Clapham and Tatem and Anor

[2009] FamCA 1142

FAMILY COURT OF AUSTRALIA

CLAPHAM & TATEM AND ANOR	[2009] FamCA 1142
FAMILY LAW – PRACTICE & PROCEDURE – Orders made in relation to a children’s matter – Failure to comply with procedural orders – Consistent failure of the Mother to attend at requested drug tests – Reference in the material to ongoing drug use – Proceedings stayed for 12 months or until proven compliance
APPLICANT MOTHER:		Ms Clapham

FIRST RESPONDENT PATERNAL

GRANDMOTHER:

Ms Tatem

SECOND RESPONDENT FATHER: Mr Tatem

INDEPENDENT CHILDREN’S LAWYER: Ms Michelle Dooley, Solicitor

FILE NUMBER: BRC 9827 of 2008

DATE DELIVERED: 17 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 17 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr R Martin, Solicitor of Smith & Associates appearing for the Applicant Mother

SOLICITOR FOR THE FIRST

RESPONDENT PATERNAL

GRANDMOTHER:

Ms Halliday, Solicitor of Aboriginal & Torres Strait Islanders Legal Service appearing for the First Respondent Paternal Grandmother

FOR THE SECOND RESPONDENT 

FATHER:

The Second Respondent Father appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Dooley, Solicitor of Dooley Solicitors appearing for the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother’s Application for Final Orders filed on 14 November 2006 be stayed for a period of twelve (12) months or until such earlier time that she can satisfy the Independent Children’s Lawyer she has remained drug free for a period of not less than six (6) months.

2. The Mother to provide the Independent Children’s Lawyer with her residential address and telephone numbers within twenty-four (24) hours of any such change of address or telephone details.

IT IS NOTED that publication of this judgment under the pseudonym Clapham & Tatem and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9827 of 2008

MS CLAPHAM

Applicant Mother

And

MS TATEM

First Respondent Paternal Grandmother

And

MR TATEM

Second Respondent Father

REASONS FOR JUDGMENT

1. The applicant in these proceedings is the mother of two children:  R, born in January 1996 and V, born in February 1998.  This litigation has been ongoing for about ten years.  I accept the summary of the litigation history as detailed by Mr Dooley, appearing for the independent children’s lawyer in this matter.  I am told that there have been eight separate reports provided, many of them by Mr P who has done some four or five reports over the years.  The latest report is by one of our family consultants, Ms D.  That was dated 17 August this year.  I will be referring in some detail to the terms of that report shortly.

2. For about the last nine years the children have lived with their paternal grandmother in south east Queensland.  During the period that the matter has been in my list – and it was first before me on 20 March this year – the mother has resided at three different addresses.  She was residing on the Gold Coast, later in the New South Wales border area, and I am told she is now residing in the Beenleigh area.

3. I am informed that the mother works as a cleaner.  Her duties are to attend at three different apartment buildings in the Gold Coast area.  She instructs her legal representative that her hours of employment are 9.00 am until 5.30 pm, Monday to Thursday, but 9.00 am until 5.00 pm on Fridays.

4. The matter was last before me on 21 August.  At that time, an affidavit of the independent children’s lawyer, Michelle Dooley, which had been filed on 18 August, was relied on.  Annexed to that affidavit are five letters sent by the independent children’s lawyer by facsimile to the mother’s solicitor.  Those letters were dated 7 April, 14 May, 16 June, 13 July, and 11 August.  They refer to the fact that on 20 March this year I had made an order that the mother attend for drug testing at all such times as may be directed by the independent children’s lawyer.  Ms Dooley deposes to the fact that, despite the five requests for attendance for drug testing, no response was received.

5. I expressed the view on 21 August that I took a very serious view of the mother’s failure to comply with requests by the independent children’s lawyer.  It held the system up to ridicule.  It was wasting everybody’s time.  It was not an order that was made lightly.  It was of critical importance that if she was asked to attend for drug testing, that she do so and she do so promptly in accordance with the directions.  I indicated to Mr Martin, the legal representative for the mother at that time, that one consequence of ongoing non-compliance with the request for drug testing was to issue what is known as a stay order preventing the mother from further pursuing her application until she can satisfy the court that she is either drug free or she is willing to cooperate with the requests.

6. On today’s date, reliance is placed on a further affidavit of Michelle Dooley which was filed on 12 November, that is, Thursday of last week.  That document annexes letters forwarded to the mother’s solicitors by facsimile transmission on 25 August, that is, four days after the previous hearing.  Further requests were made on 2 September, 9 September, 16 September, 23 September, 30 September, 7 October, 14 October, 21 October, 28 October, and 4 November.  There has been no compliance with any of these requests.  The mother’s explanation given through her legal representative is that her hours of employment preclude her from attending any pathologist other than on a Friday.

7. The mother’s legal representative produced three test reports carried out by QML Laboratories on 24 August, 11 September, and 6 November.  I pointed out the obvious that 24 August was, in fact, a Monday.  I note that the requests had been made, that is, I assume the mother’s general practitioner had made the referral or signed the request document on 24 August, 7 September, and 2 November, respectively.  The mother’s medical practitioner appears to be located at W Street.  The procedure, as I understand it, is to attend on a medical practitioner to have him sign a form directed to the laboratory to do whatever tests are stipulated in the document signed by the general practitioner. 

8. It is perfectly obvious that to have compliance the mother could have given the samples at any QML laboratory, or, indeed, Sullivan Nicolaides, another laboratory.

9. I have had regard to the provisions of Division 12A of the legislation, that sets out principles for conducting child-related proceedings such as this.  Under the heading General Duties it says:

   “In giving effect to the principles in section 69ZN the court must:

   (a)decide which of the issues in the proceedings require full
   investigation and hearing, and which may be disposed of summarily,

   (b)      decide the order in which the issues are to be decided –

   It goes on to say:

   The court may make appropriate use of technology - -.”

10. During the adjournment, whilst I have been rereading the material in this matter, I have requested my associate to do searches for QML collection centres in the Gold Coast region, and also for Sullivan Nicolaides.  There is one QML at Ashmore in the Ashmore Plaza - it is open from 7.30 am until 1.00 pm.  I refuse to accept that where the mother is working full-time the only possible way she can give her collection sample is at the clinic at W Street.  If she is requested through the letter from the independent children’s lawyer to attend, it is commonsense that she can obtain the documentation and attend at any of the QML laboratories or Sullivan Nicolaides, and if she has to pay for the procedure, so be it, but my experience is that normally they are done on Medicare.

11. There is one centre at Benowa open from 7.30 am.  There is one at Burleigh open from 8.00 am, and the mother starts work at 9.00 am.  There is one at Carrara open at 7.30 am.  There is one at Surfers Paradise that is opened at

    
    

    6.00 am and extends open until 6.00 pm, and similar observations can be made about the collection centres as to the ready availability of such centres and the fact that they are commonly open from 7.00 am onwards.  I refuse to accept the explanation given by the applicant through her legal representative as a valid reason for failing to attend random drug testing on 15 occasions over the period from 7 April to 4 November, a period of just seven months.

12. At the hearing on 21 August I clearly threatened an imposition of a permanent stay if the mother was not compliant with court directions.  The order of

    
    

    20 March is perfectly clear in its terms; that the mother was to attend for drug testing at all such times as may be directed by the independent children’s lawyer.  I have to, before making any order for a stay, consider the consequences of any such order upon the children.  I note that at paragraph 31 of Ms D’s detailed report of 17 August the mother gave a quite different explanation for failing to attend for drug tests: 

    “[The mother] openly reported that she had not yet participated in urine screens as her car had been unavailable getting repaired, but she was hoping to follow this up immediately.  She indicated that she had been clean for six years.”

13. I have to consider, as I say, the impact on the children, the factors in section 60CC and the other requirements in the legislation, before making an order, whether of an interim or a permanent stay.  Paragraph 59 of her report

    
    

    Ms D says:

    “[R’s] preference is motivated by the fact that she has “not lived with Mum for a while…it’s fun down there…it would be a good experience…got out and do stuff on weekends and holidays…have experienced going to school there”.  [R] acknowledged that her school grades had slipped for “awhile and now back up…half the work I couldn’t do…hard work.”  [R] did not agree with her grandmother’s observation that she had lost her ambition.  She indicated that she does and does not have ambition.  It would seem that her ambivalence is from her insecurity about whether she will achieve the grades required to achieve her dream of becoming a vet.”

14. Paragraph 60: 

    “The children were directly asked about whether their mother and her partner sell drugs.  The children did not wish to make comment.  It was put to the children that one conclusion drawn from their silence may be that they have seen such behaviour, but may be scared to upset their mother or Mr [E].  [R] was quick to say “no”, whilst [V] nodded his head in agreement.  When [V] was questioned about this, he then said “I don’t know if involved in drugs…don’t know why I nodded my head in agreement”.

15. I have a serious concern that there is the ongoing consumption of cannabis in the mother’s household.  If that be the case that it is an ongoing regular pattern involving also the purchase or sale of cannabis the preliminary view that I form is it is not a suitable environment for a 13 year old girl, or a boy for that matter or a child of any age.  My serious concerns arise because I can draw inferences based on the fact the mother has failed to attend 15 times in a period of seven months when requested to attend for drug tests.  But I also refer to paragraph 71 of Ms D’s report. 

16. She interviewed the children separately after she had interviewed them together.  V, on his own, was more forthcoming with information and not as hesitant to speak.  He confirmed that he did observe Mr E sell drugs in his car.  V reported that:

    “Approximately “three weeks ago… we went to dinner at [B]…me, [R], Mum, [Mr E]…McDonald’s…[Mr E] went to order at the counter…Mum told me and [R] to get Subway for [R]…saw someone walk to [Mr E’s] car and give Mum something…Mum gave money...they left as I approached…heard Mum speaking on the phone [prior to getting to town centre] about getting $70 of the green stuff.” 

17. Paragraph 72: 

    “[V] indicated that this was not the first time he had observed such activity, “[Mr E] uses drugs in the home…has got a bottle, lights it and smokes it…sometimes she [Mum] does it too…sometimes [R] sits at table whilst they do it…once at 2 am, Mum woke me up and told me to sleep in her bed… [Mr E] quickly hid something behind his back.” 

18. Paragraph 73: 

    “[V] reported that the people who visit the home are “people I don’t even know…coming and going from house”.  [V] alleges that [R] doesn’t want to tell the Court because she wants to live with their mother.  [V] alleges that his mother and Mr [E] fight, “sometimes argue…sometimes fight, fist fighting…makes me a bit sad.”

19. Paragraph 77, under the heading of Evaluation, Ms D says: 

    “[V] and [R] are two children who, in my opinion, if it was not for their paternal grandmother intervening in their young lives when she did, are likely to have suffered significant harm at the hands of their parents.  This is not to say that [the grandmother] is not without fault and that some of her actions or inactions, as identified by the Department of Child Safety have not been questionable.  It would be ignorant of one to suggest otherwise.  However, despite this, [the grandmother] has provided [V] and [R] with stability, a sense of security and a strong foundation on which one could project positive future outcomes.  To risk this by changing residence would arguably be foolhardy.”

20. Paragraph 78: 

    “A change in residence, in my opinion, would only be warranted if the risk to the children’s well-being in their paternal grandmother’s care was unacceptable; their relationship with their mother was of a better quality than the relationship they have with their paternal grandmother; or the paternal grandmother was unwilling to promote the children’s relationship with their mother.  These do not appear to be factors that feature in this matter.”

21. Paragraph 79: 

    “I’m aware that [the mother] would have me believe that at least two out of the above three hypotheses is relevant, however I have not been privy to any information that would validate this.  In fact, based on information before me and comments made by the children, I would argue that these hypotheses are more applicable with respect to [the mother].”

22. I have read the report of Ms D.  I am prepared to accept the accuracy of the observations that she has made on the validity of the opinions and recommendations she expresses.  I note that under the provisions of section 69ZR of the new Division 12A: 

    “Power to make determinations, findings and others at any stage of proceedings.  If at any time after the commencement of child-related proceedings and before making final orders the court considers that it may assist in the determination of a dispute between the parties the court may do any or all of the following:

    (a)       Make a finding of fact in relation to the proceedings.

    (b)      Determine a matter arising out of the proceedings.

    (c)      Make an order in relation to an issue arising out of the proceedings.

    It goes on to say that: 

    A Judge, who exercises a power under that subsection (1), is not, merely because of having exercised the power, required to disqualify himself or herself from the further hearing of the proceedings.”  

23. I will not issue a permanent stay, but I am going to stay the mother’s application for 12 months or until she can somehow satisfy the court that she has remained drug-free for the entire period of 12 months.  It is up to her.  She has to work out what her priorities are.  I am not having a child raised in a house where cannabis is in constant use.  The mother has to work out what her priorities are, the consumption of cannabis or the welfare of her children.  I cannot have other litigants continually inconvenienced by this litigation being ongoing whilst we all wait around for the mother to perhaps comply with directions made pursuant to court orders.

24. This litigation has been ongoing on the mother’s application for the past three years.  I have referred to the decision given in March 2006, reported as A and Z, a decision of Faulks DCJ, Warnick and Boland JJs, about the court exercising powers pursuant to rule 11.02.  And that says:

    “If a party does not comply with these rules, the regulations or a procedural order, the court may dismiss all or part of the case, set aside a step taken or an order made, determine the case as if it were undefended or make any of the orders mentioned in rule 11.01.  Order costs to prohibit the party from taking a further step in the case until the occurrence of a specified event or make any other order the court considers necessary having regard to the main purpose of these rules.”

25. At paragraph 60 of the judgment the Full Court observed:

    “Rule 11.02 was founded on a failure to comply with a procedural order.  The rule requires as a prerequisite non-compliance with rules, regulations or a procedural order.  The rule does not provide such non-compliance must be proved in contravention or contempt proceedings.  The prima-facie severity of the rule is ameliorated by the provisions of rule 11.03.  The explanatory statement to the rule makes it clear the court retains a broad discretion in applying rule 11.03.”

26. Paragraph 61: 

    “Where satisfied that this rule, which provides non-compliance with procedural orders, is not directly applicable to appeals or the exercise of a court’s inherent power to summarily dismiss or permanently stay an application for leave to appeal or an appeal.”

27. I do not have to decide, in my view, at the present time whether failure to attend on drug testing is a procedural order or a substantive order which has evidentiary consequences.  Whichever way - whether it is 11.02 or whether it is the court’s inherent power to stay proceedings because of a litigant’s ongoing behaviour in not complying with court orders I propose to make the order for the stay in terms as I have indicated.

RECORDED   :   NOT TRANSCRIBED

1. I will make an order on today’s date in terms as I have indicated, that the mother’s application filed on 14 November 2006 be stayed for a period of

   
   

   12 months or until such earlier time that she can satisfy the independent children’s lawyer she has remained drug-free.  I will make that for a period of six months.  I will order the mother to provide the independent children’s lawyer with her residential address and phone contact details within 24 hours of any such change of address or phone details.

RECORDED   :   NOT TRANSCRIBED

1. The mother has just got to write to the independent children’s lawyers through her lawyer and say “I can turn up at QML.  I can turn up at Sullivan Nicolaides.  I can have my tests, urine test screening done in compliance with any request that you make”.  The ball is in her court.  But until she can do that she does not move any further in this litigation and there will be no consideration given to moving further with the proceedings.  So it is her call.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date: 17 November 2009