TATLOW & TATLOW - [2010] FMCAfam 1227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TATLOW & TATLOW

[2010] FMCAfam 1227

FAMILY LAW – Children – Parenting Orders – where respondent did not attend Court – substance abuse issues – mental health issues.

COSTS – Independent Children’s Lawyer – no order for costs – cost certificate.

Family Law Act 1975, ss.60CA, 60CC, 60CE
Federal Magistrates Court Rules 2001, r.13.03C
Federal Proceedings (Costs) Act 1981, s.10

Applicant:

MS J TATLOW

Respondent:

MS H TATLOW

File Number:

SYC 1650 of 2009

Judgment of:

Scarlett FM

Hearing date:

26 October 2010

Date of Last Submission:

26 October 2010

Delivered at:

Sydney

Delivered on:

26 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms Hausman

Solicitors for the Applicant:

Maguire & McInerney Lawyers

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Hilton King Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Christie

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

That the maternal grandparents, Mr G Tatlow and Ms J Tatlow, are to have sole parental responsibility for the child, [X] born [in] 2004 in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:
(a)The education of the child, both current and future.
(b)The child’s religious and cultural upbringing.
(c)The child’s health.
(d)The child’s names.
(e)Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
That the Applicants are to have responsibility for making decisions as to the child’s day-to-day care, welfare and development during periods when the child is living with them.
That the Mother is to have responsibility for making decisions as to the child’s day-to-day care, welfare and development during periods when the child is spending time or communicating with her.
That the child is to live with the Applicants.
That the Mother submit to urine analysis under supervision and chain of custody upon request by the maternal grandparents but, at least, every eight weeks when the testing will take place within 24 hours of the request being made. Such urine analysis to be conducted in accordance with the Australian and New Zealand standard 4308:2001; procedure for the collection, detection and quantification of drugs of abuse in urine and the Mother to meet all costs associated with such urine analysis.
(i)That subject to the result of the urine analysis test being clear of any drugs, including Oxycontin-Opium, then time between the Mother and child shall take place the following Saturday at the [contact centre omitted] facility at Wollongong commencing from 9:30am until 11:30am or such organisation or facility where the Mother can spend time with the child on a supervised basis.
(ii)Such further and other supervised time as agreed between the parties.
(iii)Reasonable telephone communication between the Mother and the child initiated by the mother.
That the Applicants use their best intentions to ensure that they keep the Mother informed as soon as it is reasonably practicable, of:

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 TATLOW & TATLOW

Details

AGLC: TATLOW & TATLOW [2010] FMCAfam 1227
Case: [2010] FMCAfam 1227
Decision Date: 26 October 2010

CaseChat Overview and Summary

The case of TATLOW & TATLOW involved a dispute concerning the care, welfare, and development of a child born in 2004. The applicants, the maternal grandparents, sought sole parental responsibility for the child, including decisions about education, religious and cultural upbringing, health, names, and living arrangements. The respondent, the child’s mother, did not attend court due to substance abuse and mental health issues. The Federal Circuit Court was tasked with determining the appropriate parenting orders for the child.

The court had to decide whether the maternal grandparents should be granted sole parental responsibility and whether the mother should have supervised contact with the child, subject to regular drug testing. Additionally, the court needed to determine the terms of any contact between the mother and the child, the information to be shared between the parties, and the discharge of previous parenting orders. The welfare of the child was paramount in making these decisions.

The court found that the maternal grandparents should have sole parental responsibility for the child’s care, welfare, and development, while the applicants would have responsibility for the child’s day-to-day care during periods of residence with them. The mother was to have responsibility for the child’s day-to-day care during periods of contact and communication. The child was to live with the applicants, and the mother was to undergo supervised drug testing at least every eight weeks. Contact between the mother and the child was to be supervised, contingent on clear drug test results, and further contact was to be agreed upon by the parties. The court also ordered that the applicants keep the mother informed of the child’s medical and educational matters and provide necessary authorities for both parents to access the child’s information.

The final orders of the court included granting sole parental responsibility to the maternal grandparents, specifying the terms of contact between the mother and the child, and discharging all previous parenting orders. The mother was required to submit to regular drug testing, and the applicants were to share relevant information concerning the child’s welfare.

Orders

Orders of the court

That the maternal grandparents, Mr G Tatlow and Ms J Tatlow, are to have sole parental responsibility for the child, [X] born [in] 2004 in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:

(a) The education of the child, both current and future.

(b) The child’s religious and cultural upbringing.

(d) The child’s names.

(e) Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.

That the Applicants are to have responsibility for making decisions as to the child’s day-to-day care, welfare and development during periods when the child is living with them.

That the Mother is to have responsibility for making decisions as to the child’s day-to-day care, welfare and development during periods when the child is spending time or communicating with her.

That the child is to live with the Applicants.

That the Mother submit to urine analysis under supervision and chain of custody upon request by the maternal grandparents but, at least, every eight weeks when the testing will take place within 24 hours of the request being made. Such urine analysis to be conducted in accordance with the Australian and New Zealand standard 4308:2001; procedure for the collection, detection and quantification of drugs of abuse in urine and the Mother to meet all costs associated with such urine analysis.

(i) That subject to the result of the urine analysis test being clear of any drugs, including Oxycontin-Opium, then time between the Mother and child shall take place the following Saturday at the [contact centre omitted] facility at Wollongong commencing from 9:30am until 11:30am or such organisation or facility where the Mother can spend time with the child on a supervised basis.

(ii) Such further and other supervised time as agreed between the parties.

(iii) Reasonable telephone communication between the Mother and the child initiated by the mother.

That the Applicants use their best intentions to ensure that they keep the Mother informed as soon as it is reasonably practicable, of:

(a) Any medical problems or illnesses suffered by the child whilst in each party’s care.

(b) Any medications that have been prescribed for the child.

(c) Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the child.

(d) Any significant social or religious functions which the child is to attend.

(e) The details of any schools attended by the child.

(f) The details of any sporting bodies that the child is involved in.

(g) The residential address of each parent and particulars of others who may reside with the child.

(h) Any other important matter relevant to the welfare of the child.

That the Applicants use their best intentions to provide full particulars to the Mother of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.

That the Applicants are to provide the necessary authorities to the principal of each attended by the child to ensure that the school may forward both parents, including the Mother, copies of the child’s school reports as they fall due, along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

That all previous parenting orders are discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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