Marsden & Winch 2009 FamCAFC 152

A judge ordered that a 4 year old girl live with her mother and have restricted contact with her father.  The father appealed.

The trial judge heard evidence that the father had been convicted of indecent exposure and there were a number of reports of sexual offences of a paraphilia nature.  The judge found that the father had used his daughter in a totally inappropriate way to try to assist him to reconcile his relationship with his ex-wife.

The father argued that the sexual incidents had occurred 7 years earlier, and there had been an absence of further offending in the previous two years.  The father submitted a report from an agency contact centre saying that he was a capable father.  The father reported that he had seen an assessing psychologist who could provide a report if requested.   The judge ruled that there was not sufficient changed circumstances for the father to pass the threshold test, and the judge did not re-open the case for further evidence.  The father appealed.

The appeal court found that the judge denied the father procedural fairness by not allowing the father to present a report by the psychologist as evidence of changed circumstances.  The appeal was allowed.