Marvin and Blink

[2017] FCCA 3277

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARVIN & BLINK [2017] FCCA 3277

Catchwords:
FAMILY LAW – Parenting orders – where final orders made in the Family Court of Australia in late 2015 – where those orders do not provide for time with father who has been found guilty of child assault and child pornography offences – where father says he has addressed all issues and now seeks time with the child – where the Court finds his application premature.

Legislation:

Family Law Act 1975

Rice v Asplund (1979) FLC 90-725

Applicant: MR MARVIN

Respondent: MS BLINK

File Number: MLC 3225 of 2017

Judgment of: Judge Small

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Melbourne

Delivered on: 8 December 2017

REPRESENTATION

Counsel for the Applicant: Mr McDermott

Solicitors for the Applicant: James McDermott Barrister & Solicitor

Counsel for the Respondent: Ms Mansfield

Solicitors for the Respondent: Wightons Lawyers

ORDERS

1. The Initiating Application filed 4 April 2017 be dismissed pursuant to the Rule in Rice v Asplund (1979) FLC 90-725.

2. The Father be at liberty to file an Initiating Application from 1 February 2019 provided he files Affidavits in Support from current treating therapists in relation to sexual offending, general mental health issues and drug and alcohol abuse.

3. All extant applications be otherwise dismissed and the proceedings be removed from the pending cases list.

AND THE COURT NOTES:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3225 of 2017

MR MARVIN

Applicant

And

MS BLINK

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Marvin & Blink comes before me today for interim hearing.  The situation is that final orders were made in this matter in the Family Court of Australia 23 November 2015.  Those proceedings had begun in this Court and were transferred to the Family Court of Australia after it became clear that the father had been charged with assaulting a child and certain child pornography offences, those two things not being related either in content or - specifically in time although they were fairly close together.

3. The proceedings in the Family Court had the benefit of a family report from Ms C, one of the family consultants employed by the Court, and a report from Dr S who is a forensic psychologist who does many assessments for this Court.  Dr S, in particular, made several recommendations.  I think I just need for the sake of clarity to go back over what these allegations are.

4. The parties separated in 2012.  They had lived together since 2005, and they have had two children.  And they, of course, are the subject of these proceedings.  They are X who was born on (omitted) 2008 and Y who was born on (omitted) 2011. 

5. Since the last orders were made – and I note that those orders were made in the Family Court by consent with the reason the matter was sent to the Family Court being that, in mid-2013 the father was charged with a serious assault on the two year old child of his then partner.

6. The child ended up in hospital.  The father was charged with assault occasioning grievous bodily harm, and he was also charged at around the same time with child pornography offences arising from his participation in a chatroom in which he had apparently made some comments that indicated that he had sexual interest in pubescent girls, if I can put it like that, and, in particular, that the fantasy that he was describing on the chatroom related to a fictional 14 year old daughter of his.

7. He was placed on the Sex Offenders Register as a result of that.  He is still on that register, I understand, and he was placed on it for eight years.

8. Only four of those years have elapsed.  So he is halfway through that.  The orders that were made provided for no time to be spent between the father and the two girls, but it did provide for cards and letters and items like that to be sent to them.  And there is no evidence before the Court today as to whether the mother has ever passed any of that on to the children, but nevertheless the father has sent things to X and Y in that form.

9. So all of that happened in late November 2015. 

10. In April of 2017, some 16 months later, the father filed these proceedings in this Court seeking time with X and Y.  His evidence at the time of filing was that he had been engaging in counselling with a forensic psychologist and also with a specialist psychologist in the area of personality disorders.  That was a recommendation of Dr S, and I think Dr S also said recommended drug and alcohol counselling because all of these issues arise from Mr Marvin’s – what can only be called an addiction to alcohol.

11. He was heavily intoxicated when he committed both crimes and says he does not really remember what he said in the chatroom, and he does not have any memory, he says, of assaulting young A.  I cannot make any comment about that.  I do not know whether he actually remembers or whether he has blocked it out or whether he was so drunk that he did not know what he was doing.  But he was convicted and pled guilty, I understand, to both of those offences. 

12. That meant, unfortunately for this Court, that none of those things were ever tested in court.  None of those allegations were ever tested in court.

13. And he now says that the detail of them is different.  He says, “Well, the child didn’t suffer any broken bones”, referring to the child that he assaulted.  He may have got a black eye, but he seems to diminish the damage done to that little boy in his affidavit material. 

14. And he also says in his affidavit material that he does not remember what he said, on the night in question when he was in the chatroom.

15. Since the orders, he has been seeing two therapists.  Since January of 2016 which is only a couple of months after the hearing and noting that that encompassed the Christmas break – so it cannot have been easy to immediately find a therapist – but since January of 2016, he has been seeing a psychologist called Ms M.

16. Ms M is an expert in personality disorder treatment.  Dr S in his report in 2015 said that he believed that Mr Marvin suffered from borderline personality disorder.  Ms M says that she does not think that is necessarily true.  She diagnosed Mr Marvin with a dependent personality disorder with borderline traits.  She says that he scored the maximum possible on dependent personality disorder factors but only four of eight, I think, of the borderline personality disorders.

17. Nevertheless, she has been seeing him since January of 2016, but according to her report, which I note was filed yesterday at 3.37 pm, she says that he has been seen seven times for therapy over that period.

18. That is not intensive therapy as far as I am concerned.  Seven times in 23 months is or 22 months while it might be monitoring therapy, it is not intensive therapy, but I am heartened, can I say, by what she does say.

19. She says that he is practising mindfulness meditation, that he has engaged in all of his treatment well.  He has completed all the required assessments.  She says that after the assessment period – and she does not say how long that was – there were only seven occasions with Mr Marvin missing a couple of scheduled appointments due to study or illness.  I have no problem with Ms M’s qualifications.  Her curriculum vitae that is attached shows a long history of experience in this area.

20. I am told that Ms M and Mr J, who I will get onto in a moment, have had the family report in the previous proceedings provided to them.  The family report is actually what I would call quite cautious in its evaluation of Mr Marvin, saying that, “well, if he is telling the truth, then this, but if he is not, then that”, and saying that Ms C thought that it was possible that he was quite able to say things that maybe he believed but were not necessarily the facts and there would need to be some intensive therapy of 12 to 24 months, I think she said in relation to his alcohol use.

21. There is no evidence that he has sought any specific treatment for his alcohol abuse which, as I said, appeared to be at the root of all this, but he has had those seven sessions of therapy plus some unknown sessions of assessment with Ms M, and he has also had since February of 2016 – on average, monthly sessions with Mr J – Mr J who is a psychologist at (omitted) Psychology, and I note – and I think I can take judicial notice of the fact that (omitted) Psychology is part of the Department of Justice, I think, and is government funded certainly and is there for the very purpose of assisting Courts in relation to offenders and particularly sexual offenders.

22. Mr J says that he is aware of Mr Marvin’s forensic history and that he is seeking time with the two girls.  His report is actually quite short - it is only a page and a half - where he sets out the number of times he has seen Mr Marvin, which is 21 between 2 February 2016 and 29 November 2017, and, as I said, that is approximately monthly which was what was recommended by Dr S.  Mr J says that Mr Marvin’s presentation throughout counselling was one of remorse and shame regarding his previous offending behaviours.  That is consistent with what he told the family reporter in the previous proceedings, and the issue before me today is whether what Mr Marvin has done in the now two years since the previous orders were made amounts to a significant change in circumstances such that the rule in Rice v Asplund ought not be applied.

23. The rule in Rice v Asplund, of course, is that once final orders are made, they should not be interfered with unless there has been a significant change in circumstances in the case, and the significant change, says Mr Marvin, is that he has engaged in this therapy.  Dr S said that the therapy should be at least monthly for at least three years but (as Mr McDermott for the father points out) he did not say that the father’s time with the children should be dependent on the completion of that time.

24. It was only 16 months after the previous orders were made that Mr Marvin has again sought orders from this Court, and my view is that that is a very encouraging start.  He is greatly to be commended for having stuck it out for that long.  It is no mean feat to go to a therapist every month specifically to talk about sexual offending.  That is not the action of someone who “does not get it”, if I can put it that way, but I am concerned that there has not been the three years.  There has only been 22 months.And while that is, as I said, a very good start, I do not think it is enough to allow the Court to make any orders in relation to the children now.

25. What I propose to do is this.  Ms Mansfield for the mother pointed out that all the things that Mr Marvin says now are things that he said two years ago.  That is true, but he actually has some backup for that now.  And the other issue is here we have two little girls who have had their father taken away from them through no fault of their own.  The responsibility for that lies squarely on the shoulders of their father, but we have these two little girls who are growing up without a father.  And that is not in their best interests as long as it can be done safely.

26. Now, the parties were in Court, I think, when I gave judgment in the previous case, and I went through all the section 60CC factors and the balance between the meaningful relationship with a parent and the need to keep children safe and how I need to keep the children safe as a primary, primary consideration, and my view at the moment is that the application as it stands now is premature.  But I would not want Mr Marvin to think that that meant never because I am not of the view that people do not change.  If I were of the view that people do not change, I should not be doing this job.

27. I think it is quite possible and particularly with long-term therapy, for people to change.  It is a shame there is no real corroborative evidence in relation to his alcohol consumption because he says that he has not had any alcohol since October 2015.  And if that is true, then that is fantastic. 

28. But he does not say he has had any drug and alcohol counselling.  His parents, who have been seeing the children weekly on average, have not filed any affidavit material, and I do not criticise them for that.  It must be a very difficult thing to contemplate, but nevertheless I do not have any independent evidence either from them or from his family or from his partner of nearly four years, I think, that that is the case, and that is a shame.

29. I do not think it would have been determinative, but that is the kind of evidence that the Court would need, I think.  So what I am going to do is this.  I am going to dismiss the father’s application under the rule in Rice v Asplund, but I am going to make an order that the father can file a new application any time from February 2019 – as long as he attaches to that Application or as long as he provides with that application reports from his treating therapists which would be updated reports from those that were provided today.

30. What Dr S envisaged was fairly consistent intensive therapy.  What I think is happening at the moment is that it is more a sort of monitoring monthly therapy, and, as Mr McDermott says, that may not be Mr Marvin’s fault.  It may be that that was what Mr J, who is a public servant, you know, bound to have concerns for the public purse – it may be that that is his decision.  So what I am saying is “not yet”, but I am not saying “never”.  And I would never say that because I think it is really important – and one thing I would say to Mr Marvin is this and also to Ms Blink.  You are both going to be these little girls’ parents for the rest of your lives.

31. This is not just about what happens in the next six months or the next two years or even the next 10 years because you are going to be their parents way beyond that, and if there is to be a relationship between the girls and their father, we must make sure that it has a very, very firm foundation in the circumstances of this case.  I am impressed with the steps Mr Marvin has taken in order to address his problems.  They have been pretty serious problems, and he seems to understand that.

32. Well, he has now had three and a half years of not seeing his children because of them.  So I think he fully understands the implications of that.  And even two years ago, Y did not really remember him at all, and X did and said she missed him, but the family reporter was saying she was not quite sure whether that was a sort of fantasy father or the father figure that she missed.  She was not sure, but X certainly remembered seeing him at a contact centre and so did Y for that matter.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Small.

Date: 21 December 2017