Picton and Crowley - [2017] FamCA 811

FAMILY COURT OF AUSTRALIA

PICTON & CROWLEY

[2017] FamCA 811

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where there are extensive concerns raised by the father and paternal grandmother of the child’s safety in the mother’s care – Where the father and paternal grandmother have made numerous complaints to FACS, police and doctors concerning the welfare of the child – Where no allegations have been substantiated – Where there is significant and entrenched conflict between the parents – Consideration of s 60CC factors – Where the parenting capacity of both parents is a concern – Where there cannot be a shared care arrangement due to the conflict between the parents – Orders are made for the child to live with the mother and spend no time with the father – Orders made restraining the father from coming into contact with the mother or child.

Family Law Act 1975 (Cth) s 60CC(3)
APPLICANT:	Ms Picton

RESPONDENT:

Mr Crowley

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

WOC

393

2013

DATE DELIVERED:

12 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11, 12, 13 and 14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

McNamara & Associates

SOLICITOR FOR THE RESPONDENT:	Swan Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

ORDERS

IT IS ORDERED

That the child X (the child) born … 2009 live with the mother.
That the mother have sole parental responsibility for the child.
That the father have no contact with the child.
That the father be restrained from approaching or contacting the child or the mother.
That the father be restrained from approaching any school attended by the child from time to time or any place at which the child is attending any activity.
That the father be permitted to cause a third party to deliver, or to post, gifts and cards to the child on his birthday and at Christmas.
That the mother do all acts required to ensure that the name of Mr Crowley be recorded on the child’s birth certificate as the child’s father and to provide a copy of the amended certificate to the father.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Picton & Crowley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Picton and Crowley

Details

AGLC: Picton and Crowley [2017] FamCA 811
Case: [2017] FamCA 811
Decision Date: 12 October 2017

CaseChat Overview and Summary

In the matter of *Picton and Crowley*, Rees J of the Family Court of Australia determined a dispute concerning the living arrangements and contact arrangements for a child born in 2009. The proceedings involved an application by the mother, seeking orders for the child to live with her, for her to have sole parental responsibility, and for the father to have no contact with the child.

The primary legal issues before the Court were whether the child should live with the mother, whether the mother should have sole parental responsibility, and the extent, if any, of contact the father should have with the child. The Court was also required to consider the appropriateness of restraining orders against the father and the recording of his name on the child's birth certificate.

Rees J ordered that the child live with the mother and that the mother have sole parental responsibility. The Court further ordered that the father have no contact with the child and imposed restraining orders preventing the father from approaching or contacting the child or the mother, and from attending any school or activity location of the child. However, the father was permitted to send gifts and cards to the child via a third party on the child's birthday and at Christmas. The mother was also ordered to ensure the father's name was recorded on the child's birth certificate and to provide a copy to the father. The orders were made pursuant to Sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth), with a Fact Sheet detailing obligations, consequences of contravention, and assistance resources attached to and incorporated into the orders.

Orders

Orders of the court

IT IS ORDERED

That the child X (the child) born … 2009 live with the mother.

That the mother have sole parental responsibility for the child.

That the father have no contact with the child.

That the father be restrained from approaching or contacting the child or the mother.

That the father be restrained from approaching any school attended by the child from time to time or any place at which the child is attending any activity.

That the father be permitted to cause a third party to deliver, or to post, gifts and cards to the child on his birthday and at Christmas.

That the mother do all acts required to ensure that the name of Mr Crowley be recorded on the child’s birth certificate as the child’s father and to provide a copy of the amended certificate to the father.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.