Picton & Crowley

Case [2022] FedCFamC1F 69

Federal Circuit and Family Court of Australia

(DIVISION 1)

Picton & Crowley [2022] FedCFamC1F 69   

File number(s): WOC 393 of 2013
Judgment of: MCCLELLAND DCJ
Date of judgment: 17 February 2022
Catchwords:

FAMILY LAW – PARENTING – Review of a senior registrar’s decision – Where the father seeks a review of orders dismissing the father’s applications for interim and final parenting orders – Where final judgment was delivered in 2017 ordering sole parental responsibility to the mother, for the child to live with the mother and for the child to spend no time with the father – Where the father was unsuccessful on appeal to the Full Court – Where the father seeks to revisit litigation pursuant to Rice and Asplund (1979) FLC 90-725 – Where the father seeks that the child live with the father – Allegations of the child being exposed to family violence and not performing well in school in the mother’s care – Where no sufficient change of circumstances demonstrated – Orders made dismissing the application for a review and upholding senior registrar’s orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that the father’s applications for interim and final orders be dismissed – Where the preceding determination does not require the Court to consider summary dismissal.     
Legislation:

Family Law Act 1975 (Cth) ss 45A, 65D(2)

Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)

Family Law Rules 2004 (Cth) rr 10.13, 10.14, 18.05

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2018
Cases cited:

Crowley & Picton [2018] FamCAFC 10

Elmi & AD (2019) FLC 93-912

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley [2019] FamCA 101

Marsden & Winch (2009) 42 Fam LR 1

McEnearney & McEnearney (1980) FLC 90-866

Picton & Crowley [2017] FamCA 811

Poisat & Poisat (2014) FLC 93-597

Rice and Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Stativa & Stativa [2015] FamCAFC 170

Tindall & Saldo (2016) FLC 93-727

Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division: Division 1 First Instance
Number of paragraphs: 154
Date of hearing: 23 November 2021
Place: Sydney via webconference
The Applicant: Mr Crowley in person
Solicitor for the Respondent: Venus & Smart
Counsel for the Independent Children's Lawyer: Mr Sperling
Solicitor for the Independent Children's Lawyer: Ark Law Lawyers

ORDERS

WOC 393 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CROWLEY

Applicant
AND:

MS PICTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND dcJ

DATE OF ORDER:

17 February 2022

THE COURT ORDERS THAT:

1.The applicant father’s Initiating Application filed on 6 November 2019 and all subsequent applications made by the father, including his Application in a Case filed on 19 August 2021, are dismissed.

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

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AGLC
Picton & Crowley [2022] FedCFamC1F 69
Case
[2022] FedCFamC1F 69
Decision Date

CaseChat Overview and Summary

The case of Crowley & Picton involved a dispute over parenting orders for a child, X, with the father, Mr Crowley, seeking a review of orders that dismissed his applications for interim and final parenting orders. The final judgment, delivered in 2017, had granted sole parental responsibility to the mother, Ms Picton, and ordered that X live with her, with no time to be spent with the father. The father's appeal to the Full Court was unsuccessful, and he now sought to revisit the litigation under the principles established in Rice and Asplund. The father alleged that X had been exposed to family violence and was not performing well in school under the mother's care, but he failed to demonstrate a sufficient change in circumstances to warrant a review of the orders.

The court considered the father's application for a reopening of the final parenting orders under the principles of Rice and Asplund, which allow for the reconsideration of final orders if there has been a change in circumstances or if justice was not done due to a failure to consider relevant material. The father argued that Rees J had failed to consider relevant information, particularly an interview with X conducted by the Juvenile Interview Research Team (JIRT), which he believed would have changed the outcome of the final hearing. However, the Full Court had already rejected the father's application to adduce this evidence, finding that it would not have altered the result. The court also examined the conduct of the father since the final orders were made and found that it confirmed the wisdom of Rees J's analysis.

In dismissing the father's application, the court held that there had been no sufficient change in circumstances to warrant a review of the orders. The father's allegations of family violence and X's poor school performance were not substantiated, and the court was not persuaded that the JIRT interview would have changed the outcome. The father's conduct since the final orders, including his attempts to involve other parties and his legal actions against the mother's general practitioner, did not support his application for a review. The court concluded that permitting the litigation to be reopened would not be in X's best interests.

The court dismissed the father's application for a review of the final parenting orders and upheld the orders made by Rees J on 12 October 2017. The father's applications for interim and final orders were also dismissed, and the mother's application to dismiss the father's applications was successful. The court's decision was based on the lack of a sufficient change in circumstances and the father's failure to demonstrate that justice had not been done due to a failure to consider relevant material. The court emphasized that the best interests of X remained the paramount consideration in making its decision.

Orders

Orders of the court

WOC 393 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CROWLEY

Applicant

AND:

MS PICTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND dcJ

DATE OF ORDER:

17 February 2022

THE COURT ORDERS THAT:

1. The applicant father’s Initiating Application filed on 6 November 2019 and all subsequent applications made by the father, including his Application in a Case filed on 19 August 2021, are dismissed.

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

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.BACKGROUND The background to the parental dispute up until 24 August 2017 has been set out in substantial detail from [20]–[127] in the reasons for judgment of Rees J dated 12 October 2017, Picton & Crowley [2017] FamCA 811 (“Rees J’s judgment”). It is not necessary to repeat those facts in this judgment, save to note that a substantial part of the father’s current application for both interim and parenting orders is based on the father’s assessment that her Honour erred in making certain findings of fact. This is despite the fact that the father unsuccessfully appealed against Rees J’s judgment, with the Full Court giving reasons for dismissing the appeal on 30 May 2018: Crowley & Picton [2018] FamCAFC 100. Findings of Rees J Following her typically comprehensive analysis of the evidence, Rees J made a number of findings which are relevant to the consideration of the father’s current application. Those relevant findings are set out immediately below. At [141], her Honour did not accept the evidence of the father that his belief that the child witnessed the mother performing oral sex is what compelled the father to withhold the child in May 2013. At [142]–[145], her Honour did not accept the father’s contention that there had been a violent incident involving the mother at the mother’s home on 1 December 2014. Further, at [146]–[208], her Honour did not accept the father’s contention that the child sustained a neck injury at the hands of the mother on 23 August 2015. At [205]–[208] of her decision, Rees J provided the following summary of evidence in respect of the father’s contention;The medical evidence available from professionals who have physically examined X indicates that there is an existing and significant injury to X’s neck. However, I am not able to make a finding that X’s current injury can be attributed to the mother allegedly strangling X or grabbing him by the neck, or that the allegation is true. Numerous, differing accounts of the allegation have been provided to authorities (police, FACS, JIRT) and medical professionals during the course of these proceedings. After being interviewed by JIRT, the interview records note that X was unable to recall the alleged strangulation with any specificity. I accept the evidence given by Dr H, and outlined later in these reasons, that X is under immense pressure to please his father. X’s alleged version of events as disclosed to his father must be considered in that context. The various medical professionals who have assessed X with respect to this injury have relied on the father’s or paternal grandmother’s version of events. When X was seen with his mother at his general practitioner, the doctor noted that X was “jumping around” when not being examined, and it was also noted that the doctor considered the examinations to be “unreliable”. In addition, both Dr S (physiotherapist) and Dr KK (specialist paediatrician) opined that it was not possible to say for certain what had caused X’s injury, due to the time that had lapsed and other possible causes of the injury, such as a bruising or bump to X’s head. I note that the paternal grandmother alleged that Mr J pushed X down a flight of 12 stairs when X was three years old.(Citations omitted)

Evidence

Evidence Before The Court

It can be seen that, insofar as both the interim and final orders sought by the father seek an order for there to be a change in the child’s residence, similar considerations apply in respect to the mother’s application for both the father’s applications for interim and final orders to be dismissed. For reasons which I will set out, I have determined that both of the father’s applications should be dismissed.Evidence The father relies upon the following evidence:(a)Affidavit of the father sworn 26 July 2021;(b)Affidavit of the father dated 19 August 2021;(c)Affidavit of the father dated 19 November 2021; and(d)Unsworn affidavit of Ms AD served and provided to the Court on 23 November 2021, marked as exhibit “E”. The mother relies on the following documents:(a)Response filed 10 January 2020;(b)Affidavits of the mother filed on 9 December 2019 and 23 August 2021; and(c)Child Inclusive Memorandum dated 27 July 2021. The Independent Children’s Lawyer (“ICL”) relies upon a tender bundle marked exhibit “A” in the proceedings and the Child Inclusive Conference Memorandum dated 27 July 2021.ConsiderationThe father’s Rice and Asplund application In his Amended Application in a Case filed on 19 August 2021, the father seeks, as his first proposed order, an order that “the matter be reopened pursuant to Rice and Aspland [sic].” As that application was filed prior to 1 September 2021, it is necessary to consider the application in the context of the then applicable 2004 Rules. Rule 10.14 of the 2004 Rules empowers the Court to decide an issue in the proceedings prior to the final hearing, including in circumstances where the determination of that issue would “dispose of all or part of the case” or “make a trial unnecessary” (r 10.13). A rejection of the father’s application that the proceedings be “reopened” will result in the proceedings being dismissed. As the moving party, the father carries the persuasive onus of satisfying the Court that it should exercise its discretion to reopen the proceedings. The basis upon which the father seeks that order is set out in the father’s affidavit filed on 19 November 2021 as follows: The following is the list of Rice & Asplund issues:X will be 13 on … 2022. X needs a positive male role model in his life. I have never ever harmed [the child]in any way. I was wrongly accused of attempting to alienate [the child] from his mother because I did what any protective parent would. I tried to protect [the child] and get medical attention and treatment for him.I have been extinguished from [the child’s] life for nearly five years.Several times Police failed to comply with Subpoena to produce the 9th September 2015 recorded JIRT interview of X. Due to the failure by Police the interview was not able to be played at Final Hearing 2017. I believe if the interview was available to be played at Final Hearing it would have changed the outcome of the Final Hearing. From these paragraphs, it can be seen that the primary focus of the father is upon his contention that there was effectively a miscarriage of justice as a result of Rees J failing to consider relevant material. This is emphasised in annexure “1” to the father’s affidavit filed on 19 November 2021, where the father attaches a Court fact sheet summarising the principles of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), with the father highlighting the sentence;The current orders were made without all the relevant information having been made available to the court prior to the making of those orders.

Decision

Reasons for decision

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 J Following the Full Court decision, events have occurred that are relevant to this judgment. 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. On 3 October 2018, Mr O’s application was transferred to the Family Court of Australia (as it was then known). 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. 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. In 2019, the paternal grandmother visited the child while he was in the playground at school. The school reported that this caused him distress. 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. 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. On 16 January 2019, the mother, the father, and Mr O attended a court-based Child and Family Meeting with Family Consultant ZZ. On 22 February 2019, during the course of an interim proceeding before acting Senior Registrar, the solicitor for Mr O discontinued the proceedings commenced by him. At some stage subsequent to July 2018, Mr O’s gun licence was revoked,[1] however there is insufficient evidence before the Court to determine the circumstances in which that occurred.[1] Transcript 23 November 2021, p.33 line 19 to p.34 line 5. On 13 June 2019, the child was awarded Victims Compensation in respect to a neck injury which it was found that he had sustained. 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. On 4 November 2019, the application by the paternal grandmother was transferred to the Family Court of Australia (as it was then known).

Ratio Decidendi

Legal Principle Established

The Independent Children’s Lawyer (“ICL”) relies upon a tender bundle marked exhibit “A” in the proceedings and the Child Inclusive Conference Memorandum dated 27 July 2021.ConsiderationThe father’s Rice and Asplund application In his Amended Application in a Case filed on 19 August 2021, the father seeks, as his first proposed order, an order that “the matter be reopened pursuant to Rice and Aspland [sic].” As that application was filed prior to 1 September 2021, it is necessary to consider the application in the context of the then applicable 2004 Rules. Rule 10.14 of the 2004 Rules empowers the Court to decide an issue in the proceedings prior to the final hearing, including in circumstances where the determination of that issue would “dispose of all or part of the case” or “make a trial unnecessary” (r 10.13). A rejection of the father’s application that the proceedings be “reopened” will result in the proceedings being dismissed. As the moving party, the father carries the persuasive onus of satisfying the Court that it should exercise its discretion to reopen the proceedings. The basis upon which the father seeks that order is set out in the father’s affidavit filed on 19 November 2021 as follows: The following is the list of Rice & Asplund issues:X will be 13 on … 2022. X needs a positive male role model in his life. I have never ever harmed [the child]in any way. I was wrongly accused of attempting to alienate [the child] from his mother because I did what any protective parent would. I tried to protect [the child] and get medical attention and treatment for him.I have been extinguished from [the child’s] life for nearly five years.Several times Police failed to comply with Subpoena to produce the 9th September 2015 recorded JIRT interview of X. Due to the failure by Police the interview was not able to be played at Final Hearing 2017. I believe if the interview was available to be played at Final Hearing it would have changed the outcome of the Final Hearing. From these paragraphs, it can be seen that the primary focus of the father is upon his contention that there was effectively a miscarriage of justice as a result of Rees J failing to consider relevant material. This is emphasised in annexure “1” to the father’s affidavit filed on 19 November 2021, where the father attaches a Court fact sheet summarising the principles of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), with the father highlighting the sentence;The current orders were made without all the relevant information having been made available to the court prior to the making of those orders. For completeness, I have considered the father’s application from that perspective and also from the perspective as to whether there has been any change in circumstances that justifies revisiting the orders of Rees J. For reasons which I set out, I have rejected the father’s application considered from both perspectives.Relevant legal Principles – Rice and Asplund issue