Crook and Crook

[2007] FamCA 801

FAMILY COURT OF AUSTRALIA

CROOK & CROOK [2007] FamCA 801

FAMILY LAW – Children – Parenting – Whether fits criteria for Magellan list

Family Law Act 1975 (Cth)

HUSBAND: Mr Crook

WIFE: Mrs Crook

FILE NUMBER: MLC 6970 of 2007

DATE DELIVERED: 7 August, 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J.

HEARING DATE: 7 August, 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rosetta Traficante

SOLICITOR FOR THE RESPONDENT: Graham Legal

Orders

1. That this case be removed from the Magellan list of cases and the applications for final parenting orders be referred to the trial notice pool for giving of trial notice directions as soon as practicable after 1 February, 2008.

1. That in the event either party wishes to vary the interim parenting orders made on 26 July, 2007 he or she give notice in writing to the other parties and apply to the list registrar for the fixing of a date in the registrar’s duty list. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6970  of 2007

Mr Crook

Husband

And

Mrs Crook

Wife

REASONS FOR JUDGMENT

1. On 26 July, 2007 Watt J. made orders in respect of the parties’ two children, T, born in August, 1998 and E, born in September, 2003.  Until further order the children are to live with the husband from 5:30 pm. Wednesday until 10:30 am. Sunday in each alternate week, and from 5:30 pm. Wednesday until 6:30 pm. Saturday in each other alternate week.  For the balance of the time the children are to live with the wife.  Each party, until further order, is to have sole use and occupation to the exclusion of the other of the former matrimonial home during periods the children are living with him or her. 

2. His Honour made a number of orders arising from a form 4 filed by the wife on 18 July, 2007, which might routinely be called “Magellan orders”.  Magellan is the title of the list of cases in this Court which involve allegations of significant physical or sexual abuse of children.  It was developed to better manage disputes involving these serious allegations; cases are judge-managed to ensure that they, which are resource intensive and involve some of the most vulnerable children, are dealt with as effectively and efficiently as possible.  At the heart of the program is a swift and co-ordinated response to allegations of child abuse;  police, State and Territory child protection authorities and other government agencies involved with investigating and dealing with allegations of child abuse actively co-operate with the Court, with the aim of an integrated response and speedier outcomes.

3. The Magellan list is reserved for cases of significant physical or sexual abuse of children.  There is no doubt that physical or sexual abuse of a child’s parent (whether or not the child is physically exposed to it) can itself be a form of abuse of children, the emotional damage being potentially far reaching.  Many such cases are heard by this Court but not in the Magellan list. 

4. In this case the wife filed a Notice of Child Abuse or Family Violence on 18 July, 2007 in which she alleged that, on 3 July, 2007, the husband violently grabbed T by the arm and pulled her, and did not stop until the wife intervened.  The notice records that the assault left bruises on T’s arm.  In terms of risk of abuse the form noted that as T and E were currently living with the husband, there was a risk he would continue to act in a violent manner towards them.

5. Were the allegations contained in the form 4 proven they would no doubt form an important part of the evidence upon which a judge determined the final parenting orders to make.  That may be done in the future.  However, the interim residence orders made by Watt J. on 26 July, 2007 must be premised on a finding that there is not an unacceptable risk that the behaviour alleged by the mother will occur while the children are with him;  it is inconceivable that an order would be made for the children to spend as much time as that with the husband if the judge had been concerned about their physical safety in an unsupervised environment. 

6. Usually, a case which a judge finds should be considered for inclusion in the Magellan list is referred to me or the Magellan registrar for assessment.  I am the judge with responsibility for the Magellan list.  While there are no doubt serious issues to be tried between the husband and wife, I am not satisfied that the allegations made by the wife (of physical abuse of T and family violence directed at her) bring this case within the guidelines for inclusion in the Magellan list. 

7. I am making this decision now rather than involving the parties in the expense of another Magellan listing on 12 October, 2007.  That date is vacated. 

8. I make it clear that the form 4 will be investigated by the Department of Human Services in the usual way.  On 27 July, 2007 DHS advised the Court of receipt by it of the form 4, and that it then required a further three weeks to investigate the allegations. 

9. I am concerned that the expectations of the parties, after the hearing on 26 July, 2007, would have been that the case was likely to move along the case management pathway more swiftly than cases which are not transferred to the Magellan list.  In those circumstances I propose to direct that the case be given a trial notice listing in or about February 2008, which is to give the matter significant priority over other cases in which applications were filed in June 2007.

10. If a party wishes to make any other interim application, he or she should contact the list registrar, who will arrange for a date to be fixed in the registrar’s duty list and give directions for the filing of material. 

I certify  that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CROOK & CROOK