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 of 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

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

2. 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

1. 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.

2. The father appealed those orders and on 21 November 2007 the Full Court dismissed that appeal. 

3. The father’s application to the High Court for special leave to appeal was refused. 

4. 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 a single judge of the Family Court of Australia other than the Honourable Deputy Chief Justice Faulks for further hearing.

   4.That prior to the re-listing of the father’s application, the father file and serve on the mother all material upon which he wishes to rely at the hearing, including any reports of experts that he wishes to put before the court.”

5. The hearing of this matter commenced on 14 September 2009 for a short time.  It proceeded for a short time on a number of other days.  The final stage of the hearing took place on 4 and 5 February 2010.

6. There was a preliminary argument as to the meaning of order 3 made by the Full Court on 28 August 2008.  The father asserted that the Full Court, by its order, required the single judge to hear all of the evidence and all of the submissions and deal with any application about the rule in Rice & Asplund at the conclusion of that full hearing.

7. I ruled against the father on that interpretation, finding that the Full Court had not fettered my discretion in that way.  At paragraph 81 of the Full Court’s reasons, Their Honours say:-

   81. For those reasons we are of the view that the appeal must succeed.  The matter should be remitted for hearing on the preliminary issue raised by Rice & Asplund by a judge other than Faulks DCJ.  The manner in which the new trial judge intends to proceed with the preliminary matters will be a matter for the trial judge to determine.  In order to progress the matter however, we propose to make orders for filing of material including the psychologist’s report, so that the matter is in a position to proceed as soon as it can be listed.

8. I resolved to hear the preliminary issue raised by Rice & Asplund before embarking on full scale rehearing, but on the basis that if the father was successful, the evidence given at this hearing would form part of the evidence at the final hearing. 

FORMULATION OF THE QUESTION IN A RICE & ASPLUND HEARING

1. At paragraphs 57 and 58 of the judgment of the second Full Court (26 August 2009), the Full Court formulated the question in a Rice & Asplund hearing in the following way:

   57.In Miller & Harrington (supra) the Court posed the question:

   105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

   58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:

   (1)for a prima facie case of changed circumstances to have been established; and

   (2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

MATERIAL RELIED UPON

Father

1. The father relied upon the following documents:

   10.1.Application filed 1 September 2009;

   10.2.An affidavit of the father filed 28 September 2009.  That affidavit had attached to it a report from Dr S dated 18 September 2009; letters from M Family Centre dated 28 July 2006 and 12 May 2007 (the new M Family Centre letters); certificates from M Family Centre dated 31 May 2007 and 27 June 2007 in relation to courses the father had done at M Family Centre and an affidavit of Mr F sworn 28 September 2009.  Mr F was not required for cross examination.  I place little weight on his evidence.  His opinion is not an expert opinion.  His opinion is based largely on reports given to him by the father and by subjective reporting by the father to Mr F. 

   10.3.The father had previously filed an affidavit of 1 September 2009 which set out much of the history of the matter.  His affidavit of 28 September 2009 was the refinement of the material in that affidavit so that the later affidavit only dealt with matters that the father said were relevant to the determination of the threshold issue applying the principles in Rice & Asplund.  The father however wished the affidavit of 1 September 2009 to be read by Professor Y prior to the father’s cross examination of Professor Y, which Professor Y did. 

Mother

1. The mother relied upon:

   11.1.An affidavit by Ms G filed 14 December 2009; and

   11.2.An affidavit of Professor Y filed 15 December 2009.

Other evidence and material read

1. With the consent of the parties, I read the following judgments:

   12.1.The Reasons for Judgment published by Faulks DCJ on 4 August 2006 (Faulks DCJ’s first judgment).  These are the Reasons that gave rise to the current orders which provide that the child have no direct contact with her father.  It is obviously important for me to have those Reasons before me when determining whether there is a prima facie case of changed circumstances since 4 August 2006 and whether there is a sufficient change of circumstance to justify embarking on a full hearing. 

   12.2.The Reasons for Judgment of the Full Court dated 21 November 2007 dismissing an appeal from the current orders (the first Full Court’s reasons). 

   12.3.The Reasons for Judgment of Faulks DCJ of 28 August 2008 dismissing a further application by the father to reinstitute proceedings for parenting orders (Faulks DCJ’s second judgment). 

   12.4.The Reasons for Judgment of the Full Court of 26 August 2009 upholding an appeal against the order of 28 August 2008 and remitting that matter for rehearing (the second Full Court’s reasons). 

2. Exhibit A contains documents which were tendered by the mother and admitted into evidence by consent.  Those documents are:-

   13.1.A letter of instruction sent to Professor Y dated 11 November 2009 by the solicitors for the mother.

   13.2.A letter of instruction sent to Ms G dated 11 November 2009 by the solicitors for the mother. 

   13.3.Letter from Dr Y dated 31 January 2010 setting out Professor Y’s experience and the treatment of sex offenders and paraphilias (Professor Y’s CV).

   13.4.Letter from Dr Y dated 31 January 2010 regarding the forensic psychological tests that might be used in the assessment of a person who may be at risk of sexual misconduct or offending in the future (Professor Y’s letter about forensic testing). 

   13.5.Copies of the documents originally provided to Professor Y as referred to in Professor Y’s report attached to his affidavit filed 15 December 2009 (including Dr W’s report dated 16 May 2005). 

3. Oral evidence was given by Associate Professor S, Professor Y and Ms G.  The mother chose not to cross examine the father.  The mother did not file any written evidence.  The father, on occasions during the hearing, indicated that he may wish to ask the mother questions in his case, but in the end chose not to do so. 

LIST OF APPLICATIONS AND APPEALS

1. Counsel for the mother provided the following list of the father’s applications and appeals:

   Family Court at Canberra:

   (a)Initiating application for interim and final orders filed 28 July 2008 seeking to reopen child and property matters.

   (b)Application in a case filed 8 April 2008.

   (c)Enforcement summons filed 5 March 2007 regarding release of NAB funds. 

   (d)Application in a case filed 17 July 2007 seeking orders resuming contact at M Family Centre or alternate venue and that wife attend ARCK program, show child all correspondence, and display photographs of husband in home.

   (e)Application in a case filed 30 October 2006 seeking stay of no contact order of 4 August 2006 and of other property orders.

   (f)Application in a case filed 29 March 2006.

   (g)Application in a case filed 24 March 2006 seeking leave to adduce evidence in final hearing of Ms Ld (Realtor C), Dr X, Dr T or Dr B and Dr E.

   (h)Application in a case filed 28 November 2005 seeking second valuation of C, increased contact, more than one gift at Christmas, wife sign documents and counselling for parties regarding wife’s anxiety about contact.

   (i)Application in a case filed 23 December 2005 seeking increased unsupervised contact, or if supervised cost shared, that court “admonish wife and her family not to manipulate or subject child to verbal abuse of alienation of her father”, increased telephone contact (x 2/week) and allowing husband to give gifts of an appropriate nature to the child.

   (j)Application in a case filed 16 August 2005 seeking resumption of contact at M Family Centre following husband’s return from overseas, that telephone contact continue, correspondence to be allowed and child’s wife to send photographs.

   (k)Application in a case filed 18 March 2004 seeking that orders made on 27 January 2004 in the Federal Magistrates Court be set aside, interim contact when residing in  ACT, or by telephone if not, and parties attend counselling.

   Eastern Appeals Registry at Sydney:

   (l)Application filed 5 June 2008 seeking leave to file a notice disputing costs out of time.

   (m)Application filed 24 April 2008 seeking: 1) stay of Full Court order and 2) stay of Full Court orders thus reinstating orders of Trial Judge regarding contact pending appeal.

   (n)Notice of appeal filed 17 September 2007 appealing orders of 21 August 2007 for husband to pay two thirds of wife’s costs and seeking order forcing M Family Centre to resume contact, and if not alternate venue for contact.

   (o)Application in an appeal filed 17 September 2007 seeking that EA 110 be heard with substantive appeal.

   (p)Application in an appeal filed 26 September 2007 seeking that subpoenaed M Family Centre material be allowed into evidence.

   (q)Application in an appeal filed 6 March 2007 seeking reinstatement of husband’s abandoned cross appeal.

   (r)Notice of cross appeal filed 20 December 2006 seeking that wife’s appeal to be dismissed, costs and order for contact with child.

   (s)Notice of appeal filed 1 September 2006 being substantive appeal against orders of 4 August 2006. 

HISTORY OF THIS HEARING PRIOR TO THE FINAL STAGE

1. The father filed his new application for final orders on 1 September 2009.  He filed a supporting affidavit on the same day.  When the matter came before me on 14 September 2009 for the first time, there was a discussion in relation to whether or not the father had done one of the fundamental things the Full Court had allowed the father to do, namely, file a report from his treating psychologist.  The matter was adjourned on 14 September 2009 to 1 October 2009 to enable him to do that.  The father filed a more focused affidavit, annexing Acting Professor S’s report on 28 September 2009. 

2. On 1 October 2009 the solicitor for the mother informed the court that he had only been served with the father’s affidavit of 28 September 2009 and although he had read the affidavit, he had not had an opportunity to consider a response to Acting Professor S’s affidavit.  He informed the court that the mother may wish to file expert evidence from another professional.  On that day leave was granted for the mother to issue a subpoena to Acting Professor S for his notes.  The matter was otherwise adjourned to 2 November 2009.

3. On 2 November 2009 the mother sought leave to use photocopies of Acting Professor S’s notes for the purposes of providing them to an expert to be employed by the mother and a direction was made in relation to the filing and serving of evidence upon which the mother intended to rely at the hearing on the threshold issue from an expert in paraphilia on or before 14 December 2009. 

4. The matter was adjourned on that day to 16 December 2009.  The mother filed evidence from Professor Y. 

5. On 16 December 2009 the matter was adjourned for two days to allow time for the father to read Professor Y’s report. 

6. The matter came before me on 18 December 2009 and I recorded during the proceedings a summary of what happened on that day.  A summary of what happened on 18 December is as follows:-

   I asked the father whether or not he had received Professor Y’s report and he confirmed that he had and that he had had an opportunity to read it.  I asked the father whether or not there was anything he now wanted to do, having read the report of Professor Y, in relation to how he conducted his case.  Specifically I asked him whether or not he wished to proceed to the scheduled hearing on 4 and 5 February 2010 on the current material.  The father indicted that he was aware that Professor Y had suggested a forensic report.  I specifically drew the father’s attention to the final part of Professor Y’s report, the second last paragraph, which talked about the father participating in an appropriate forensic psychological assessment.

7. The father clearly indicated on 18 December 2009 that he did not want the proposed hearing dates vacated and that he would see if Acting Professor S could prepare a forensic report for him or to arrange one to be done.  The mother’s position was that if the father intended to obtain a forensic report, then she would welcome an opportunity to present that material to Professor Y 14 days prior to the hearing. 

8. I consequently made an order that any further material the father wished to rely upon be filed and served on 20 January 2010 and I otherwise confirmed the final stage of the hearing which was set down to commence 4 February 2010 with 5 February 2010 reserved if needed (as it was). 

DR W’s ORIGINAL RECOMMENDATIONS

1. It is useful to record part of Dr W’s report dated 16 May 2005 (contained in Exhibit A).  Section ‘h’ is entitled “Desirability and effect of parents proposals for residence and contact” and is in the following terms:

   The mother seeks a no contact order.  However it is my view that if acceptably safe, an opportunity should be provided for [the husband] and [the child] to consolidate and maintain a relationship now.  I believe she will cope with this if there is no misconduct and that it will provide a base for a sustainable relationship of her choosing when she is an adult.

   There is no doubt that [the husband] has suffered from the condition of Exhibitionism.  The question is whether he has recovered from this and whether the recovery will be maintained.  This gives rise to three possible situations.  The first is that the Court forms the view that there is an unacceptable risk that he will continue to behave in this way.  The second that he has had this condition which is in remission now but that there is an unacceptable risk that it will recur within the period of the childhood of [S].  The third is that it is in remission now and that there is not an unacceptable risk that it will recur within the childhood of [S].  Overarching these options is whether the Court finds that his preferred victims are younger females, which would make any relapse potentially more damaging.

   In the event that the Court takes the first view, then there seems little prospect that any contact could be anything but supervised.  Under those circumstances, I would recommend professional supervision at this point, and the contact be introduced on a two hours per fortnight basis.  Unfortunately the constraints of professional supervision is such that it is unlikely that anything but a small increase in the duration and possible frequency of this contact would be possible in the foreseeable future.  However depending on reports from treating psychiatrists or psychologists, and subject probably to a further hearing, the introduction of non-professional supervision may be possible, for instance supervised by friends of the father or friends or relatives of the mother.  …

   In the second instance my recommendations would be along the same lines as above.

   In the third instance, my recommendations would also be along the same lines as above, however it may be that professional supervision could be limited to six or twelve months provided there are no further offences detected and subject to a favourable report from the father’s treating psychiatrist [or] psychologist.

   I would note however that my understanding of this condition is that the risk of relapse is sufficiently high, particularly if [the husband] continues to feel rather stressed, that I doubt that the Court could make a finding of no unacceptable risk.  However I would defer to the opinion of a specialist in paraphilias in this regard.

   I have also been asked to consider contact between [the child] and members of the father’s family both in the United States and in Australia should they visit.  I have not had the opportunity to meet [the father’s] family, however if it is the case that they are not prepared to recognise what is a degree of risk the Court may feel is present in contact with the father, then I would not recommend orders for contact which go beyond the amount of contact ordered for the father.  In the event that the Court makes orders for unsupervised contact along the normal lines, then it is probably not necessary to specify anything additional in regard to the father’s relatives contact with [the child], as it is probably reasonable to assume that any contact would be accommodated within the father’s periods of contact and that there would not be any additional risk which would go beyond that posed by the father.

1. At page 23 he comments “I am not aware of any suitable professionals in the ACT, but an international expert in this area works in Sydney, Professor Neil McConachie and he may be prepared to undertake ongoing treatment or he may be able to recommend an appropriately qualified person, as he has virtually withdrawn from all practice”.  Another expert’s name, Dr O’Day, was also mentioned by Dr W. 

2. The father, at the hearing in 2006 questioned Dr W (see page 841 of the transcript contained in Exhibit B), and asked Dr W whether or not somebody in Canberra could do the job.  Dr W responded by saying “I think that it needs to be someone that’s directed towards the problems that you’ve had, the exhibitionism problem”.  The transcript is incomplete but it discloses Dr W had made specific suggestions of specific names of professionals who had expertise in paraphilia and had recommended that the father see one of them.  Dr W explained that the reason he had made that suggestion was that he thought it would provide almost a prescription for the father to go and see somebody with that level of expertise who would then be able to produce a report to the court.  Dr W said that he thought it important that the father be able to get the best possible and most useful expert evidence from a person of this nature who was fully informed about all of the background information.  This information was given to the father in 2006. 

3. At paragraph 50 of the Reasons of Faulks DCJ on 4 August 2006, His Honour noted that Dr W’s report, which was before him at the hearing, recommended consultation with an expert in the field of paraphilia and noted that he had even recommended who would be appropriate. 

4. At paragraph 107 of the first Full Court’s reasons (21 November 2007) they record that during the hearing before Faulks DCJ, Dr W said he was unaware of any suitable professional to undertake the treatment of paraphilia in Canberra, where the father lives, but named an expert in Sydney who might be able to recommend an appropriate person. 

5. At the time the father did not take up Dr W’s suggestion (and at the time of the hearing before me I was informed that Profesesor McConachie has passed away). 

6. So far as I know, he has never actually seen anybody with the type of experience in paraphilia that Dr W referred to and I will say more about that when I refer to Acting Professor S’s level of expertise.  The expert and the report recommended by Dr W is exactly the type of expert and the type of report that Professor Y has suggested be obtained.  I pause to note that so far as I am aware, the father did not actually see anybody before he saw Acting Professor S in January 2008 (18 months after the recommendation by Dr W to which I have just referred). 

THE REASONS GIVEN BY FAULKS DCJ FOR ORDERING NO SUPERVISED TIME WHEN DR W HAD RECOMMENDED TIME

1. The first Full Court (Warnick and Thackray JJ with whom Le Poer Trench J agreed) in the decision on 21 November 2007, discussed (at paragraphs 48 - 57) the reasons given by Faulks DCJ for ordering that the child have no time with her father in circumstances where Dr W had suggested supervised time in the following terms:

   31.1.His Honour ultimately decided not to order supervised contact for three reasons. 

   31.2.The first related to his concern that, even if he ordered such contact, the father would go overseas for extended periods to pursue his business activities and his medical treatment.  Quite apart from any impact this might have on the child, his Honour considered that the father’s plans demonstrated a lack of understanding about how his behaviour might impinge on the child.  In this regard, it is significant to recall that the father had already spent extensive time travelling overseas. 

   31.3.The second reason for his Honour deciding not to order supervised contact related to the father’s “almost obsessional relationship with the wife” and the manner in which he had used the child in a “totally inappropriate” way with a view to assisting him to resume a relationship with the wife.

   31.4.The third reason for his Honour’s ultimate decision related to the negative impact that even supervised contact would have on the wife, which he found could have “vicariously unfortunate effects on [the child]”. 

2. In relation to the third reason, the Full Court had earlier quoted what His Honour had said and had interpreted His Honour’s concerns in the following way:

   55.His Honour then said:

   81.This leads me back to the question of supervised contact.  Communications with a child about her father visiting her are not things which would ordinarily excite the concern of those who are supervising.  That in this context makes the supervised contact even more problematic. 

   56.The second sentence of this paragraph is somewhat cryptic but, in context, it is clear his Honour was concerned that the husband might speak with [the child] during supervised visits in a way that might appear innocuous to the supervisor but would, in fact, have a deleterious impact on the wife, who would be likely to hear from [the child] what was said during the visits.

3. The Full Court found that His Honour had given adequate reasons for ordering that there be no face to face or other direct communication between the child and her father, notwithstanding what was in Dr W’s report.

UNACCEPTABLE RISK FINDINGS

1. On a number of occasions during the hearing before me, the father asserted that Faulks DCJ had found that he was not an unacceptable risk to the child.

2. Conveniently at paragraph 99 of the first Full Court’s decision, the Full Court summarises Faulks J’s unacceptable risk findings.  Paragraph 99 is in the following terms:

   99.  Although his Honour did not find there was “an unacceptable risk” of the husband interfering either with [the child] or her friends, he determined that, unless the husband undertook treatment, he may engage in “exhibitionist” behaviour in the presence of friends of [the child].  In our view, that was a matter his Honour was entitled to take into account in determining whether it would be in [the child’s] best interests to spend time with the husband.

3. When discussing Dr W’s report, the first Full Court summarised his discussion in relation to unacceptable risk in the following way:

   112.  Dr W went on to discuss the possibility of [the child] being “drawn into inappropriate levels of intimacy”, which he was at pains to emphasise “may not necessarily involve intercourse or other sexually explicit behaviour”.  He also identified a second risk, namely [the child] being present while her father was carrying out his exhibitionist activities.  Finally, he considered the risks associated with [the child’s] friends being the object of the husband’s exhibitionist behaviour.  He referred to the possibility of [the child] feeling “a sense of guilt and shame on behalf of her friends” and could also “cause her friends to become alienated from her”.

4. Dr W went on to say that these risks to the child might be able to be contained within the context of supervised contact.  However, Faulks DCJ for reasons discussed above determined that supervised contact was not in the child’s best interests.

PREVIOUS EXAMPLES OF THE FATHER WANTING TIME TO FILE FURTHER REPORTS

1. The first Full Court referred to the fact that in both March 2006 and May 2006 the father had indicated that he would like to file further reports, notwithstanding that those reports were not at that time in existence (see the discussion by the first Full Court relating to ground 2 of the appeal in paragraphs 82 through to 95 of the first Full Court’s decision). 

THE FACT THAT NO FORENSIC REPORT WAS PROVIDED BY THE FATHER

1. Acting Professor S gave evidence that the father had approached him to make arrangements for a forensic report to be prepared.  Acting Professor S suggested that the report should be prepared by an independent psychologist, and recommended the best person from within his firm. It was unclear as to whether or not this psychologist had expertise in paraphilia.  In any event, this person was then hospitalised, and the father could not get another appointment before leaving the country. The father then went overseas.  The father gave no evidence as to when he was overseas but it was for a period of time that meant that no forensic report was available at the hearing.  The father’s primary position was that in his view he should succeed on the threshold issue based on the evidence that he had and that he did not need a further report.  He said on more than one occasion during the final stage of the hearing that he would be prepared to undertake one.  As set out above, the father has had opportunities since 2005 to obtain a report and treatment from an expert in paraphilia but had failed to do so.  I made it clear to the father that I would have to decide the case on the evidence that was presented to me.

2. Another position the father took was that we were getting into the hearing far too deeply and a forensic report was not a matter to be considered as a threshold issue but rather to be something obtained once he was successful in his application to have the court entertain a full hearing on his parenting application.

3. I pause there to comment that over the two days, it was clear that the father was an intelligent man and having read the evidence that he has prepared and the judgments from previous hearings, it is clear that he understands matters when he chooses to do so.  I found as disingenuous, some of the statements he made about his lack of understanding, particularly since Professor Y’s recommendations came to the father’s attention prior to my discussion with the father on 18 December 2009. 

4. I find that the father by 18 December 2009, was well aware as to the position of Professor Y.  Not only did the father at no time make any application for an adjournment of the proceedings (even when explicitly invited by me to consider that option), he chose to proceed on the basis that he had not achieved what Professor Y had suggested and although I have very imprecise evidence about it, part of the reason for that was the father leaving Australia for a period of time. 

5. As will be discussed later, the mother has been significantly affected by the continuing litigation and in turn her capacity to parent the child is being affected.

6. At some point, a balance needs to be found in the child’s best interests between the number of opportunities given to the father to prepare and present his case and the effect continuing litigation has upon the mother’s parenting capacity.

7. There was some debate about whether Professor Y had been correctly informed about the father’s prior willingness to undergo testing.  At paragraph 4.4 of Professor Y’s report of 12 December 2009 he says the following:-

   I 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].

8. The father took issue with the statement that he had declined to be psychometrically assessed.  He asked Professor Y where he had obtained that information and was informed that the mother’s previous solicitor had provided him with that detail. 

9. Counsel for the mother was asked by me as to the basis upon which instruction had been given to Dr Y.  She referred to questions that the father had asked Dr W at the hearing in July 2006 (I have already referred to this above).  

10. It is fair to comment, as the mother does, that the father has been aware for some time that a report by somebody who has a special expertise in paraphilia would be something that would be important for the court to have.  It might be splitting hairs to argue about whether or not the father refused to have such a report done.  It is more accurate to say he has had ample opportunity to have had it done and has not in the time since July 2006, attended to having it done.  In December 2009 he took the decision to proceed with the hearing even though he was uncertain as to whether or not he could get it done in the further limited opportunity he was given, given that he did not want the hearing date vacated. 

“SIGNIFICANT CHANGES” ASSERTED BY THE FATHER

1. The father in his affidavit of 28 September 2009 at paragraph 12, sets out what he says are the significant factors justifying his application.  I discuss each of them in turn.

Effluxion of time

1. On a number of occasions the father referred to the effluxion of time as being an important consideration when considering the threshold test. 

2. The second Full Court said, at paragraph 59:-

   59.It is also important to highlight a certain class of case, of which this is one, where the Court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child.  These cases can provide different challenges, both for the applicant and the Court.  Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact.  Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future.  The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child [my emphasis added].  These are only examples but they represent some of the conditions under which a party might wish to return to court.  If these matters were never to be considered, then a conclusion reached such as in the present case in 2006 that no face-to-face contact was permitted would prevent the father from ever making an application for face-to-face contact, even though the events upon which the original order was made had occurred many, many years before and the child was significantly older.  This was what lay behind the comments of Evatt CJ in The Marriage of Zabaneh (1986) 11 Fam LR 167 at 172 (Fogarty and Renaud JJ agreeing):

   The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account. 

3. Counsel for the mother drew attention to the sentence emphasised in the above passage.  She made the point that a number of the persons who had been exposed to the father were pubescent girls.

4. Dr W at page 14 of his report records reviewing documents obtained under subpoena from the NSW Police Service which contain complaints in a police event recorded on 29 October 2002 where the complaint were girls aged about 15 years.  The father’s inappropriate romantic relationship with “Catherine” is described by Faulks DCJ in some detail and summarised at paragraphs 14 and 15 of the first Full Court judgment.  “Catherine” was 14 years of age.  At paragraph 60 of his first judgment, Faulks DCJ records the finding that “I have no doubt that the relationship was of a romantic nature, was of a partly sexualised nature and was totally inappropriate”.

5. I took the point being made by counsel for the mother to be that the effluxion of time is a factor against the father being successful on the threshold issue because the child is that much closer to being of an age where she will have friends to whom the father might be attracted.  But the child is still only almost 8 years of age.  Given the age of some of those to who the father has been attracted, I do not place great weight on the submission made by counsel for the mother against the father relating to the effluxion of time.

6. Obviously the effluxion of time has also meant that a status quo has developed as a result of the child not seeing her father since the decision of the first Full Court, but that could be overcome by a gradual introduction if that was otherwise appropriate. 

7. I find that the mere passage of time, without more, is not something that the father can rely upon in support of his succeeding on the threshold issue. 

The submission that what is sought is not a substantial change because the father no longer seeks a residence order in his favour

1. There is no force in that submission at all.  This is a rare case where a trial judge has ordered that the child not have any direct contact with her father.  The father wants to relitigate and have a new final hearing where he seeks orders that he have substantial and significant unsupervised time with his daughter.  That is a substantial change. 

The father’s assertion that there were no further offences

1. The father on a number of occasions asserted that there had been no offences for eight years.  The father had difficulty during the trial accepting the findings of Faulks DCJ about the swimming pool incident.  Those factual findings were the subject of an unsuccessful appeal to the Full Court and an unsuccessful application for leave to the High Court.  The father cannot assert that he has committed no further offences for eight years.

“The [swimming] pool incident”

1. During Professor S’s evidence, there was some discussion about Faulks DCJ’s findings on 4 August 2006 that the father was masturbating in public outside a swimming pool in the Australian Capital Territory, in 2006, just months before the original trial.  The trial judge concluded that the father was involving himself in that activity. 

2. The trial judge had evidence that on a very hot day the father had backed his campervan up against the chain-link fence of a public swimming pool - a place where he was likely to be able to observe scantly clad, athletic young women.  The father was looking left to right “nervously” casting his eyes back and forth between the swimming pool and the carpark (presumably where other people might be walking by any moment).  The father was sitting in the driver’s seat of his campervan facing sideways towards the driver’s door.  The driver’s door was about one foot ajar.  The father was observed to be making small movements with his left shoulder and the top of his arm moving up and down.  The trial judge came to the conclusion that the father was masturbating.  

3. The factual findings made by the trial judge in relation to the swimming pool incident were the subject of challenge on the first appeal.  The majority concluded those findings made by the trial judge were open to him.

4. The decision of the Full Court was subject to a special leave application by the father to the High Court.  Special leave was refused.

5. This hearing proceeds on the basis that the factual findings made by Faulks DCJ on 4 August 2006 in relation to the swimming pool incident are accepted by me as fact. 

6. On a number of occasions during the hearing, the father sought to assert that he was not involved in the swimming pool incident in the way that the court has found that he was.

7. The incident took place in January 2006.  The importance of the timing of the incident is that it is evidence that the father, at a period of time when he says he was cured of his paraphilia because of the aversion affect of the breakdown of his marriage and his inability to see the child, was not cured at all.  The continuing denial by the father of his involvement in the swimming pool incident is consistent with comments that Dr Y has made about serious concerns he has in respect of the father’s minimisation of his sexual behaviour in the past and the effect that that sexual behaviour may have had on others. 

The father’s assertion that he has continued treatment as both Faulks DCJ and Dr W recommended. 

1. As discussed above, Dr W did make a recommendation but the father did not take up that recommendation.  He did not seek out either of the experts that Dr W had mentioned. 

2. At paragraph 49 of Faulks DJC’s first judgment, he comments:

   If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.

3. In his second judgment, Faulks DCJ says:

   36. He quotes part of paragraph 49 of my judgment, but quotes it out of context.[1]  The Full Court on the appeal dealt with this aspect of my judgment at some length from paragraphs 38 and following and it is quite clear that their Honours both understood and did not disprove of the approach that I recommended and the reasons for the comment.

   37.The comments in that instance were directed to why I had reached the conclusion I had at that point, based on the fact that [the father] had not, at that point, sought assistance and that that did not give me confidence that the situation would be different in the future.  The fact that [the father] has now returned to court may mean, indeed, that he has received the assistance that I thought he might not, but it does not affect the validity of the judgment, nor does it flow from any real or imaginary invitation on my part that he could undertake the course and then come back to Court.  There was no express or implied invitation to return when the specified condition precedent, which [the father] has identified has being complied with. 

   [1] Paragraph 49 of the judgment of 4 August 2006 states: “In addition, (again with the qualification that if the father was continuing to engage in such activities) it is feasible/possible that the father could engage in such activities with, or in the presence of friends that [the child] may have to stay when she is with her father.  In the past the father has on occasions shown little discrimination about where he conducts his activities and while there is no evidence that he has ever carried them out in the presence of [the child], he concedes that “young women” (at least) are the objects of his sexual fantasies.  If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.”

4. The real question is whether or not what the father has done with Acting Professor S satisfies what was originally envisaged by Dr W.  Having heard both Acting Professor S and Professor Y’s evidence, as I will now discuss, the answer to that question must be no.

THE FATHER’S CONTINUING TREATMENT AND Acting Professor S’s REPORT

1. Acting Professor S provided a treatment report which he states was limited in scope.  Part of that report is as follows: 

   6.  Health, Psychiatric and Psychological History

   Health History

   He has bilateral osteo-arthritis in his knees.

   Psychiatric and psychological history

   The father had counselling in 1998-2002 in Queensldand after depressive episodes and sexual offences.  He was on anti-depressant medications including Zoloft, but struggled with side-effects.  He found the counselling useful, “It helped me to identify childhood circumstances which led to both depression and sexual problems.  I like to understand causality.”  He has been in counselling with me since 9 January 2008.

   8.  Psychological symptoms

   The father was depressed following the death of his mother in 1996.  He was depressed until “my daughter was born (2002).  I felt life started anew, I had a second chance at life.”  He reported being “terribly unhappy” and his relationship deteriorated, “It was not her fault.  I withdrew from her and neglected her.  Then I had a problem with masturbation and on occasion exposure.”  He said that IVF was a stress from 1996.  He reported a “general malaise” but took pleasure in bike riding and his work, “I really missed the mountains.”  He had low self-esteem but was never suicidal.  He had occasional sleep problems with “panic dreams”, but no appetite problems.  He had feelings of detachment from his life.  He had panic attacks twice in 1999-2001.  He did not report symptoms of OCD, eating disorder, trauma, or psychosis.

   9.  Family Court

   The father had difficulties with contact with his daughter S since late 2003.  At times he was overseas and there were periods he was unavailable.  However, he has been involved in an ongoing Family Court dispute about this since January 2004 (relating to both contact and property).  There have been a number of appeals and this has continued. 

   10.  Psychological treatment

   He said that he thought that he offended with exposing himself because, “My life circumstances.  Depression, IVF stress, sex stopped and I sought relief through masturbation.  Over the years it became riskier behaviour.  Your thoughts become skewed and (I) lost touch with boundaries.”  He had the hope “Maybe if they see me, they would become aroused.  A woman would laugh…Sometimes I would say I am sorry as they walked off.  Then after the climax guilt like a tsunami.  Once or twice the women would react almost positively and whistle or yahoo.  I didn’t pursue anything, I was embarrassed and would drive away.”  He said that his attraction to his wife suffered.  He did not use pornography since it was “too blatant, offensive, exploitive.  Though I didn’t have any high moral ground to stand on.”  He never intentionally exposed himself to children.  In the counselling [the father] has shown victim empathy in terms of his exposure of himself, “Seeing a man naked.  I can appreciate that they feel threatened.  I could be schizophrenic or violent.  Now I look at a woman, that could be [S] how would I feel if someone did it to my daughter?” 

   He had some sexual attraction to [Catherine] (then aged 14) who was the daughter of a friend of his sister, “She had a school girl crush on me.  I was the [sportsman], [scientist] and I felt romantic attraction.  I took a pair of her underwear, I masturbated.”  He said that he never acted inappropriately in his interaction with her, “My feelings were not appropriate due to the age difference and that I was married.  I was very depressed and there was no intimacy.  I got sexual gratification by masturbating and fantasy.  I incorporated her in my fantasies.  There was no abuse.  It was a threshold that I had no intention of crossing.”  He added, “I said I am not the same man today.” 

   12.  Treatment and conclusion

   [The father] is not currently depressed.  He does not appear to have any psychological or personality disorder.  The psychological testing was valid and clear of any indication of psychopathology.  It indicated some somatic concerns but no disorder. 

   He has engaged in therapy well.  I have seen him for 17 individual sessions and 12 group sessions.  In the individual sessions he was able to talk about issues relating to his offending and life circumstances.  The group sessions dealt with psychological skills such as relaxation strategies, anger management, assertiveness, mindfulness, self-esteem, sleep hygiene, negative thoughts, and self-care after trauma.  Some of this was relevant to relapse prevention which often relates to a failure of self-care.  It has now been 7 years since any conviction for a sexual offence.  This indicates reasonable stability in terms of his recovery from a sexual addiction and I think that the risk of re-offence can be estimated as low on a range of low-moderate-high.  There is always some risk but I think it is easily manageable and I would note that there was never any contact in the offences. 

Acting Professor S’s oral evidence

1. Acting Professor S explained it was difficult in Canberra to advertise as a specialist in the area of paraphilia, but that he had treated 4 or 5 internet pornography offenders, and had initiated a group of professionals that treated sex offenders for ‘peer supervision’. 

2. Acting Professor S readily conceded that Professor Y had far greater expertise in paraphilia than he did and that although he might be as good as is available in Canberra, he did not hold himself out as an expert in the area of paraphilia. 

3. Acting Professor S explained that as far as he was concerned, the father was in the recovery stage of his addiction. Acting Professor S therefore considered the intervention that Professor Y suggested was unnecessary, and in any event, was a course of therapy rarely undertaken outside correctional facilities.

4. The finding that the father was in the recovery stage was based upon the absence of convictions in the last 8 years, and his self-reporting. Acting Professor S explained that the 2006 incident at the swimming pool was not accepted by him as proved, but in any case, the father had been incident free for over 2 years since then, which is the general guide for the time after which recovery can be assumed.

5. Treatment of the father’s sexual misconduct recovery and his other problems focussed on maintaining emotional stability. Acting Professor S conceded that the treatment of the father’s recovery from paraphilia was not the primary motive in treatment. It was conceded that the treatment of other emotional instability was at the core of his work with the father.

6. Treatment of Paraphilia, where specific, was focussed on ‘motivational interviewing’ which explores with the patient the likelihood that they would re-offend and considering the circumstances under which this may occur.

PROFESSOR Y’S EVIDENCE

1. Professor Y’s qualifications are set out in Professor Y’s CV.  He has been involved in the treatment of paraphilia for over 35 years. 

2. Professor Y was asked to comment upon what Acting Professor S had said.  Part of the report which is annexed to his affidavit of 15 December 2009 is in the following terms:

   3.6I was then asked to state my opinion as to whether [the father’s] consultations with A/Prof [S] amount to compliance with Dr [W’s] recommendations for [the father] to consult with an expert in the field of paraphilia.  Please make reference to the notes of A/Prof [S] of the consultations, copies of which are enclosed.

   3.7A/Prof S’s report of 18 September 2009 is titled ‘Treatment Report on Mr [Marsden]’.  However, much of the report is taken up with various histories and other reports.  The section headed ‘10. Psychological treatment’ consists of two paragraphs on pages 3 and 4, in which there is no description of any psychological treatment, but mostly an account of some of [the father’s] statements during ‘counselling’. 

   3.8The section headed ‘12. Treatment and Conclusion’ reports that [the father] attended A/Prof [S] for ‘17 individual sessions’ but there is no description of the therapeutic content of these sessions.  It is also reported that [the father] attended 12 group sessions which are described as dealing ‘with psychological skills such as relaxation strategies, anger management, assertiveness, mindfulness, self-esteem, sleep hygiene, negative thoughts, and self-care after trauma.  Some of this was relevant to relapse prevention…’  As no diagnosis nor case formulation is provided, it is not possible to judge how these group sessions were seen as indicated for [the father] nor how they relate to relapse prevention as that is usually done. 

   3.9What I take to be A/Prof [S’s] notes, as referred to in my instructions, consist of:

   3.9.1A GP Mental Health Care Plan dated 21 December 2007 by Dr [O] referring [the father] to A/Prof [S] for treatment of an ‘Increase in psychiatric symptoms’, ‘Acute situational crisis’, and a ‘Change in sleep patterns’. 

   3.9.2One and two half pages of written notes which apparently record consultations on 9, 16 & 23 January, 6 & 20 February, 5 & 19 March, 2 & 16 April, and 4 June 2008.  The two half pages apparently record the first consultation, while all of the other consultations are recorded on a single page.

   3.9.3A second GP Mental Health Care Plan dated 4 March 2009 by Dr [O] referring [the father] to A/Prof [S] for treatment of ‘Increase in psychiatric symptoms: Chronic anxiety and depression’, ‘Acute situational crisis: Court denial of access to daughter – 27.8.2008’.

   3.9.4Two half pages of written notes which apparently record consultations on 12 March, 17 May, 28 August, and 11 & 25 September 2009.

   3.10First it should be noted that in neither referral by Dr [O] was treatment requested for paraphilia.  The psychological conditions identified for treatment were chronic anxiety, depression, and acute stress reactions.   Unless [the father] raised with A/Prof [S] paraphilia as an issue for which he was seeking treatment, or A/Prof [S] suggested it to him, there is no immediately apparent reason for assuming such treatment occurred.

3. I pause to record what Acting Professor S said about the discussion between the father and him about treatment for paraphilia. 

   79.1.Upon re-examination, A/Prof S did recall that there was a discussion between the father and himself about possible treatment for paraphilia. He remembered that the father was concerned with fulfilling the requirements of what Dr W had proposed. This involved discussion of an option called ‘chemical castration’ which could only be undertaken by a Doctor in Sydney. Although not explicitly stated, it seems clear the father had not entertained such an “option”. 

   79.2.As to why the father’s GP had not specifically referred the father for treatment for paraphilia, A/Prof S explained that the GP’s referral regarding the father’s chronic anxiety, depression, and acute stress reactions may have been an effort to avoid the exclusion of bulk-billing, as he though treatment for Paraphilia may not have been a Medicare item.  As I note below, Professor Y disagreed.

4. 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 to

   3.16.1the recovery of [the father] from a sexual addiction

   3.16.2the risk of [the father] re-offending

   3.16.3whether the risk of re-offending is easily  manageable

   3.16.4the relevance of there having been no physical contact with another person in [the father’s]  offending behaviours

   3.16.5the stability of any recovery by [the father] from his condition

   3.16.6the 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. 

CONCLUSION

1. The father made an emotional plea saying that he was a victim of injustice and that at some time somebody with sufficient reason will say “enough”. 

2. The father commented that there had been a focus on the emotional effect that the proceedings had had on the mother but little focus on the emotional toll the proceedings had taken on him.  He did, however, have the grace to concede that the real point of Dr G’s report was about the effect it was having on the mother’s parenting capacity rather than the affect it was having on the mother herself. 

3. The father on a number of occasions submitted that even though no forensic report was available, he met the threshold test on the basis of the evidence that he submitted.  I cannot agree with that submission.

4. I accept Professor Y’s critic of Acting Professor S’s report.  I accept that in order to have any confidence that the father has received appropriate treatment for paraphilia, two things need to happen.  Firstly the preparation of a forensic report, including at least three of the four tests referred in Professor Y’s letter about forensic testing which would be administrated by the author of the forensic report.  Professor Y also indicates that (as he makes clear at paragraph 3.23 of his report of 12 December 2009), the report writer would also need to obtain independent collateral information. 

5. 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. 

6. 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.

7. In relation to any proposed report that might be further done in the way contemplated by Professor 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 Professor Y would anticipate that that further treatment would take place within a six to twelve month timeframe. 

8. Given the current state of the evidence, it is not in the child’s best interests for the matter to continue and for further evidence to be received from the parties to support and oppose respectively the orders that the father seeks for the child to spend face to face time with him. 

9. It may be, in the future, the father will approach the court again in circumstances where he claims that he has successfully completed what Professor Y has indicated he should do.  In that event, consideration may then again need to be given, as to whether there is an assessment on the threshold question and the mother’s mental health might again play a part in that assessment. 

10. In the event that this happens, it is appropriate for me, if I am reasonably available, to deal with any application filed in the future.  I will make an order to that effect. 

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  26 February 2010