PICTON & CROWLEY

[2015] FCCA 2337

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICTON & CROWLEY [2015] FCCA 2337

Catchwords:
FAMILY LAW – Parenting – risk of harm – transfer to the Family Court – Magellan list.

Applicant: MS PICTON

Respondent: MR CROWLEY

File Number: WOC 393 of 2013

Judgment of: Judge Altobelli

Hearing date: 26 August 2015

Date of Last Submission: 26 August 2015

Delivered at: Wollongong

Delivered on: 26 August 2015

REPRESENTATION

Solicitors for the Applicant: Bailey Mullard Lawyers

The Respondent appeared in person.

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS

1. That the matter be transferred to the Family Court in Sydney for inclusion in the Magellan list.

2. The Court requests that, if possible, the Final Hearing of this matter be expedited.

NOTATIONS:

(A)There are two outstanding Applications in a Case filed by the Father on 22 June 2015 and 9 July 2015 that have not been dealt with.

(B)This matter has a very long litigation history.

(C)Multiple Interim Applications have been filed.

(D)There is every indication that a Final Hearing will require at least 5 days.

(E)The Father makes very serious allegations about the safety of his son whilst in the Mother’s care.

(F)Judge Kemp has made Interim Orders on 12 March 2015 recovering the child into the Mother’s care.

(G)Dr H has provided a Single Joint Expert’s Report dated 17 August 2015 that emphasises the need for the Court to make factual findings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 393 of 2013

MS PICTON

Applicant

And

MR CROWLEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Picton & Crowley is a long-running one, with a history back to 2013.  It involves a child, [X], born [omitted] 2009 – [X] is six and a half now.  The proposals that they each make to the Court on a final basis are diametrically opposed in the sense that each suggests that [X] live with them.

2. The case is characterised by very serious allegations that each make against the other, though, numerically, the Father seems to make more than the Mother and certainly does so with greater frequency.  The allegations made relate to things such as abuse – physical abuse of [X], psychological abuse and neglect.  There are issues about the consumption of alcohol by the Father and the Mother’s relationships which expose, according to the Father, [X] to a risk of harm.  There is a Single Joint Expert Report that was prepared by Dr H on 17 August and in these reasons I am going to incorporate reference to paragraphs 81, 82, 83, 86 and 87 as highlighting some of the difficulties in this case.

   81. [X] would benefit from authoritative parenting in a safe, calm, well-structured environment but is unlikely to receive this from either parent. The father and paternal grandmother engage in psychologically destructive tactics by encouraging [X]’s disrespect for his mother and by inappropriately involving him in adult disputes. The mother is not a highly effective parent but she does not seem to engage in alienating behaviour designed to exclude the father from the child’s life.  Given that both parents are deemed suboptimal the questions would seem to be:

   82. Which parent is potentially the most damaging as a principal caregiver?

   AND

   Does the stress involved in maintaining the child’s relationship with the secondary caregiver outweigh the benefits conferred by that attachment? 

   The Court will not be able to repair the identified parenting deficits by fiat. It also seems unlikely counselling to improve parental reflectiveness will ever work- and certainly not on any timescale meaningful in the life of a young child. Many children in our society receive suboptimal parenting but the state does not intervene unless they are physically harmed or seriously neglected. Therefore the Court might consider that until such time a FaCS investigation substantiates risk of harm for Ms Picton there is no justification for changing [X]’s residence. Unless immediate risk of physical harm is established for the father the Court may not be minded to extinguish contact, despite the obvious psychological harm of his tactics to align the child with him against the mother. If so, harm minimization strategies will be required 

   83. A useful decision-making tool is that proposed by Jaffe et al (2005) for differential parenting plans according to the history of cooperation or (violent) conflict between the parents. On the basis of aggregated information the most appropriate parenting arrangement seems to be the one described in 3 below. However, if the non-residential parent were to withhold the child without proven justification or otherwise contravene Orders the disruption to [X] would warrant moving to 4. If thereafter visit supervisors report that the non-residential parent continues to draw the child into adult disputes or denigrate/undermine the other parent, then contact should be extinguished.

Parenting arrangement	Description	Indicators and contraindicators
Co parenting	Parents operate closely	Requires mutual trust and communication
Parallel parenting	Minimal contact of parents under detailed and highly structured plan	Each parent contributes positively but parents have an acrimonious relationship
Supervised exchange	Transfer children with supervision	Each parent contributes positively but parents need a buffer for transition
Supervised access	Safe contact with high-risk parent	Child has something to gain from safe access to high-risk parent
No contact	No access	No meaningful relationship is possible with high-risk parent

86. On the basis of a substantiated FaCS investigation, or other equally compelling evidentiary material which demonstrates an immediate risk of serious harm for [X] in the care of the mother, [X] should live with his father and spend time with his mother in accordance with the level of supervision or restraint deemed necessary to manage the verified threat for his/ her home environment.

87. If the case cannot be established that [X] is at immediate risk of serious harm in the care of his mother, then [X] should continue to live with his mother and spend every second week with his father Friday afternoon to Monday morning with all handovers to and from school. Handovers for holiday visits must be conducted at a contact centre or with the assistance of a supervision service. The parents must never meet in [X]’s presence.

1. It is apparent from Dr H’s Report and, indeed, the evidence that both parents have filed in this case, that [X] is very much aware of and exposed to the conflict between his parents.  It should be recognised that Dr H says there is no risk of physical harm to [X] but there is a risk of psychological harm.  Nonetheless, this Court has transferred this matter to the Family Court Magellan program because of the serious allegations made and because of the seriousness of the risk of psychological harm to [X]. 

2. The Father has two outstanding Applications before the Court.  The first one was filed 22 June 2015 and asks the Court to, in effect, reverse the Orders made by His Honour Judge Kemp on 12 March.  Without in any way pre-empting how this Application might be dealt with, certainly on the Mother’s part, it is contended that the allegations made raise nothing new and, on the Independent Children’s Lawyer’s part, suggest that even if the concerns were established they would not warrant the reversal of the Orders that Judge Kemp made.  Certainly Mr Crowley has a completely different perspective on the issue. The Court recommends that this issue be the subject of a further interim application as soon as the Family Court can accommodate the same. 

3. The second Application that he filed on 9 July 2015, in effect, seeks the removal of the Independent Children’s Lawyer.  Again, without in any way pre-empting this Application, the Father’s Application seems to be based on a difference of view, together with potential communication problems with the Independent Children’s Lawyer. 

4. The Father has filed voluminous material in this matter. A consistent theme in his evidence filed is that he does not agree with others’ assessment of the matters before the Court.  He clearly does not agree, for example, with the Independent Children’s Lawyer’s conduct of the matter.  He clearly does not agree with the effect of the decision made by His Honour Judge Kemp.  More recently, from his most recent Affidavit, filed 25 August, it is clear that he does not agree with much of Dr H’s Report.  Nonetheless, the Father presents as genuinely concerned for the welfare of his son, [X], and that is why this Court transfers it, with the hope that it can be dealt with at a much earlier time than could in this Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  27 August 2015