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Taggart & Taggart (No 2)

Taggart & Taggart (No 2)

Case [2020] FamCA 520 29 June 2020

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FAMILY COURT OF AUSTRALIA

TAGGART & TAGGART (NO. 2)

[2020] FamCA 520

FAMILY LAW – CHILDREN – Best interests – With whom a child spends time – Where a final parenting order was made in September 2016 which provided for the child to live with the father and spend time with the mother – Where the mother has retained the child on two occasions contrary to the order – Where the mother has been unable to accept the outcome of the 2016 proceedings and has continued to undermine the child’s relationship with the father and his family – Where the father now seeks that the mother be restrained from spending any time or communicating with the child – Where the mother is incapable of regulating her behaviour and has no insight into the damage she has caused the child – Where the mother presents an unacceptable risk of psychological and emotional harm to the child – Where the risk cannot be ameliorated by supervision – Where the mother will be restrained from spending any time or communicating with the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the mother has frequently instituted and conducted vexatious proceedings – Where a vexatious proceedings order is made against the mother.

Family Law Act 1975 (Cth) Pt XIB
Family Law Rules 2004 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
K & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General (2015) 89 NSWLR 284
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81-423
Taggart & Taggart [2015] FCCA 821
Taggart & Taggart [2016] FCCA 2362
Taggart & Taggart [2019] FamCA 966
Viavattene v Attorney General (NSW) [2015] NSWCA 44

APPLICANT:

Mr Taggart

RESPONDENT:

Ms Taggart

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen, TLG Law

FILE NUMBER:

BRC

10337

2014

DATE DELIVERED:

29 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

15 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms K Oakley

SOLICITOR FOR THE APPLICANT:

Norman & Kingston

FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms K Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TLG Law

Final Order

All previous orders providing for Ms Taggart (“the mother”) to spend time with and / or communicate with the child, B born … 2008 (“the child”) are hereby discharged.
The mother is restrained from spending any time with the child.
The mother is restrained from communicating with the child either directly or indirectly.
Mr Taggart (“the father”) is at liberty to provide a copy of the reasons for judgment dated 9 September 2016 and 29 June 2020, and the family report of Ms K dated 6 May…

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 Taggart & Taggart (No 2)

Details

AGLC: Taggart & Taggart (No 2) [2020] FamCA 520
Case: [2020] FamCA 520
Decision Date: 29 June 2020

CaseChat Overview and Summary

In *Taggart & Taggart (No 2)*, the father sought orders restraining the mother from spending any time or communicating with the child, and a vexatious proceedings order against the mother. The dispute arose following a final parenting order made in September 2016, which stipulated the child live with the father and spend time with the mother. The mother had subsequently retained the child on two occasions contrary to this order and had consistently undermined the child's relationship with the father and his family, demonstrating an inability to accept the outcome of the 2016 proceedings.

The court was required to determine whether the mother's behaviour posed an unacceptable risk of psychological and emotional harm to the child, such that contact should be entirely prohibited. Additionally, the court had to consider whether the mother had instituted and conducted vexatious proceedings, warranting the imposition of a vexatious proceedings order.

Carew J found that the mother was incapable of regulating her behaviour and lacked insight into the damage caused to the child. The court concluded that the mother presented an unacceptable risk of psychological and emotional harm to the child, a risk that could not be ameliorated by supervision. Consequently, the court ordered that the mother be restrained from spending any time or communicating with the child. Furthermore, finding that the mother had frequently instituted and conducted vexatious proceedings, the court made a vexatious proceedings order against her.

Orders