Case note: Taggart & Taggart (No. 2) [2020]
The case of Taggart & Taggart was before the Brisbane Family Court in June 2020. It this case the Court were required to consider: -
whether to continue with the Final Hearing, where personal attendance was required, when the Mother refused to attend due to COVID-19; and
whether it was in the child’s best interest to make an Order for the Mother to have no further time or communication with the child.
The Court was also asked to consider making a vexatious proceedings order against the Mother. We will look at this aspect of the Courts decision in a later case note.
The Facts
The parties had one child aged 11 years old. They had been engaged in various Court proceedings relating to the child since he was around 5 years of age.
In 2016 Orders were made for the child to live with the Father and spend time with the Mother. The Father was to have sole parental responsibility for the child. During the 2016 proceedings, the Court made findings that the Mother and maternal grandparents held highly negative views of the Father and saw little value in him having a relationship with the child [at 34].
After the Mother refused to return the child to the Father’s care on two separate occasions, both which resulted in recovery Orders being made by the Court, further Orders were made in October 2018 providing that the Mother’s time with the child be supervised by a Children’s Contact Centre.
The Mother spent time with the child at the Children’s Contact Centre, however by the time the matter was before the Court for the Final Hearing the Contact Centre had withdrawn their services after the Mother verbally abused staff members.
In addition to the issues with the supervised time, the Mother had also refused to accept that the child suffered from coeliac disease despite a medical report confirming the diagnosis. The Mother had expressly stated she would not follow the child’s dietary requirements.
The matter was listed for a Final Hearing on 20 June 2020 with the parties required to attend Court in person. The Court advised both parties that appropriate social distancing measures had been put in place. The Mother emailed the Court stating she would not attend the Final Hearing due to the COVID-19 pandemic. The Mother was told that she would need to file an Application in a Case and Affidavit seeking an adjournment. The Mother did not file the necessary Application in a Case, instead sending a further email stating she would not attend Court.
Proceeding with the Final Hearing
Despite the Mother only emailing the Court and not filing an Application in a Case, the Court did consider whether to adjourn the proceedings or continue in the absence of the Mother. The Court cited the High Court case of Taylor & Taylor where His Honour Mason J said: -
“[it is] prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case”. [Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 15-16].
The Court went on to say that where a “party chooses not to attend proceedings of which they were aware, then they have not been denied the opportunity to be heard.” [at 86].
In deciding whether to grant an adjournment the Court considered that: -
the Mother had not filed her trial material for the Final Hearing and had not made a formal application to adjourn the proceedings;
there were minimal known cases of COVID-19 in Queensland and no public health directions prohibiting attendance at Court, rather Court had been specifically permitted in the Queensland health directions;
the need to bring the proceedings to an end;
the fact that both the Father and Independent Children’s Lawyer objected to the adjournment and
the Father was privately funding the proceedings.
The Court ultimately declined to adjourn the proceedings.
The Mother’s time and communication with the child
The Family Law Act requires that the Court balance the benefit of the child having a relationship with their parents, against the need to protect the child from being exposed or subjected to psychological harm [s60CC(2)]. The question for the Court in this case was whether the Mother’s behaviour placed the child at risk of psychological harm, and if so whether that justified the making of a no-time order.
The Court had evidence from a Family Report writer that the child enjoyed a good relationship with the Mother and noted that his primary attachment had been to his Mother. The Family Report writer also noted the child was, “delighted to see his mother” at the time of the family report interviews [at 54] and that they had spent time together “chatting constantly about child-focused topics” [at 54]. The Family Report writer recommended to the Court that the Mother continue having infrequent supervised contact with the child. The Independent Children’s Lawyer supported this suggestion.
The Court was ultimately satisfied the Mother presented an unacceptable risk of physical and emotional harm to the child and it was not be appropriate for the child to spend any time with the Mother, whether supervised or unsupervised.
His Honour understood that this decision would cause the child to “grieve the loss of his mother”. However, his Honour noted that, “this is one of those tragic cases where the child simply cannot have a relationship with both parents.”
In coming to the decision that a no-time Order was appropriate; the Court identified the Mother’s refusal to reign in her behaviour and dislike of the Father as a relevant factor [at 57]. His Honour found that supervision would not negate the risk given the Mother’s previous conduct at the Contact Centre [at 57]. On this point His Honour stated: -
Even if supervision could protect the child, there seems no realistic prospect of supervision being able to be lifted given the mother’s persistent attempts to undermine the father, her abject hatred of him, and the risk of abduction. I must weigh the damage to the child of exposure to such damaging behaviour with the child’s desire to have a relationship with his mother. The mother is unable to regulate her behaviour, and even in circumstances where she thought the child was present her behaviour was out of control. Even if I could be satisfied that long term supervision was practical, I fail to find any “cogent reason to justify such an order”. The risks of harm outweigh the benefits. [at 62]
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