Merritt and Darmody

[2013] FCCA 2230

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRITT & DARMODY [2013] FCCA 2230

Catchwords:
FAMILY LAW – Whether application should be dismissed on Rice & Asplund principle – whether change of circumstances shown – whether father should be permitted to make fresh application without leave.

Legislation:  

Family Law Act 1975 (Cth), ss.65DA(2), 62B, 117

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Rice & Asplund (1979) FLC 90 725

Applicant: MR DARMODY

Respondent: MS MERRITT

File Number: MLC 3527 of 2011

Judgment of: Judge Phipps

Hearing date: 18 November 2013

Date of Last Submission: 18 November 2013

Delivered at: Dandenong

Delivered on: 18 November 2013

REPRESENTATION

The Applicant:  Appearing on his own behalf

Counsel for the Respondent: Mr Smith

Solicitors for the Respondent: Trapski Family Law

Counsel for the Independent Children’s Lawyer: Ms Agresta

Solicitors for the Independent        

Children’s Lawyer:

Glezer Lanteri & Associates

ORDERS

1. The application filed on 15 August 2013 is dismissed. 

2. The applicant pay the respondent’s costs fixed at $3,435.

3. The applicant father not commence any further application under the Family Law Act 1975 (Cth) for parenting orders concerning the child, X born (omitted) 2008 without leave of a court having jurisdiction under the Act.

4. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 Merritt & Darmody is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

MLC 3527 of 2011

MR DARMODY

Applicant

And

MS MERRITT

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The respondent applies to have this application dismissed without any further hearing, based on the Rice & Asplund principle.  That is a two part test.  The Court has to look to see whether there has been a change of circumstances since the last order was made, and secondly, whether that change in circumstances is such as to justify re-opening the case.  The Court must look at past circumstances on which the previous order was based, what has altered, and if there has been an alteration whether a likely change justifies the detriment to the child in having another case.  The parties’ child is X, born (omitted) 2008.  Orders were made, by consent, on 30 May 2012 by Bender FM. 

2. Both the applicant father, Mr Darmody, and the respondent mother, Ms Merritt, were represented by counsel and an Independent Children’s Lawyer had been appointed and was represented by counsel.  The consent order made on 30 May 2012 is that the mother and father have equal shared parental responsibility for the child; that the child live with the mother; that the child spend time with the father, pending the parties’ admission into Berry Street, (omitted) or (omitted) Contact Centre each alternate Thursday from 1.00pm to 3.00pm, supervised by one of three named people.

3. Upon admission by the family into either or both child contact centres, the father have time with the child on a fortnightly basis at times and on dates nominated by the centre for such maximum period of time as either or both centres are able to facilitate; and upon the expiration of this fortnightly time the father spend time with the child as can facilitated by either contact centre on an ongoing basis.

4. In addition the order provided that the father spend time with the child on specific occasions, supervised by the maternal grandparents or either of them.  These are for a period of no more than two hours and at times to be agreed.  The days are the father’s birthday and the child’s birthday each year; Father’s Day each year and Christmas each year.  The father must text message the mother at least seven days prior to each occasion to make arrangements for the spend time periods.

5. There is provision for the father being at liberty to send gifts and cards on special occasions and provision for health information to be provided to the father, information about significant illnesses, information to authorise the father to receive copies of school reports and similar documents, a provision for each party to keep the other advised of where they live and telephone numbers and email addresses.  There is an order prohibiting denigration and discussing family law matters, and an order for a communications book.

6. The father filed this application on 15 August 2013.  The change he seeks is that he spend time with the child each alternate Saturday from 1.00pm to 3.00pm at (omitted) Contact Centre monitored by cameras and then he applies for two hours, supervised by the maternal grandparents, on his birthday, the child’s birthday, Father’s Day, Christmas Day and Boxing Day, communication by telephone once a week, the school reports as before, that he be entitled to attend school functions, that he be entitled to attend extracurricular activities,  provision of medical information, and a non-denigration clause.

7. He applies for an order that he undergo a psychiatric assessment with Dr A. 

8. The father’s material is the application and his affidavit filed on 15 August 2013 and a further affidavit filed on 15 November 2013.  The mother’s material is her response and affidavit filed on 6 November 2013.  The material available when the previous order was made on 30 May 2012 included a psycho-sexual assessment by Dr S, who is a clinical and forensic psychologist.  A report by Dr D, a consultant psychiatrist, and a family report prepared by Ms J.  Copies of each of those documents are annexed to the mother’s affidavit.

9. These reports and the father’s affidavit show he has been convicted twice for possession of child pornography and that he is on the register of sex offenders.  He says, in his second affidavit of 15 November 2013, that he has five criminal charges outstanding.  He describes them as a defended hearing in relation to theft and trespass and a hearing in relation to alleged breaches of the requirements of being on the sex offenders register, that is, that he did not advise the change of his car registration, report three email addresses, and report his Facebook account.  He says he has pleaded guilty to those breaches, each of which occurred in 2011. 

10. The father has an acquired brain injury from an accident when he was an adult.  Dr S says this, in his report, commencing at paragraph 23: 

    Mr Darmody had a disturbed upbringing.  He was sexually abused at age 7.  It would appear that there was disturbance in his relationship with his parents.  He subsequently has had a variety of different difficulties within his life related to criminal activities, and there is diversity in his criminal activities.  He has undertaken a variety of assessments, previously due to child pornography charges and convictions in 2002 and 2007.  He has had other charges, including deception offences. 

11. As to risk, Dr S says this in paragraph 24:

    With respect to risk, there are several factors which make up risk issues.  Central risks in this case relate to the presence of past sexual deviation – him being a victim of childhood sexual abuse;  the presence of a personality disorder with antisocial features;  the presence of depressive symptoms in the past;  some past suicidality;  employment problems;  past non-sexual violent offence;  past supervision failure, and high density offences within the sexual domain.  Additionally, there is minimisation of the offences and lack of insight. 

12. Dr S refers to the acquired brain injury and says that neuro-psychological reports are essential.  In paragraph 26, he says:

    In summary, in my opinion, I would suggest that the risk of sexual offending is moderate. 

    And he then says:

    I consider it appropriate that supervision occur within the time spent between Mr Darmody and his child.

13. Dr D, the psychiatrist, at paragraph 57 of his report, says that Mr Darmody falls into the moderate-high risk category when assessed on the static 1999 coding rules.  He describes that “as a relatively robust predictor of future offending” and:

    Mr Darmody’s score places him in a category of people who would be considered more likely than other previously incarcerated male sexual offenders to re-offend.

    He goes on, in paragraph 58:

    …a supervening brain injury may increase an imputative risk. 

14. In paragraph 59, he says that, in summary, before there be any unsupervised access with his son, the father should undergo a course of specialised offence specific psychological treatment.  That is to acquire and demonstrate that he can employ strategies to curtail any compulsive pornography use and to ensure that he has a good understanding of how to be a positive role model for a son.  The family report, by Ms J, recommends supervised time.  Ms J refers to both Dr S’s report and Dr D’s report.

15. The father, in his material, says that time at the contact centre is no longer available and he says that time supervised by camera is.  There is nothing from the contact centre to say that camera is.  The father annexed the contact centre’s report which shows how the time has proceeded.  He complains about the previous reports.  He says he does not believe that Dr S’s report was accurate and he refers to a report by a psychologist, which was not available to either Dr S or Dr D. 

16. The mother objects to any change.  She says that there has been time, supervised by her parents, on the occasions set out in the order of 30 May 2012, which is the father’s birthday and the child’s birthday, Father’s Day and Christmas Day.  The father, in his affidavit, says that although time has occurred at about those times, it hasn’t occurred on those days.  There are a number of other matters that he refers to. 

17. The fact that the services of the contact centre are no longer available is not a change of circumstances.  That was contemplated by the order.  Paragraph 4(c) says that:  

    Upon the expiration of the fortnightly time provided for in paragraph 4(b), the father is to spend time with the child as can be facilitated by the child contact centre or either of them on an ongoing basis. 

18. If time cannot be facilitated by the child contact centre, it doesn’t take place pursuant to paragraph 4(c).  That leaves only the time in paragraph 4(d), which is the birthdays, Father’s Day and Christmas Day.  While that may seem a limited amount of time, it is what the order provides for.  It was what was agreed and provided for in the order of 30 May 2012.  The father’s complaint that Dr S was wrong and did not have access to a report, which may have made a difference to what he says, is not a change of circumstance.  That report, it would seem or the father alleges, existed at the time Dr S was making his assessment.  If Dr S did not have it, that was known at the time the order was made and was agreed to on 30 May 2012.  The same applies to Dr D. 

19. The father makes a number of complaints.  He complains that the mother has taken X to see a counsellor.  He claims that the mother must have been discussing matters with X because he says X asked him:  

    Are you going to jail? 

20. That is a complaint about breach of the order.  It is not a change of circumstance.  I can see no change of circumstance which would justify reopening this case.  What has happened was clearly contemplated at the time the order was made and provided for in the order.  Time would take place at the contact centre on a fortnightly basis as long as the named contact centres could provide it.  If they could not, then that fortnightly time would stop. 

21. There is no change of circumstances and there being no change of circumstances, there is no need to proceed to the second step of the process.  That is, if there is a change whether that change justifies reopening the case.  Even if a lapse of time can be seen as a change of circumstance and even if the father says that he has changed, he puts forward no expert evidence to suggest that the risks assessed as being present at the time the last order was made have changed.  Even if there is some small change, it is nothing like what is necessary to justify reopening the case and subjecting the child to the detriment of a new case.  The application is dismissed.

22. Two applications made by Mr Smith on behalf of the mother, the first is an application for costs. I deal with that first. Costs are dealt with in s.117 of the Family Law Act 1975 (Cth). Subparagraph (1) provides that, in proceedings under the Act, each party bears their own costs. Paragraph (2) provides that the court may make an order otherwise than that each party should bear their own costs. Paragraph (2A) sets out the matters to be taken into account in determining to make an order for costs.

23. The relevant ones here are first, the financial circumstances of the parties.  The father says he is employed as a (omitted), but he gives no more details than that.  The mother is employed as a (omitted) and is married and does not have Legal Aid, so she is paying her own costs.  The father has been completely unsuccessful and he has been completely unsuccessful on a Rice & Asplund application.  He has failed right at the threshold of the case.  In those circumstances, there should be an order for costs.

24. The amount which is applied for is $3,435, comprised opposing an application, a half day hearing with an advocacy loading, contained in paragraph 1 of the schedule of costs in the Federal Circuit Court Rules 2001 (Cth), a total of $3,435.

25. The other application made by the mother is for an order that the father not commence any fresh application without leave of the court.  I consider that is justified in this case.  A change of circumstance which would justify there being a new application is if the father can do what Dr D proposed.  That is, that he should undergo specialised offence-specific psychological treatment and acquire and demonstrate that he can employ strategies to curtail any compulsive pornography use.  Unless the father has done that, he would be making an application similar to this one which would almost certainly be doomed to failure.  The mother and the child should not be subjected to that.  The father would need to produce the necessary expert material which would justify the change.  I consider it very much in the child’s best interests that the father should show that the change in circumstance exists before he is permitted to commence a fresh application. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  13 January 2014