Federal Circuit and Family Court of Australia
(DIVISION 1)
Crowley & Picton [2022] FedCFamC1F 459
File number(s): WOC 1073 of 2019 Judgment of: SCHONELL J Date of judgment: 30 June 2022 Catchwords: FAMILY LAW – CHILDREN – Where final orders had been made in 2017 for the child to have no contact with the father – Where the paternal grandmother sought orders for time with the child – Where the mother sought a dismissal of the paternal grandmother’s application – Where the paternal grandmother failed to comply with Court orders and directions – Where the paternal grandmother failed to appear on two occasions despite having notice that if she did not appear on the second occasion the matter would proceed on an undefended basis – Paternal grandmother’s application for time with the child dismissed – Where the mother also sought to restrain the paternal grandmother from approaching or contacting the child – Where there is a high degree of conflict between the paternal grandmother and mother – Where there is an unacceptable risk that contact with the paternal grandmother would result in the child being exposed to harm – Restraint orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68 , 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.25 10.26, 10.27
Cases cited: Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16
Picton & Crowley [2022] FedCFamC1F 69
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 10 June 2022 Place: Sydney The Applicant: No appearance Solicitor for the Respondent: Venus & Smart Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
WOC 1073 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS Q CROWLEY
Applicant
AND: MS PICTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed 23 September 2019 is dismissed.
2.The applicant paternal grandmother Ms Q Crowley spend no time with the child X (“the child”) born in 2009.
3.Ms Q Crowley be restrained from approaching or contacting the child or the respondent mother Ms Picton.
4.Ms Q Crowley be restrained from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons,…
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- Case
- [2022] FedCFamC1F 459
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CaseChat Overview and Summary
The matter before the Family Court of Australia was an application by the paternal grandmother, Ms Crowley, seeking orders for time with her grandson, X, born in 2009. The mother, Ms Picton, opposed the application and sought a dismissal. The application was made pursuant to the Family Law Act 1975 and the Family Law Rules 2004. The legal issues before the Court were whether the paternal grandmother should be granted time with the child and, if so, what conditions should be attached to such an order. The Court also had to determine whether the paternal grandmother should be restrained from approaching or contacting the child or the mother.
The Court found that the paternal grandmother had failed to comply with Court orders and directions, including failing to appear on two occasions despite having notice that if she did not appear on the second occasion the matter would proceed on an undefended basis. The Court also found that there was a high degree of conflict between the paternal grandmother and the mother and that there was an unacceptable risk that contact with the paternal grandmother would result in the child being exposed to harm. The Court was satisfied that the child had expressed a clear wish not to see his paternal grandmother. The Court dismissed the paternal grandmother's application for time with the child and made orders restraining the paternal grandmother from approaching or contacting the child or the mother. The Court also made orders restraining the paternal grandmother from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.
The Court's orders were made in the best interests of the child, taking into account the child's wishes and the risk of harm if contact with the paternal grandmother were to occur. The Court found that the paternal grandmother's conduct had contributed to the conflict between the parties and that the child's welfare would be best served by the restraining orders. The Court noted that the paternal grandmother had a right to apply for review of the orders but that the orders were necessary to protect the child from harm. The Court also noted that the father had previously been restrained from coming into contact with the mother or the child and that the paternal grandmother's conduct had exacerbated the conflict between the parties. The Court found that the paternal grandmother's application for time with the child should be dismissed and that the restraining orders were necessary to protect the child from harm.
The Court found that the paternal grandmother had failed to comply with Court orders and directions, including failing to appear on two occasions despite having notice that if she did not appear on the second occasion the matter would proceed on an undefended basis. The Court also found that there was a high degree of conflict between the paternal grandmother and the mother and that there was an unacceptable risk that contact with the paternal grandmother would result in the child being exposed to harm. The Court was satisfied that the child had expressed a clear wish not to see his paternal grandmother. The Court dismissed the paternal grandmother's application for time with the child and made orders restraining the paternal grandmother from approaching or contacting the child or the mother. The Court also made orders restraining the paternal grandmother from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.
The Court's orders were made in the best interests of the child, taking into account the child's wishes and the risk of harm if contact with the paternal grandmother were to occur. The Court found that the paternal grandmother's conduct had contributed to the conflict between the parties and that the child's welfare would be best served by the restraining orders. The Court noted that the paternal grandmother had a right to apply for review of the orders but that the orders were necessary to protect the child from harm. The Court also noted that the father had previously been restrained from coming into contact with the mother or the child and that the paternal grandmother's conduct had exacerbated the conflict between the parties. The Court found that the paternal grandmother's application for time with the child should be dismissed and that the restraining orders were necessary to protect the child from harm.
Orders
Orders of the court
WOC 1073 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS Q CROWLEY
Applicant
AND:
MS PICTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1. The Initiating Application filed 23 September 2019 is dismissed.
2. The applicant paternal grandmother Ms Q Crowley spend no time with the child X (“the child”) born in 2009.
3. Ms Q Crowley be restrained from approaching or contacting the child or the respondent mother Ms Picton.
4. Ms Q Crowley be restrained from approaching any school attended by the child from time to time or any place at which the child attends a regular activity.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
For the purposes of the application, I have read the following documents: (1)Initiating Application of paternal grandmother filed 23 September 2019;(2)Affidavit of paternal grandmother filed 23 April 2021;(3)Amended Response to Initiating Application filed 27 May 2022;(4)Affidavit of mother filed 10 January 2020;(5)Child Inclusive Conference Memorandum dated 19 August 2021;(6)Judgment of McClelland DCJ dated 17 February 2022; (7)Case Outline of mother; and (8)Case Outline of the ICL.Background The mother says proceedings between her and X’s father commenced in or about 2013. Those proceedings were finalised by Rees J on 12 October 2017. Notwithstanding her Honour’s judgment, further litigation ensued between the parties that was finally determined by McClelland DCJ in a judgment delivered on 17 February 2022, where his Honour dismissed a Review Application filed by the father against orders made by a senior registrar that dismissed all of the father’s applications for parenting orders. The following history of the litigation is extracted from McClelland DCJ’s judgment in Picton & Crowley [2022] FedCFamC1F 69, which records as follows: 3.The relevant final orders were made by Rees J on 12 October 2017. By way of summary, her Honour found that the numerous complaints made by the father and paternal grandmother regarding the welfare of the child whilst in the care of the mother were not substantiated. While the parenting capacity of both parents was a concern, her Honour ultimately made orders for the child to live with the mother and spend no time with the father. Orders were also made restraining the father from coming into contact with the mother or the child. The decision explains that a significant concern of the Court was the prospect of the child being adversely impacted by the entrenched conflict between the parents.…6.As a related issue, I have found that the conduct of the father in the period subsequent to her Honour’s orders have, in my view, confirmed the wisdom and foresight of Rees J’s analysis of the parties’ dispute. Having regard to the conduct of the father in the period since the final orders were made, in the exercise of its discretion, the Court should reject the father’s application for the re-opening of the final parenting orders made on 12 October 2017. Permitting the litigation to be re-opened would not be in the child’s best interests.…25.The judgment of Rees J was subject to an appeal, with the decision of the Full Court being delivered on 30 May 2018. The appeal was dismissed. 26.Significantly, the Full Court in determining the appeal rejected an application by the father to adduce a transcription of JIRT interviews with the child. It was determined that the evidence, if it had been called during the trial, would not have changed the outcome of the proceedings. The father, in these proceedings, renewed his application to rely upon recordings of those interviews. The father’s application in that respect was dismissed for reasons provided in transcript dated 23 November 2021.Relevant events in the period subsequent to the judgment of Rees J27.Following the Full Court decision, events have occurred that are relevant to this judgment.28.On 23 August 2018, Mr O, the adult son of the parties and older brother of the child filed a separate application in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend alternative weekends and school holidays with him. At the time, Mr O was living with the father.29.On 3 October 2018, Mr O’s application was transferred to the Family Court of Australia (as it was then known).30.On 5 December 2018, police attended the mother’s home to undertake a welfare check after a report of domestic violence and drug use. No action was taken consequent to the police attendance.31.On 25 December 2018, the police were called to the mother’s residence as a result of a dispute that arose in circumstances where the paternal grandmother attempted to deliver a Christmas present to the child. No police action was taken in respect to that incident.32.In 2019, the paternal grandmother visited the child while he was in the playground at school. The school reported that this caused him distress.33.In late 2018 or early 2019, the father commenced legal proceedings against the child’s general practitioner, Dr YY, alleging malpractice on the part of the doctor.34.In 2019, the father engaged lawyers to make a complaint to the Commissioner of Police in respect to police failing to further investigate the father’s allegations that the mother had caused an injury to the child’s neck.35.On 16 January 2019, the mother, the father, and Mr O attended a court-based Child and Family Meeting with Family Consultant ZZ.36.On 22 February 2019, during the course of an interim proceeding before the acting Senior Registrar, the solicitor for Mr O discontinued the proceedings commenced by him.37.At some stage subsequent to July 2018, Mr O’s gun licence was revoked, however there is insufficient evidence before the Court to determine the circumstances in which that occurred.38.On 13 June 2019, the child was awarded Victims Compensation in respect to a neck injury which it was found that he had sustained. 39.On 23 September 2019, the paternal grandmother commenced separate proceedings in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend time with the paternal grandmother on alternate weekends.40.On 4 November 2019, the application by the paternal grandmother was transferred to the Family Court of Australia (as it was then known).41.On 6 November 2019, the father filed his current application and supporting affidavit seeking orders that the child spend time with him, on the grounds that there had been a significant changes in circumstances since the final orders of Rees J in October 2017.42.On 9 January 2020, the mother filed her response to the application for final orders and a supporting affidavit. That application was for the father’s application for both final and interim parenting orders to be dismissed.43.On 10 August 2020, the father and Mr O attended AB Town Police Station and provided witness statements alleging that the child had been assaulted. No action was taken by the police.44.On 19 October 2020, Ms AC sent a letter to the Law Enforcement Complaint Commission on behalf of the father.45.On 2 November 2020, the matter was listed before a Senior Registrar, at which time it was adjourned until 10 December 2020. The matter was subsequently listed on that date and adjourned for a further occasion until 6 April 2021.46.On 6 April 2021, consequent upon the Senior Registrar’s appointment as a judge of the Federal Circuit Court, the matter was heard by another senior registrar who adjourned the matter until 6 June 2021. That date was, however, subsequently vacated.47.On 20 April 2021, the paternal grandmother filed a Notice of Child Abuse, Family Violence or Risk.48.On 6 May 2021, the paternal grandmother filed an Application in a Case seeking interim parenting orders.49.On 27 July 2021, the child attended a Child Inclusive Conference with a family consultant, during the course of which the child advised the family consultant that he did not wish to see his father.50.On 19 August 2021, the father filed an Amended Application in a Case and affidavit in support.51.On 26 August 2021, the interim hearing before the senior registrar took place and orders were made dismissing all extant applications, including the father’s application for final and interim orders. 52.On 10 September 2021, the father filed his application for review of the senior registrar’s orders.(Footnote omitted)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The following history of the litigation is extracted from McClelland DCJ’s judgment in Picton & Crowley [2022] FedCFamC1F 69, which records as follows: 3.The relevant final orders were made by Rees J on 12 October 2017. By way of summary, her Honour found that the numerous complaints made by the father and paternal grandmother regarding the welfare of the child whilst in the care of the mother were not substantiated. While the parenting capacity of both parents was a concern, her Honour ultimately made orders for the child to live with the mother and spend no time with the father. Orders were also made restraining the father from coming into contact with the mother or the child. The decision explains that a significant concern of the Court was the prospect of the child being adversely impacted by the entrenched conflict between the parents.…6.As a related issue, I have found that the conduct of the father in the period subsequent to her Honour’s orders have, in my view, confirmed the wisdom and foresight of Rees J’s analysis of the parties’ dispute. Having regard to the conduct of the father in the period since the final orders were made, in the exercise of its discretion, the Court should reject the father’s application for the re-opening of the final parenting orders made on 12 October 2017. Permitting the litigation to be re-opened would not be in the child’s best interests.…25.The judgment of Rees J was subject to an appeal, with the decision of the Full Court being delivered on 30 May 2018. The appeal was dismissed. 26.Significantly, the Full Court in determining the appeal rejected an application by the father to adduce a transcription of JIRT interviews with the child. It was determined that the evidence, if it had been called during the trial, would not have changed the outcome of the proceedings. The father, in these proceedings, renewed his application to rely upon recordings of those interviews. The father’s application in that respect was dismissed for reasons provided in transcript dated 23 November 2021.Relevant events in the period subsequent to the judgment of Rees J27.Following the Full Court decision, events have occurred that are relevant to this judgment.28.On 23 August 2018, Mr O, the adult son of the parties and older brother of the child filed a separate application in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend alternative weekends and school holidays with him. At the time, Mr O was living with the father.29.On 3 October 2018, Mr O’s application was transferred to the Family Court of Australia (as it was then known).30.On 5 December 2018, police attended the mother’s home to undertake a welfare check after a report of domestic violence and drug use. No action was taken consequent to the police attendance.31.On 25 December 2018, the police were called to the mother’s residence as a result of a dispute that arose in circumstances where the paternal grandmother attempted to deliver a Christmas present to the child. No police action was taken in respect to that incident.32.In 2019, the paternal grandmother visited the child while he was in the playground at school. The school reported that this caused him distress.33.In late 2018 or early 2019, the father commenced legal proceedings against the child’s general practitioner, Dr YY, alleging malpractice on the part of the doctor.34.In 2019, the father engaged lawyers to make a complaint to the Commissioner of Police in respect to police failing to further investigate the father’s allegations that the mother had caused an injury to the child’s neck.35.On 16 January 2019, the mother, the father, and Mr O attended a court-based Child and Family Meeting with Family Consultant ZZ.36.On 22 February 2019, during the course of an interim proceeding before the acting Senior Registrar, the solicitor for Mr O discontinued the proceedings commenced by him.37.At some stage subsequent to July 2018, Mr O’s gun licence was revoked, however there is insufficient evidence before the Court to determine the circumstances in which that occurred.38.On 13 June 2019, the child was awarded Victims Compensation in respect to a neck injury which it was found that he had sustained. 39.On 23 September 2019, the paternal grandmother commenced separate proceedings in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend time with the paternal grandmother on alternate weekends.40.On 4 November 2019, the application by the paternal grandmother was transferred to the Family Court of Australia (as it was then known).41.On 6 November 2019, the father filed his current application and supporting affidavit seeking orders that the child spend time with him, on the grounds that there had been a significant changes in circumstances since the final orders of Rees J in October 2017.42.On 9 January 2020, the mother filed her response to the application for final orders and a supporting affidavit. That application was for the father’s application for both final and interim parenting orders to be dismissed.43.On 10 August 2020, the father and Mr O attended AB Town Police Station and provided witness statements alleging that the child had been assaulted. No action was taken by the police.44.On 19 October 2020, Ms AC sent a letter to the Law Enforcement Complaint Commission on behalf of the father.45.On 2 November 2020, the matter was listed before a Senior Registrar, at which time it was adjourned until 10 December 2020. The matter was subsequently listed on that date and adjourned for a further occasion until 6 April 2021.46.On 6 April 2021, consequent upon the Senior Registrar’s appointment as a judge of the Federal Circuit Court, the matter was heard by another senior registrar who adjourned the matter until 6 June 2021. That date was, however, subsequently vacated.47.On 20 April 2021, the paternal grandmother filed a Notice of Child Abuse, Family Violence or Risk.48.On 6 May 2021, the paternal grandmother filed an Application in a Case seeking interim parenting orders.49.On 27 July 2021, the child attended a Child Inclusive Conference with a family consultant, during the course of which the child advised the family consultant that he did not wish to see his father.50.On 19 August 2021, the father filed an Amended Application in a Case and affidavit in support.51.On 26 August 2021, the interim hearing before the senior registrar took place and orders were made dismissing all extant applications, including the father’s application for final and interim orders. 52.On 10 September 2021, the father filed his application for review of the senior registrar’s orders.(Footnote omitted)
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.