to assist this family with the welfare of the children, but it was ordered in February 2019, by consent between the Mother, the Father and the Independent Children's Lawyer that the children live with the Mother and spend time and communicate with the Father, once per week at B Children’s Contact Service on such dates and times as can be accommodated by B Children’s Contact Service. 

8. In or about November 2019, the Father commenced seeing the children at B Children’s Contact Service.  The initial arrangements were that the Father was to see the children weekly at that centre for an initial eight visits.  He was able to do so, he tells me, and I accept, on seven occasions, then the COVID-19 pandemic struck.  The COVID-19 regime made it difficult for the Father to continue to see the children at the contact centre.  When COVID-19 was under control in Victoria, the Father was able to recommence visiting the time of the children at the centre.  He was able to see the children on weekly visits on two occasions and, thereafter, on a four times per year or quarterly basis.

9. The information that the Independent Children's Lawyer puts before the court, which is not challenged by the Mother or the Father, is that, as things stand, at this point in time B Children’s Contact Service will only be able to provide supervision services for this family until October 2021.  In other words, there will be another visit in June 2021 and another visit in October 2021, and then that service will no longer be available to this family.

10. This matter commenced as a final hearing on 26 and 27 April 2021 when the court and the parties were able to have an in-person court case. Other directions hearings had been held by Microsoft Teams or by telephone. The Mother gave evidence and the Father did not wish to cross-examine her, which is a matter that I find is to his credit. He would not have been able to, in any event, given the provisions of section 102NA of the Family Law Act 1975 (Cth). The Father was cross-examined in the proceedings by the Mother's counsel and by the Independent Children's Lawyer's counsel.

11. During the hearing, the dynamics of the available contact supervision facility changed.  I note that the Father's case was that he should have unsupervised time with the children, but he put this as an ambition rather than a realistic proposal.

12. The Father conducted his case on the basis that he had been unfairly and unjustly accused of matters over a long period of time and appeared resigned to the inevitability of the best that could happen would be continuation of supervised time.  The Father's statements and demeanour to the court demonstrated that he did not expect his case to be successful in the circumstances of where he regarded the police, child protection and, really, most of the world, lined up against him. 

    THE PSYCHOLOGIST REPORT

13. The Father had been assessed by Dr D, a psychologist, who has expertise in psychosexual assessments.  The psychologist observed at paragraph 26, 27, 28:

    26.Mr Marsh’s account of the possession of child pornography charges relate to him using a share file program and he denied targeting child pornography but believed that a series of materials came into his possession as part of using a sharing program which downloaded a variety of different sorts of files.  As such, there is denial of the charges despite a guilty plea.  He stated that in his eyes, that he is in trouble for being blind as he denied being able to read file names.

    27.Charge of indecent behaviour with a child under the age of 16 years with allegation that he urinated on the child in 2014; possession of child pornography in 2014; using carriage service for possession of child pornography in 2014.

    28.On the RSVP, there are a series of factors that raise concerns including Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability.  It is likely based on this constellation of difficulties that Mr Marsh’s vulnerability to sexual re-offending is in the Moderate range.

14. At paragraph 33, Dr D observed:

    33.Clearly, in relation to Mr Marsh's ongoing contact and therefore the development of a relationship between himself and the children to a greater degree, there would need to be a graduated arrangement where he moves from some form of supervision and then time with an adult in substantial attendance.

15. Dr D also observed at paragraph 32:

    32.Overall, Mr Marsh is a man with significant personality difficulties with past identified difficulties connected to impulsivity.  Parental and sexual offending risk was identified as at least Moderate.

16. Despite all these difficulties, the children have managed to maintain a better than merely good relationship with the Father.  That demonstrates an ability to parent the children on the Father’s part, to a degree, and also to a significant degree by the Mother.  In the circumstances of what she alleges she has suffered, it is very much to her credit that she has been able to support the relationship between the children and the Father as she has. 

    THE FAMILY REPORT OBSERVATIONS

17. The family report was prepared in this matter on 12 March 2020.  The report writer made some significant observations.  The Mother observed at paragraph [37]:

    “I am very protective and want to keep them (the children) safe”

18. In terms of the difficult matter of why the children's time was supervised, the Mother said at paragraph [38]:

    “I have told them it is to keep them safe, because sometimes grownups break the law.”

19. At paragraph [41] of the family report it states:

    [41]Ms Ashmore reiterated, she seeks for supervised time to continue and within that to promote the children having a healthy relationship with their father…

20. The report, at paragraph [47], also observed the Father’s social isolation. 

    [47]Mr Marsh's family of origin and early life appear to have been traumatic with DHHS interventions, throughout his childhood.  He has had no relationship with his father since aged 13 years.  He no longer has any contact with the children's paternal grandmother and has not seen his siblings “for years”.  He lived with a brother until January 2019 (2020).

21. At [48], the Father implored he wants to spend as much time with Y and X as possible.  He said:

    “I want them to know how much I love and care about them.”

22. At [49] the Father went on to say:

    “I am stuck between a rock and a hard place.  There is Dr D’s report, I have been in jail and there is Ms Ashmore’s word.”

23. The Father, was, at that paragraph, underestimating the difficulties that he faced, in addition to that, he had the criminal convictions to which I have referred.  The family report writer observed at [60] that Y said:

    “I wish to see my Dad on Saturday and Sunday.”

24. At [62], the report writer observed X said she likes spending time with her Father. 

25. At [63], the report writer observed that the children hugged and kissed him before going back to the playroom with their mother, although they were aware they would see him again very soon. 

26. At [67], the report writer described:

    “In the play room both girls excitedly hid from their Father to surprise him.  As they leapt out from under things, hugging and kissing him.”

27. Later in the same paragraph, observing their interactions:

    “He gently helped out, but was not intrusive.  He encouraged the children toward fairness and sharing and amicably reflected on his own experiences of playing electronic games as a child.”

28. At [68], the report writer observed both girls verbalised their sadness that they had to leave and wished he could stay longer.  The Father said he would see them on the weekend. 

29. At [69], observing the children, the report writer observed:

    “Both girls ran to their Father, hugging and kissing him, before leaving with their Mother and her partner.” 

30. The report writer concludes at 73:

    [73]X and Y present with a strongly connected relationship with their father.  Both throughout the day and in observation, the girls were seen to have warm, reciprocal, and genuine relationships with their father.  There was enthusiasm in the interactions between the children and their father and expressed desire to spend more time with him.

    B CHILDREN’S CONTACT SERVICE OBSERVATION

31. As is usual with B Children’s Contact Service, the court has the benefit of a high quality, detailed and carefully prepared observation of the Father's time with the children up to the last in-person observed visit on 12 December 2020.  Significant observations include the following:

    (a)On 14 December 2019, the Father knelt when the girls entered the room and they ran to him and hugged him.

    (b)On 12 December 2020, the observation included that the children hugged the Father who reciprocated by hugging and kissing them both.  At the end of the visit, Y jumped up and wrapped her arms and legs around the Father.  The Father wrapped his arms around Y and said, “I will see you as soon as I can.”  The Father picked both children up and they all hugged.  The children took it in turns to run to the Father to get picked up and hugged.  The Father said, “I am going to miss you both.”  Y said, “Love you.  Love you.  Love you.”

32. Hence there is very considerable evidence independent of the Father’s opinions or the Mother's opinions of what the family report writer describes as a “warm, reciprocal and genuine relationship with their Father”. 

33. In the circumstances of the allegations of family violence between the parents, the criminal convictions of the Father, the Father's social isolation, and the Father's very difficult personality when dealing with anyone except his children including supervisors at the contact centre, the state of that relationship is remarkable. 

    THE B CHILDREN’S CONTACT SERVICE CHANGE OF POLICY

34. The situation that the court is now in, is that the Independent Children's Lawyer has been advised informally but not in writing, but I accept accurately, that there is a change of policy at B Children’s Contact Service.  Previously B Children’s Contact Service had indicated or at least the parents understood that B Children’s Contact Service would supervise the time until the youngest child turns 12.  Immediately preceding or even during the court case in April this year, there was a change of policy.  This was said to be a decision of the board of B Children’s Contact Service. 

35. I do not know who the board are but I expect they do a very good job with limited resources and an exponential demand for their services.  However, the current position is that with another visit to occur this June and another to occur in October, that that will be the end of the facility. 

36. In the circumstances of this case, the Mother and the Independent Children's Lawyer raise as a possibility the Father employing a private supervisor.  The practical reality of that, also high quality supervision, is that it will cost about $300 per visit.  Given the Father's dependence upon social security, his difficulties with sight, his social isolation, and his limited social abilities, I cannot see any prospect of the Father being employed or having any other income save for social security for the indefinite future.

37. I cannot see the Father being able to organise assistance via community groups or service clubs that may assist with the funding on the girls' behalf.  Hence, for practical purposes, the parents agreed as does the Independent Children’s Lawyer that it comes down to if time is to be supervised, then it is B Children’s Contact Service or nil time.  I have not yet heard the Father's final submission to me; however, at this point in time, without deciding the case finally, there is much force and substance in the case of the Independent Children's Lawyer and of the Mother that the Father's time, at this point in the children's lives and for the foreseeable future, can only be supervised by an independent supervisory service.

38. Hence what the court is presented with, on the information available, is that following October, for reasons of which the girls are entirely innocent of, there will be no supervisory service available and, hence, their time with their Father will simply end. 

39. It is in those circumstances that I am directing the Independent Children's Lawyer to provide a copy of this judgment to B Children’s Contact Service and to explore the extent to which that policy rule (though no doubt a good one with balancing many factors of which the court cannot be aware) is able to have some adjustment or accommodation in the circumstances of these girl's lives. 

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       8 June 2021