Marsden and Winch - [2010] FamCA 130

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH

[2010] FamCA 130

FAMILY LAW - CHILDREN - father seeks new hearing for orders for face to face time in circumstances where that had been refused at a previous full hearing - threshold question in a Rice & Asplund hearing - significant changes asserted by the father - significant change asserted by the mother that points against proceeding to a full new hearing - consideration of s 60CC FLA matters - conclusion that the father had not received appropriate treatment for paraphilia

Family Law Act 1975 (Cth) ss 60CA and 60CC

Rice and Asplund [1979] FLC 90-725
Re Andrew (1996) FLC 92-692
Sedgley (1995) FLC 92-623
A and A (1998) FLC 92-800

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAC

373

2008

DATE DELIVERED:

26 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney and Canberra

JUDGMENT OF:

Watts J

HEARING DATE:

14 September 2009; 1 October 2009; 2 November 2009; 16 December 2009; 18 December 2009; 4 - 5 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Ms Godtschalk

SOLICITOR FOR THE RESPONDENT:

Women's Legal Centre

Orders

The father’s application filed 1 September 2009 for final and interim orders be dismissed.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to S and until further order, that Judge be Justice Watts, if he is reasonably available.

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

REASONS FOR JUDGMENT

INTRODUCTION

On 4 August 2006 in the original proceedings (“the original proceedings”), Faulks DCJ heard, amongst other things, parenting proceedings between the father and the mother and made orders relating to the child S (“the child”) born in March 2002 (she is nearly 8 years of age), which provided that she live with her mother and have no direct contact with her father.
The father appealed those orders and on 21 November 2007 the Full Court dismissed that appeal.
The father’s application to the High Court for special leave to appeal was refused.
On 28 July 2008 the father filed a new application in the Family Court seeking orders which provided for face to face contact with the child, first under supervision and, after a suitable period, on an unsupervised basis on alternate weekends and half the school holidays and on special days. Faulks DCJ, amongst other things, on 8 August 2008 dismissed the father’s application for parenting orders, having heard the preliminary issue raised by Rice and Asplund [1979] FLC 90 - 725. The father appealed that decision and on 26 August 2009 the Full Court allowed the appeal. The Full Court ordered:-
“3.That the father’s application about child matters filed on 28 July 2008 be remitted to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsden and Winch

Details

AGLC: Marsden and Winch [2010] FamCA 130
Case: [2010] FamCA 130
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of *Marsden and Winch* involved an application by the father for final and interim orders. The court was required to determine the father's application in light of expert reports concerning his history of sexual misconduct, his alleged recovery, and the risk of re-offending, particularly in relation to the child.

The central legal issues before the court were whether the father had received appropriate evidence-based treatment for his paraphilia, the reliability and relevance of the expert opinions presented, and the assessment of the risk of future sexual offending. Specifically, the court needed to consider the distinction between clinical and forensic psychological assessments and whether the father had undergone the latter, which is considered essential for reliably assessing psycholegal questions. The court also had to evaluate the father's candour and the extent to which he had minimised his past behaviour.

Justice Watts, in his decision, found that the available clinical records and reports did not provide sufficient evidence that the father had received current, evidence-based treatment for his paraphilia. He noted that the treatment described by the father's treating professionals lacked the structured procedures typically involved in the best practice treatment of paraphilias. Furthermore, Justice Watts highlighted that the father had not undergone a forensic psychological assessment, which is crucial for reliably answering questions about the risk of re-offending. He expressed concern regarding the father's defensive minimising of his past behaviour and concluded that without a proper forensic assessment, confident predictions about future behaviour could not be made.

Consequently, the father's application for final and interim orders was dismissed. The court also ordered that a Judge be appointed to manage any further applications relating to the child, with Justice Watts to serve in this capacity if reasonably available, unless an appeal against these orders was lodged.

Orders

Orders of the court

The father’s application filed 1 September 2009 for final and interim orders be dismissed.

Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to S and until further order, that Judge be Justice Watts, if he is reasonably available.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Returning then to the text of Professor Y’s report of 15 December 2009: 3.11Second, the written records of the consultations are very difficult to either read or follow and extremely brief, sometimes less than a single line for a whole consultation. As far as I have been able to decipher them, there seems to be no description of any psychotherapy and A/Prof [S’s] report, as described above, provides no further information in this regard. It is therefore not possible to judge with certainty whether or not [the father] has received the kind of treatment I would expect to be provided by ‘an expert in the field of paraphilia’. 3.12Further, it seems unlikely to me that [the father] has received appropriate treatment for paraphiliac problems in his consultations with A/Prof [S]. Evidence-based treatment of paraphilias, constituting what I believe the research literature identifies as current best practice, involves several structured and sometimes demanding procedures which need to be delivered by a mental health professional with relevant training and experience. A/Prof [S] does not report such in his curriculum vitae and I find it difficult to believe that he would not report this as part of his treatment, if it had occurred. It should be borne in mind that [the father] was not referred to A/Prof [S] for treatment of paraphilias. 3.13Similar questions are raised in regard to the treatment undertaken by [the father] with … the psychologist in [Queensland], between 1998 and 2002. The subpoenaed case notes are reasonably detailed and understandable but make no mention of the procedures I would expect to be employed in the treatment of paraphilias, with the exception of some reference to schema-focused therapy. This is also mentioned in the transcript of [the Queensland psychologist’s] evidence at the trial in April 2006. 3.14Schema-focused therapy, a development of cognitive-behavioural therapy, aims to help a person identify unhelpful thinking patterns (schemas), usually acquired during adverse childhood or adolescent experiences, and which render the person psychologically vulnerable. There is accumulating research evidence that these underlie many chronic problems, including paraphilias, and need to be addressed if therapeutic gains are to be maintained. Schema-focussed therapy would most likely be an important component of a suitable treatment plan for [the father] but it would most likely be insufficient and there is no record in [the Queensland psychologist’s] notes of the other procedures indicated for the treatment of paraphilias. 3.15In summary, there is no evidence in the clinical notes or reports available to me to suggest that [the father] has received current evidence-based treatment for his paraphilia. The continuation of his difficulties after his treatment in [Queensland] supports this conclusion. The relatively small number of consultations he attended throughout 2009 also suggests he was not participating in the structured type of therapy I believe he needs. 3.16I was then asked to provide my comments on the expertise of A/Prof [S] to draw conclusions as to3.16.1the recovery of [the father] from a sexual addiction3.16.2the risk of [the father] re-offending3.16.3whether the risk of re-offending is easily manageable3.16.4the relevance of there having been no physical contact with another person in [the father’s] offending behaviours3.16.5the stability of any recovery by [the father] from his condition3.16.6the risk of [the father] indulging in paraphiliac behaviour in circumstances where [the child] may either see or become aware of such behaviour and the likely effect on [the child]. 3.17Before I can comment on these issues it is necessary to clarify two points. First, probably less important but necessary from my point of view, I do not recognise the term ‘sexual addiction’ as meaningful or useful. It is not used in standard diagnostic references and carries connotations that I see as unfortunate and inappropriate. A person may become obsessed with some aspect of sexuality, as with any other part of the universe, meaning that it involves an imbalanced and excessive involvement with that aspect, usually to the detriment of other aspects of life. This description would fit [the father’s] known exhibitionist behaviour, as it typically does other paraphilias, and that is how I regard his problem in the following discussion. 3.18Second, I strongly believe that at least as important as A/Prof [S’s] expertise are the relevance and reliability of the observations his conclusions are based on. As stated above, I believe A/Prof [S’s] curriculum vitae confirms his expertise for the clinical treatment of the problems for which [the father] was referred to him. A/Prof [S] effectively makes the point in his report at II.25-28 where he states his is a treatment report ‘limited in scope’ and he recommends the appointment of an independent expert if ‘there is need for independent assessment’. A/Prof [S] was able to provide a clinical psychological report, not a forensic psychological report. 3.19A forensic psychological assessment is very different from a clinical or other psychological assessment, so much so that experts in the field agree that an individual psychologist can do only one or the other in an individual case. Clinical assessments are undertaken to identify psychological problems and their probable causes, and to plan and monitor progress in therapy. Forensic assessments are undertaken to answer psycholegal questions, to assist courts, similar tribunals, or organisations in their decision-making. These quite different aims are reflected in the use of different assessment methods and procedures. 3.20As essential ingredient in forensic psychological assessment is the adoption of a sceptical approach towards all sources of information. Forensic assessments are usually required in situations where the person/s being assessed will be under pressure to present themselves in a favourable light, consciously or unconsciously. Two strategies are employed to counter this. 3.21First, it is essential that collateral information is obtained from sources independent of the person/s being assessed, to provide an indication of how reliable their statements are. This collateral information may come from interviews with other people, existing records, or similarly independent sources. Second, it is usual to apply one or more forensic psychological tests. These have been considerably developed in recent decades, specifically to answer psycholegal questions, unlike clinical tests, as discussed above. The better forensic tests have been carefully developed on proper psychometric principles, normed on relevant populations, and often include measures of reliability, including indications of deliberate feigning of results. They provide an essential alternative to the known unreliability of interview impressions or clinical opinion. 3.22There is no suggestion in the information provided to me that [the father] has undergone a forensic psychological assessment. Without this there can be no confident answers to the last set of questions. Instead, there has been a sometimes naïve acceptance that he is being truthful when, for example, he claims that he has not offended sexually in recent years. The evidence provided for this is that he has not convicted for further offences, a situation that could just as easily reflect a change in his manner of offending resulting in less risk of being caught. Sex offenders often develop greater skill at avoiding detection and apprehension. 3.23I made this point to the instructing solicitors, that to make a reliable expert judgment of the risk of [the father] offending sexually again I would need to conduct a full, proper forensic psychological assessment of him, or at least have access to the results of such an assessment. This would involve the application of two well-established measures of the risk of future sexual offending and at least one measure of his general psychological status, as well as obtaining independent collateral information. I was advised that [the father] has refused to undertake such an assessment, a fact that has implications I will return to. 3.24For the present, I can only offer the following responses to the last set of questions, with the major reservation that they are not based on the measures or observations needed to offer a more confident opinion. 3.25Neither of [the father’s] treating psychologists report the use of even clinical measures that would support a claim that he shows any recovery from his paraphilia. 3.26No objective, independent, research-based measures are reported that would provide a basis for confident predictions regarding [the father’s] risk of re-offending. 3.27The risk of re-offending is never easily managed but can be reduced by successful treatment using evidence-based procedures, including relapse prevention and management. There are no reports indicating [the father] has had such treatment. 3.28The evidence provided in support of [the father’s] claim that his sexual offences have not involved physical contact with another person apparently comes only from [the father]. This may be sufficient for clinical purposes but is quite insufficient for forensic purposes and would need careful corroboration. 3.29As there is no reliable evidence of [the father] having recovered from his paraphilia the question of his maintenance of a recovery is premature but it would hinge on his successful completion of appropriate treatment, including relapse prevention and management. 3.30The historical account of [the father’s] exhibitionism describes a gradual progression in the overtness and recklessness of his sexual misconduct, with a consequently increasing risk of harm to anyone exposed to it, including [the child]. This risk may also be increased as [the child], and her likely friends, approach the age of girls [the father] is reported to be attracted to. A progression in seriousness of sexual misconduct is typical of many sex offenders so it must be considered a possibility for [the father]. The level of risk can only be assessed reliably by a full forensic assessment. It is not possible, without more information, to predict the exact nature of any harm potentially caused to [the child] if further sexual misconduct by her father impinged on her. 3.31Finally I was asked, From your examination of the reports of Dr [W] and his oral evidence (say) whether the history disclosed to A/Prof [S] by [the father] reflects fully the nature and extent of [the father’s] behaviour and, if it does not, what, if any, is the significance of any omissions by [the father] from that history. 3.32In his report of 16 May 2005 Dr [W] recounts allegations by the then Mrs [Marsden] of a range of paraphiliac and inappropriate behaviours by her husband, including the possession of girls’ underpants, which he was said to use as a stimulus while masturbating, the use of binoculars to watch girls while he masturbated, using a girls’ clothing catalogue as a stimulus while masturbating, masturbating while being observed by girls, and minor thefts. She also described [the father’s] prolonged relationship with a then 13 year old girl [overseas] in terms which strongly suggested an inappropriate involvement by him. 3.33However, Dr [W] reported that [the father] claimed ‘there had been a lot of misrepresentation by his wife’ and that his counsellor in Queensland had ‘misunderstood’ the nature of his relationship with the [foreign] girl. [The father] alleged that [the mother’s] brother has fabricated complaints against him. [The father] did acknowledge incidents resulting in complaints to the police and convictions but generally offered excuses for what had happened. Dr [W] also mentions other incidents reported in notes obtained under subpoena. [The father] appears to have a fairly lengthy history of sexual misconduct which he is reluctant to accept responsibility for. 3.34Dr [W] expressed marked doubts regarding the ‘candour’ displayed by [the father] and hence the sincerity of his expressed remorse. He concluded that ‘at the present time [the father] is significantly playing down the nature and significance of the above incidents…’ (p.22). 3.35I have gained the same impression from reading Dr [W’s] report and the transcript of Dr [W’s] evidence, particularly the statements and questions put by [the father] during his examination of Dr [W]. In my opinion [the father] persistently attempts to minimise the seriousness of his sexual misconduct, the risk of harm it has already presented to his victims, and the risk he may present in the future including but not only to [his daughter]. 3.36The paucity of description of therapy in both A/Prof [S’s] report and his case notes makes it impossible to judge reliably how open and honest [the father] has been in his discussions with A/Prof [S] regarding his history of sexual misconduct. A/Prof [S] stated he had read Dr [W’s] report. The account by [the father] of both his sexual misconduct and his relationship with the [foreign] girl, as reported on pages 3 and 4 of Dr [S’s] report, is brief, involving a considerable degree of under-statement compared with the details in Dr [W’s] report, and strikes me as self-excusing. 4.Conclusions 4.1it has been difficult, sometimes impossible, to respond confidently to the questions contained in my instructions in this case, primarily because [the father] has never had an appropriate forensic psychological assessment.4.2Even the tentatively positive conclusions contained in the reports of A/Prof [S] and Dr [W] I would give little weight in this context as they are apparently based largely or completely on clinical opinion formed during interview or counselling. 4.3There is no evidence in any of the documents provided to me that [the father] has received appropriate psychological treatment for his exhibitionism and any associated issues. 4.4I note in the transcript of the April 2006 trial [the father] presses Dr [W] on his lack of use of psychometric assessment to support his diagnosis or conclusions. Yet I have been advised that [the father] has declined to be assessed now. This seems at odds with his claims of recovery and of being highly motivated to develop his parental relationship with [the child]. 4.5On the other hand, there are sufficient worrying signs in the established history of sexual offending, inappropriate behaviour towards at least one young girl, and defensive minimising of these issues, for me to express concern regarding [the father’s] future behaviour. If this seems unjustified to him, he can readily substantiate his claims by participating in an appropriate forensic psychological assessment. 4.6All predictions of future behaviour involve some risk of error and that risk is greater when the predictions have little objective, research-based evidence. This risk could be reduced in this case, if [the father] chooses to do so.

Ratio Decidendi

Legal Principle Established

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