Marsden and Winch

[2011] FamCA 369

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH [2011] FamCA 369

FAMILY LAW - CHILDREN

Family Law Act 1975 (Cth)

APPLICANT: Mr Marsden

RESPONDENT: Ms Winch

FILE NUMBER: CAC 373 of 2008

DATE DELIVERED: 18 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 April 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Godtschalk

SOLICITOR FOR THE RESPONDENT: Women's Legal Centre

Orders

1. The father’s application filed 8 July 2010 be stood over with liberty for him to relist it once he has received and filed reports from Dr S and his current treating clinician which indicate that the treatment recommended in the report by Dr Z of 6 July 2010 has been completed.

2. The mother’s application for summary dismissal be stood over to be further considered once the father has relisted his application.

3. Any current order restricting the mother taking S outside Australia is varied to the following extent:

   3.1.The mother shall be entitled to take S from Australia on 5 October 2011 for a period of up to 10 days on the condition that the mother does not travel with S to a country in respect of which there is a current travel advisory alert published by the Department of Foreign Affairs to the effect that warns Australian citizens not to travel to that country. 

   3.2.The mother shall inform the father on or about 16 October 2011 as to S’s safe return to Australia. 

   3.3.Any order relating to S or the mother being on a watch list be suspended to allow order 3.1 to have effect. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  CAC 373 of 2008

Mr Marsden

Applicant

And

Ms Winch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case involves a new application by the father for an order that S born in March 2002, should spend time with him and also involves a consideration of if and how that might happen.

2. The central difficulty in the case is a finding that the father had previously been involved in paraphilia, and that that difficulty in the father’s personality had not been properly treated.  There is also the collateral issue as to the effect the proceedings have had on the mother’s psychological health.

3. The matter has had a long history involving two appeals to the Full Court.  In the current proceedings, the father has made an application to re-open the case on the basis that he has complied with the recommendations that were contained in certain paragraphs of my reasons for judgment of 26 February 2010, to which I refer later.

4. The mother has sought an immediate dismissal of the father’s application, on the basis that the father had not complied with the recommendations that were contained in those paragraphs of my judgment of 26 February 2010. 

5. The father also, during oral submissions, made an application in the alternative, that a hearing date be set in about six months from November last year in order for him to have further treatment with Dr S. 

6. The father relied upon the following documents:

   6.1.Application filed 8 July 2010

   6.2.Affidavit filed 8 July 2010 (which attaches a report from Dr Z dated 6 July 2010). I might just note that Dr Z refers to S as “[S’s first name misspelled]” throughout her report in error. 

   6.3.Submissions filed 10 November 2010

7. The matter was previously heard by me on 4 February and 5 February 2010, and I gave my judgment in that hearing on 26 February 2010. 

8. At the previous hearing, I accepted evidence from Prof Y as to the difficulties which the father had, and noted Prof Y’s recommendation in relation to treatment.

9. I should just note in passing that the reason why the father was given an opportunity to provide further written submissions was that during oral submissions he indicated that he had not re-read the reasons for judgment of February 2010, and he wanted an opportunity to provide further written submissions which he has now been able to do.  In his written submissions, the father asserts that the court would deny him procedural fairness and natural justice if the full hearing was not allowed.  He submitted that the report of Dr Z was significant new evidence.

10. In his written submissions, the father sought to cavil with findings made in my judgment of 26 February 2010, which he did not appeal, asserting that I had placed too much weight on the evidence of Prof Y at the original hearing.  It is inappropriate that I take into account any critique that the father now wishes to make of Prof Y’s report.  The father cross examined Prof Y and made submissions about his report at the original hearing. 

11. The new evidence that the father offers in this application to re-open the case and to apply for time with his daughter is the report from Dr Z.  The father saw Dr Z for two hours, and she provided a report that made an assessment of the father.  The father asserts that he has now done what was required in paragraphs 88, 89, 125, and 126 of my reasons dated 26 February 2010, by attending upon Dr Z.

12. Paragraphs 88, 89, 124, 125, and 126 of my judgment of 26 February 2010 are as follows:

    88.[Prof Y] explained that the treatment recorded to be [sic] received by the father was more appropriate to treat general distress rather than paraphilia. The two main aims of treating Paraphilia are to:

    88.1Reduce Abhorrent sexual feelings and attractions; and

    88.2Establish socially acceptable sexual feelings and behaviour (rather than eliminating sexuality altogether).

    A further element to the treatment is ‘schema’ focussed therapy, involving elimination of unhelpful thinking patterns to address underlying vulnerability to affect a lasting improvement. [Prof Y] later refers to this necessity, opining that:

    “having read his history and particularly his history of an abusive relationship with his stepfather, I would be reasonably certain that [the father] is carrying some psychological vulnerability from that and that, unless someone helps him pinpoint it and shows him quite practically how to address it, at the very least he will have less of a quality of life than he might, but it would be quite relevant to any risk to his offending in any way in the future…”

    89.The reduction of abhorrent feelings and attractions, and the establishment of acceptable sexual feelings and behaviour together with schema focussed therapy was estimated to require 12 to 20 one hour sessions over 6 to 12 months

    124.What is required then is to move from the forensic assessment to a case formulation for treatment, if that is indicated.  The case formulation would set out a treatment with two probable broad aims

    125.The first is to reduce the father’s abhorrent sexual feelings and attractions using techniques developed by Professor Joseph Lo Piccolo and the second broad aim was to encourage socially normal sexual feelings and behaviours, rather than suppress sexuality altogether.  Schema focussed therapy would also be used to address underlying vulnerability

    126.In relation to any proposed report that might be further done in the way contemplated by [Prof Y], there was and is no certainty as to whether the father was able to fund the necessary report.  There is no guarantee that the report would be available within a short time frame.  It is clear that if the report makes recommendations for further treatment, then [Prof Y] would anticipate that that further treatment would take place within a six to twelve month timeframe

13. The new evidence that the father offers in this application to re-open the case and to apply for time with his daughter, as I have said is contained in the report of Dr Z, which is annexed to the affidavit that the father has filed on 8 July 2010.  Dr Z is a clinical and forensic psychologist.  Dr Z has a doctorate in cultural and interpersonal crime, and has particular experience treating sexual and violent criminal offenders.  She is a member of the Australia and New Zealand Association for the Treatment of Sexual Abusers, and is an accredited supervisor with the New South Wales Children’s Commission Child Sex Offender Counsellor Accreditation Scheme.  She has other qualifications which are not specifically related to the treatment of persons who have been involved in sexual offences.

14. In addition to the two hours that Dr Z has spent with the father, she had access, and had read and analysed the following documents:

    14.1.My judgment dated 26 February 2010;

    14.2.Father’s affidavit, Crime Report, AFP criminal history documentation;

    14.3.Affidavit of Ms M;

    14.4.Treatment report of Dr S;

    14.5.Reports of Prof Y;

    14.6.Report of Dr W;

    14.7.Initiating Application with father’s Affidavit

15. Dr Z undertook the following psychometric testing of the father: 

    A Personality Assessment Inventory (PAI); a Multiphasic Sex Inventory (MSI-II) which gives measures of sexual deviancy and treatment preparedness and outcomes; and the Static 99 risk assessment

16. Particularly arising from the multi-phasic sex inventory psychometric testing, Dr Z’s report concludes:

    16.1.Minimised the degree of planning strategies used in orchestrating the offending, and does not fully recognise the behaviours that led to offending.

    16.2.Endorsed a number of thinking errors and cognitive distortions that were consistent with identified sex offender groups.

    16.3.Rationalised offending in reference to personal problems and stress, and does not take accountability.

17. Dr Z makes a number of recommendations at the end of her report, at paragraphs 101 and 102.  Relevantly to my considerations in relation to the mother’s summary dismissal application, Dr Z does two things.  Firstly, she does in fact recommend treatment (and I will come to that shortly), but secondly she also recommends that simultaneously with treatment, S’s best interests would be served by some monitored reintroduction to her father.

18. With great respect to Dr Z, it is a matter for the court to make a decision about what is in S’s best interests.  I do not accept that she was in a position at all to make a judgment about what might or might not be in S’s best interests.

19. Dr Z, in the body of the report, made the following comments in relation to future treatment of the father:

    19.1.The father did not appear to see the need for specialised treatment or significant change which may be a barrier to treatment, although he would be open and disclosing in treatment should it be undertaken.

    19.2.His rationalisation is typical of offenders who have not engaged in offence-focused treatment.

    19.3.The father’s past treatment was offence-focused only in a small percentage.

20. Dr Z, still had concerns about the risk of sexually inappropriate behaviour despite that treatment because:

    This intervention does not appear to have addressed the issues fully for [the father].

21. Next, Dr Z recommends psychological treatment designed to:

    Develop a relapse prevention plan, identify and address problematic attachments and intimacy concerns, and to seek intervention with an accredited clinician with various sex offender schemes.

22. Then going to another part of the report, Dr Z says that following in her formulation of assessment of the father:

    22.1.He poses a moderate-high risk of re-offence involving exhibitionism targeted at young adult women.  This risk will increase in periods of high stress.

    22.2.He also poses a risk of developing another inappropriate attachment to an adolescent girl, but this would possibly not lead to inappropriate physical contact.

    22.3.In the past, he has coped with stress poorly and this has lead to inappropriate behaviour.

    22.4.The father’s sexual interests are age-inappropriate, a result of his poor self esteem, defensive attachment, and identify as fit and sporty.

    22.5.The father continues to minimise and rationalise his offending behaviour and inappropriate attachments – behaviour not uncommon with offenders, especially those who have not participated in a comprehensive program of offence-focused treatment.

23. Having referred to those comments in Dr Z’s report, I now move to her recommendations about the father’s treatment.  The recommendations that she sets out in paragraph 102 of her report includes the following:

    In the interim, [the father] should access specialist psychological treatment that is designed to firstly cement a detailed and comprehensive relapse prevention plan, and next identify and address the problematic attachments and intimacy concerns that led him to developing a distorted and sexualised relationship with a young teenaged girl.

    It would be appropriate for [the father] to return to [Dr S] for such treatment, or he might access this intervention with an accredited clinician with either the Commission of Children and Young People’s Child Sex Offender Counselling Accreditation Scheme ( or with the Australia and New Zealand Association for the Treatment of Sexual Abuse ( My service may also assist [the father], although we are obviously based in Sydney (www […] com.au).

24. Those two recommendations make it clear that in Dr Z’s assessment, the father required further treatment.  I also note that the second last recommendation made by Dr Z was that the father be able to return to specialist offence-focused treatment at any time he needs for support and managing his risks going forward, especially as S becomes older. 

25. Finally, I also note that Dr Z recommends that, in any event, the father should not be able to have S and her friends stay at his house at any time, but rather if he is to be involved with his daughter’s friends it should only be in a public forum with other supervising adults present.  It is not clear to me whether or not that is a recommendation that the Doctor would make only in the interim, while treatment continues, or whether or not that is a final recommendation.  It appears as if it is a final recommendation, but I would not be absolutely confident about that.

26. My conclusion, having set out what I have said, is that the actual application brought by the father is not currently able to be progressed on the current evidence.  The mother wishes me to dismiss the applications at this point.

27. I find it is not appropriate to summarily dismiss the father’s application at this time.

28. I will give the father a further opportunity to file further evidence from Dr S and his current treating clinician going to the issue as to whether or not the father has completed the treatment recommended in the report of Dr Z of 6 July 2010. 

29. Accordingly, the mother’s application for summary dismissal will be stood over to be further considered once the father has relisted his application.

30. In respect of the mother’s application to be able to take S on an overseas holiday for ten days, I intend to make orders in accordance with the mother’s application for reasons which are plain from the transcript of the discussion that I have had with the parties about this issue. 

I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 18 April 2011.

Associate: 

Date:  18.5.2011