TATLOW & TATLOW
[2010] FMCAfam 1227
•26 October 2010
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:
(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.
IT IS NOTED that publication of this judgment under the pseudonym Tatlow & Tatlow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1650 of 2009
| MS J TATLOW |
Applicant
And
| MS H TATLOW |
Respondent
REASONS FOR JUDGMENT
The application before the Court is made by the maternal grandmother of a little girl called [X], who was born [in] 2004. [X] is now six years of age. The application by the maternal grandmother is, in fact, made on behalf of both grandparents and seeks orders on behalf of both grandparents.
The Applicants seek parenting orders providing that their grand daughter should live with them, that they should have sole parental responsibility for her, although that the Mother should have responsibility for making decisions as to the child’s day-to-day care, welfare, and development when she is with the Mother.
The reasons for the application being brought relate to the Mother’s lengthy history of substance abuse and mental illness. This has been lengthy and ongoing.
It is clear from the affidavit evidence, from the single expert report from Associate Professor Q, and from subpoenaed material tendered by the Independent Children’s Lawyer that the ongoing problems, particularly in regard to substance abuse, do not seem to be diminishing.
Proceedings were originally commenced by the filing of an application and supporting affidavits on 20th March 2009. A single expert report was prepared by Dr Q and it is a most comprehensive document, and it is clear that a considerable amount of material has been taken into account.
The application has been listed for hearing on a final basis before the Court today. Not surprisingly, the features in this case of the Mother’s mental health problems and ongoing drug abuse problems led to the appointment of an Independent Children’s Lawyer.
When the matter came before the Court for final hearing, the Mother was represented by solicitor and counsel. However, I was informed by Mr Alexander of counsel, who was briefed to appear for the Mother, that his instructor had had no success in attempting to engage the Mother in any form of a dialogue so as to receive appropriate instructions for the purpose of this hearing.
I am informed there were attempts to telephone her, and up to four letters written, in increasing tones of urgency, asking the Mother for instructions; however, no reply was forthcoming.
The Mother was not here when the matter was called when the Court opened at 10:00am. At 10:18am I directed that the Respondent should be called three times outside the Court room. There was no response.
I stood the matter in the list and called the matter again at 10:34am. The Respondent’s name was called three times outside the Court room and, again, no one answered the call.
At that stage, the Respondent’s counsel and his instructor sought the Court’s leave to withdraw as they were without instructions. That leave was granted.
Counsel for the Applicant, Ms Hausman, sought to proceed with the hearing generally, a course which was not opposed by the Independent Children’s Lawyer.
I stood the matter down and went off the bench to read appropriate material and returned at 11:30am. Again, there was no appearance by the Mother, who is the respondent.
Under Rule.13.03C(1)(e) of the Federal Magistrates Court Rules:
If a party to a proceeding is absent from a hearing the Court may proceed with the hearing generally or in relation to any claim for relief in the proceeding.
In my view, it is appropriate for the Court to proceed with the hearing generally. It became quite clear that the Court could not expect any appearance by the Respondent today.
My attention was drawn to a number of matters including affidavits by the Applicants and Associate Professor Q’s very comprehensive report. Counsel for the Independent Children’s Lawyer also tendered some subpoenaed material from the Respondent’s then medical practitioner, a Dr D.
That subpoenaed material showed that the Mother had been obtaining medication and was “shooting up,” to use the colloquial term, in the toilets of the local bowling club, and the particular pharmacy no longer wished to dispense for her. Dr D advised that he could no longer see the Respondent.
It is clear that the Respondent has been taking prescribed medication called Oxycontin, and it does not appear that her use of that drug is going to diminish.
Both Applicants, the grandparents, were present today in order that they could be cross-examined on the contents of their affidavits, however, counsel for the Independent Children’s Lawyer indicated that that was not necessary. It was put to me by Ms Christie that there was no basis to test the evidence of either grandparent.
The Applicants have submitted an amended minute of proposed parenting orders which would involve the child living with them or continuing to live with as she has since February of 2009, and that the grandparents have sole parental responsibility.
Orders are also sought for the Mother to submit to urine analysis upon request for the purpose of ascertaining the presence in her system of various drugs.
Orders are sought that the grandparents use their best intentions to keep the Mother informed about medical and schooling and sporting issues relating to the child, and provide particulars to the Mother of any medical practitioner or health service, and to give authorities to the principal of any school attended by the child so that the Mother may obtain copies of such things as school reports and other information normally issued to parents of children at school.
It is certainly the position of both the Applicants and the Independent Children’s Lawyer that [X] should continue to live with her grandparents.
I have had regard to the single expert report prepared by Associate Professor Q. At page 62 of the report, Associate Professor Q refers to the problems of a parent who is both a substance abuser and has a mental illness.
These problems include avoiding seeking help due to lack of insight or motivation or isolation or fear of intervention by child protection authorities. Periods of illness or incapacity in the parent mean that other adults are often caring for their children. Unless there are close family members, this often compromises child’s safety.
In a substance abusing household other adults often come and go, and this poses a risk. Professor Q goes on to describe her concern for the child’s safety and wellbeing if she were to be in the care of the Mother.
When a Court is considering making a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. This is prescribed by section 60CA of the Family Law Act.
Section 60CC sets out how a Court determines what is in a child’s best interests. There are primary considerations set out in subsection 60CC(2), and there are additional considerations set out in subsection 60CC(3).
It is also important for the Court to consider the matters set out in sub-section 60CC(4) where the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which the parents have taken, or failed to take, various opportunities to make decisions about the child’s major long term issues, spend time with the child, and communicate with the child.
This child does have a father but all the evidence before me indicates that he is well and truly off the scene and has no contact with his daughter and, in fact, played less of a role than the child’s mother.
It has been put to the Court, and I believe correctly, that the primary considerations in sub-section 60CC(2) of the Act are the matters that are particularly important.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents, and
(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Clearly, it is of benefit to this child of having a meaningful relationship, in the context of the Mother’s difficulties with mental illness and substance abuse, with the Mother. This child has no meaningful relationship or and, indeed, any relationship with the Father, which is a matter of some regret.
The overwhelming consideration would have to be that in paragraph 60CC(2)(b), being:
The need to protect the child from physical or psychological harm; from being subjected to or exposed to abuse, neglect, or family violence.
Professor Q addresses that consideration at page 53 and page 54 of her report. She states that the child has a reactive attachment disorder that is evident in her avoidant responses.
These are most marked in relation to her mother, and this is strongly suggestive that there has been an inadequate level of parenting. The Mother was observably passive and under-responsive in a situation where she was being observed and assessed.
Dr Q goes on to say that it is apparent that:
[X]’s avoidant detachment to her mother has arisen as a consequence of the Mother’s disturbed behaviour consequent upon mental illness and/or substance abuse. Thus the Mother is, at best, under-responsive and withdrawn as when observed during the assessment. While clinical records suggest that, at worst, she at times manifests more overt psychotic symptoms with delusions and hallucinations. It is also apparent that she has a problem with dependence on prescribed opiates and is known to healthcare authorities as a doctor shopper. In addition to the more obvious risks to a child that are associated with living in a household where there is substance abuse, the effect of sedating substances on the Mother would be to make her even more unresponsive to the child.
Dr Q expresses the opinion that if [X] were to remain in the care of her mother, she would be exposed to the considerable risks of mental illness and/or substance abuse in a carer. These risks include the acute dangers of a parent who may be driven by delusional ideas or who might not be fully conscious as a result of sedation. There is also the more subtle and long-term risk that [X] is likely to become a parentified caretaker towards her mother. This is always a risk when a parent is impaired and the risk is magnified greatly in a single parent and single child household where the child is the only available other person. It is magnified also in the case of a female child.
Professor Q goes on to refer to any wishes expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s wishes. She states that [X] is aware that her mother is not providing adequately for her and said that this was apparent when she expressed a guarded wish to return to her mother’s care when she is better. However, the child’s behaviour clearly indicates that she feels secure in the care of her grandparents but is insecure and markedly avoidant towards her mother.
My attention has been drawn to the more recent affidavit of the applicant grandmother, which was sworn on 19th October. There is a poignant paragraph where the grandmother reports at paragraph 9:
Another time she came home upset and when I was calming her down and trying to find out what was wrong, she made a remark to me. Words to the effect, ‘I’m the only one in the class who doesn’t live with her mum and I don’t see her.’
Again, at paragraph 12 of the affidavit, the grandmother refers to attempts to communicate with the child’s mother and refers to an incident where, by chance, they met the Mother on Father’s Day. The grandmother deposes:
During the Father’s Day meeting at one stage, I heard [X] say to her mother, ‘Mummy, why don’t you answer my phone when I ring you?’ And [Ms H Tatlow] said, ‘I ran out of credit.’ Often at the request of [X] I will send an SMS message to her mother requesting that she telephone her daughter. She has not done so.
It is clear that this child would like to spend time with her mother, but in circumstances where she can feel safe and comfortable with her. The paragraphs referred to in the affidavit indicate a disappointment in this little girl’s mind as to the Mother’s not responding to her or providing her with appropriate care.
Dr Q’s report indicates that the grandparents have mostly been supportive of the Mother and have always endeavoured to assist with respect to the child and, indeed, they would prefer that the Mother could manage the child herself. It does not appear that that is to be the case. Dr Q is of the view that because of her mental illness, the Mother could not be relied upon to sustain contact with her parents and expresses the opinion that if the child were in her care, it is likely that this pattern would continue with periods of no contact, and other periods when the mother would request assistance from her parents, including asking them to be responsible for the child.
Dr Q expresses the view that it would be difficult, if not impossible, under such conditions, for the grandparents to monitor the situation with regard to the child’s welfare and safety. As to the likely effect of changes in circumstances, including separation, sadly, Dr Q notes that the child is accustomed to irregular contact with the Mother. Although, fortunately, she is secure in her relationship with her grandparents, so continued residence with them would not pose difficulties for her, however, she would be at risk developmentally if she were separated from her grandparents, since she is already a vulnerable child with a reactive attachment disorder, and she needs the stability and securing and the stimulation that they provide.
Due to the Mother’s long history of mental disturbance, and in my view, the Mother’s history of substance abuse, it is fair to say that her capacity to provide for the child’s needs would be low. However, the maternal grandparents appear to have a capacity to care for this child’s needs, and a willingness to do so. Dr Q expresses the view that the Mother has not been able to provide for this child responsibly and consistently. At times, she has surrendered the care of the child to her parents. Other times, she stopped all contact. By comparison, the grandparents have a responsible attitude to parenting the child.
It is Dr Q’s view, and it appears to be correct, that there is no present risk of any exposure to violence on the part of the child, but there is a strong need for this child to be protected. In my view, the orders that the Court needs to make are those directed towards providing a safe and stable environment for this child. This environment appears, on all the evidence before the Court, to be the environment offered by her maternal grandparents. It is not a case where this child should have no contact with their mother; far from it. She wants to see her mother. She wants to have a relationship with her mother and it would be of benefit for her to do so, but in circumstances where her safety and wellbeing are ensured.
The Applicants seek orders which, in my view, would meet this requirement, and the Independent Children’s Lawyer does not object to any of those orders being made. In my view, it is appropriate for the Court to make those orders as amended and I shall read those orders on to the record now.
Costs
There are a couple of costs matters to be dealt with. One is an application for costs on behalf of the Independent Children's Lawyer.
I have been on record on a number of occasions this year in expressing the Court’s appreciation for the great assistance provided to the Court in parenting matters by Independent Children’s Lawyers appointed under the provisions of section 68L of the Family Law Act.
It is my observation that Legal Aid New South Wales responds in a positive way to a Court’s request to facilitate such representation and the standard of representation for children for this Court has, in my experience, been gratifyingly high. I see no reason to depart from that opinion in respect of the Independent Children’s Lawyer who is assisting the Court in these proceedings.
There is much to be said for making a costs order in favour of the Independent Children’s Lawyer because it is well known that Legal Aid commissions across Australia never have an excess of funds to apply - quite the reverse, in fact. That said, this, to my mind, is an unusual case where the Applicants have acted in the best interests of the child and, clearly, in the public interest, because it is no small task for people to take on, full-time, the care of a grandchild, especially when parents otherwise have adult children, and in their lives were not expecting to take on a parenting role for a young child again. But it is in the public interest for grandparents, where necessary, to take on this role, which is the case here.
Certainly, in my experience, both in this Court, over the last 10 years, and in the Children’s Court of New South Wales over the previous six years, I have seen many examples of grandparents shouldering this burden in a most admirable way. I am mindful of the fact that the grandparents have incurred costs in order to meet this responsibility. In the circumstances, I am not of a view that I should make an order for costs requiring the grandparents to pay a further sum of money to Legal Aid New South Wales, being the costs of the Independent Children’s Lawyer. Sometimes, there are matters where it is not in the public interest to make such a costs order; I think this is one of them.
I am also asked to make an order issuing a costs certificate under subsection 10(2) of the Federal Proceedings (Costs) Act 1981. This is due to the fact that the matter was listed for hearing on 27th April 2010 but it could not proceed due to the fact that I was ill. I was, indeed, ill. I was, in fact, quite ill, and I would not have been able to attend Court. This was in no way due to any fault or failing on behalf of the Applicants or, indeed, the Respondent, I hasten to add, and in my view, it is in the interests of justice for a costs certificate to issue.
I am informed by Ms Hausman of counsel that the appropriate sum, as prescribed, is the sum of $3,000.00, which may not necessarily represent the full recompense for the costs that were incurred on that occasion. However, I am of a view that this is an appropriate matter for a costs certificate under the Act to issue, and the sum of $3,000.00 appears to me to be an appropriate figure.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 November 2010
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