Marsden & Winch - [2012] FamCA 557

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH

[2012] FamCA 557

FAMILY LAW – CHILDREN – where an order for no time had been made – where the father had obtained a further forensic assessment in respect of his paraphilia and involved himself in further treatment consistent with that assessment – where there has been extensive litigation relating to the child since 2004 – where over the course of the litigation the mother has suffered significant issues with her mental health - where the circumstances had not significantly changed to lead to a different outcome – where a different outcome was not in the child’s best interests

FAMILY LAW – PRACTICE AND PROCEDURE – vexatious litigant - whether orders should be made under s 118 and s 114(3) FLA to limit further litigation in respect of the child – where current proceedings were found to be vexatious and orders limiting further litigation were made

Family Law Act 1975 (Cth)

Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481
Bennett & Bennett (2001) FLC 93-088
Darwin and Darwin [2008] FamCA 588
Lindberg & Scott [2009] FamCA 465
Sinclair-Small & Sinclair [2008] FamCA 1056

Rice & Asplund [1979] FLC 90-725

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAC

373

2008

DATE DELIVERED:

18 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Watts J

HEARING DATE:

2 – 3 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Ms Godtschalk

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Resource Centre

Orders

The mother’s application for summary dismissal of father’s Application filed on 8 July 2010 be dismissed.
The father’s Application filed on 8 July 2010 be dismissed.
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child S Marsden (“S”) born … March 2002.
The child live with her mother.
The child not spend time with her father.
The father may send to the child written communication in the form of letters or e-mails.
7.1.To enable this communication to occur the mother will provide and continue to provide to the father at all times a current address, which may be a PO Box, and current email address.
7.2.The mother may read any such communications before giving them to the child.
7.3.If the mother believes that the communications are intended more as communication with her rather than the child, or that the communications are otherwise inappropriate for the child to read, the mother may decline to give the communications to the child.
The father will provide and continue to provide to the mother at all times a current address at which he can receive communications from the mother about the child.
The mother will provide to the father written reports at not less than six monthly intervals about the child’s progress and about any major events which occur in the child’s life, including but not limited to, school reports, photographs and sporting achievements.
The mother will also communicate with the father in…

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 & Winch

Details

AGLC: Marsden & Winch [2012] FamCA 557
Case: [2012] FamCA 557
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the father against findings made by Faulks DCJ regarding the risk he posed to a child. The father sought to rely on earlier findings that he did not pose an unacceptable risk of sexually interfering with the child or the child's friends. He also contended that expert evidence concerning his risk of re-offending referred only to exhibitionistic behaviour towards adult women, not adolescent girls.

The central legal issues before the court were whether the father's risk of re-offending was confined to adult women, and whether his problematic exhibitionist behaviour predated a specific event in 1996. The court was required to assess the credibility of the father's assertions against expert reports and historical records.

The court found that the expert evidence did not confine the father's risk to adult women, with one expert agreeing that the risk pertained to adults and "unrelated teenage girls." Furthermore, the court found that the father's assertion that his exhibitionist behaviour began after 1996 was inconsistent with contemporaneous notes made by a psychologist in 1998, which indicated the behaviour commenced in his early twenties. Evidence from the child's mother also corroborated that the problematic behaviour predated the death of the father's mother in 1996. The court concluded that the father had minimised his history of behaviour.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The father relies on the findings by Faulks DCJ about the risk that he posed, specifically to the child, and Dr W’s evidence at the first hearing. At paragraphs 46 and 62 of his Reasons for Judgment dated 4 August 2006, Faulks DCJ found the father did not pose an unacceptable risk of sexually interfering with the child or that he would interfere with any of the child’s friends. The father submits that when Dr Z’s report references his risk of re-offending, it refers to a risk of further exhibitionistic behaviour in front of adult women, rather than adolescent girls. I am unable to accept that Dr Z confines the risk the father poses in that way or that in fact the risk that father poses can be confined in that way. In cross examination, Dr Z agreed the father’s risk would pertain to adults and “unrelated teenage girls”. As indicated below, Dr Z makes specific recommendations for public forums and adult supervision if the father is to be around the child’s friends. There was a focus at the hearing on whether the father had minimised the history of his previous behaviour to Dr Z and Mr V. The issue was whether the father’s inappropriate exhibitionist behaviour predated the death of his mother in 1996. The father insisted it did not. This was inconsistent with notes made by Ms K, a psychologist in Townsville, who the father attended upon for therapy in 1998. At the first consultation with Ms K on 3 April 1998, Ms K records in her handwritten notes, inter alia: “[The father] masturbates in inappropriate places in his home/apartment. He stands on a balcony of an apartment (on about the fifth floor) and is stimulated by the risk of exposure and fantasies that people walking by will become aroused or initiate contact……- Began exhibitionistic behaviour in early 20’s.” As is clear from Ms K’s records, the mother was present at the initial interview between Ms K and the father on 3 April 1998. The mother gave sworn evidence that she remembered that the father told Ms K that his exhibitionist problems began in either in his late adolescence or early 20’s (which would have been about 1974). More than that, the mother gave evidence of her own experience from earlier in her relationship, prior to the father’s mother’s death, which corroborates the notion that the father’s problematic exhibitionist behaviours predated the death of his mother. In a letter written to the father’s treating doctor dated 30 January 2004, Ms K reports:“2. Assessment of [the father’s] problem[The father’s] initial request for help followed an inquiry by the police who were following up a complaint with a person in the vicinity of his apartment had been seen masturbating on the balcony overlooking the beach. [The father] attended his first session with his wife. He stated that this behaviour had been a problem since his adolescence and that it was interfering with his psychological wellbeing and his marital relationship.” At one point the father’s absolute denial that he had problems prior to 1996 became more equivocal. During his cross examination he said:Early 20s? I have never exposed myself. I think she’s [Ms [K]] meaning I did masturbate at times, like in my home, looking at people, women walking by - and occasionally in my motor vehicle. But I never exposed myself to them. I never had any charges or convictions. That’s the stuff that’s a fact.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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