Mondovo

Protecting a child through a “No Time and No Communication Order”

Extreme behaviour resulting in extreme orders

The Family Law Act states clearly that a child has a right to know and have a relationship with each of their parents.  However, there are some circumstances within which having that relationship will cause a child more harm than good.  That harm can be emotional, physical, sexual, or psychological.

Most often the Court protects children from risk of harm through supervision of their time with the parent whom they consider poses a risk to the child.  However, in rare circumstances that protection can only be afforded through a “No Time” Order.

The Family Court at Brisbane on 29 June 2020 made such an Order and additionally declared the Mother a “Vexatious Litigant” which is another rarely used power.

The matter of Taggart & Taggart (No2) [2020] FamCA 520 came before the Family Court of Australia for final hearing after some 6 years of constant litigation.  It was listed in the height of the COVID-19 restrictions but was a matter the Court determined needed to proceed and in person.

At the outset it is important to note that the Mother chose not to participate in the trial.  She did not file material.  The parties were advised prior to the trial that personal attendance was required, and that appropriate and safe physical distance measures were to be put in place by the Court.  The Court determined to proceed in the mother’s absence with Her Honour’s judgement clearly confirming why that occurred.

The facts of the matter are colourful to say the least and we will not repeat verbatim some of the words used by the Mother, but it is important to know the background in order to understand why Her Honour Justice Carew determined the matter as she did.

  • There was one child the subject of the dispute, a boy who is 11 years of age. The parents had been involved in litigation regarding his care since he was only 5 years of age.
  • In September 2016, an Order was made providing for the Father to have sole parental responsibility, for the child to live with him and spend time with the Mother.
  • The Mother never accepted that outcome and because of two instances of her withholding the child from the Father, in October 2018 an Order was made for the Mother’s time to be supervised.
  • From October 2018 until March 2020 the Mother spent only one occasion of supervised time with the child.

The Court was tasked with considering the following issues for determination:

  • Is the child at an unacceptable risk of harm from the Mother given her views of the Father and his family?
  • Would the mother return the child to the Father should she have time with the child?
  • What would be the impact on the child if he had long term supervised time with the Mother or no time or communication with the Mother?
  • Should the Mother be declared a vexatious litigant?

As a result of the Mother’s failure to attend, the Court considered this as effectively an application to adjourn the trial.  This Application was denied for the following reasons:

  1. The Mother failed to file any material, begging the question of what involvement she proposed to have in the trial in any event.
  2. The Mother made no formal application for adjournment nor provided any evidence of her particular risk or vulnerability to COVID-19.
  3. At the time of hearing there was only 5 active cases of COVID-19 in Queensland.
  4. There was no public health directive prohibiting the parties attending at Court.
  5. At the first date of trial Queenslanders could attend restaurants, hotels, and travel on public transport.
  6. Safety measures had been put into place.
  7. The interests of the child were such that a long history of litigation had to be ended.
  8. Electronic means of conducting the matter were not considered appropriate.
  9. The Father who was privately funding the matter and the ICL opposed the adjournment.

Thereafter Her Honour considered each of the issues for determination.

In the 2016 judgment the Court found that the Mother and her family had a highly negative view of the Father and they ere unable to hide those feelings. In fact, the Mother and her family had nothing positive at all to say about the Father.

At that time, the Family Report noted the mother as saying

  • He should get out of our lives
  • Just leave us alone and go away

Not surprisingly the Family Report concluded that the Mother was willing to make regular derogatory and denigrating statements that demoralized the Father’s person, suggesting her behaviour is regular and comments without restraint.  In possibly the most unhelpful move for a litigant she referred to the 2016 trial Judge as “a piece of crap” in the Family Report and in court events.

The first time the mother saw the child after the 2016 judgement she took him to the Police complaining of him being beaten by the Father.

In 2018 two recovery orders had to be made against the Mother who withheld the child from the Father and from school.

The Mother does not accept the child’s medical diagnosis and indicated to the Contact Centre that she was not going to follow the necessary dietary requirements.  She also advised the Centre that one of her goals for supervision was to “prove to dickhead” that she did not need supervision.

When the Mother finally saw the child in 2020 she threatened to punch the Centre coordinator in the face and levelled vile and expletive riddled abuse at staff, including on an occasion she thought her son was inside the Centre. Thankfully, he was not.

The 2020 Family Report opined that the Mother’s anger is unrelenting and entrenched. She does not trust the Father; she sees nothing positive in him.  She had no insight as to why her time was being supervised and blamed the Court. The Court was asked to find the least detrimental alternative for the child, calling the current situation a “life tragedy” for the child.

Her Honour Justice Carew concluded that supervision would not ameliorate the risk to the child.

Unsurprisingly the Court found that the Mother would undoubtedly fail to return the child if she had unsupervised time and that long-term supervision was not appropriate.

Sadly, then the Court turned to the impact on this young man of not seeing nor speaking with his mother. Her Honour, with much sadness we have no doubt, concluded that this child will grieve for his mother but it was a case wherein he could not have a relationship with both of his parents in person or via any form of communication.

Finally, of the Court’s own volition it turned to the question of a Vexatious Proceedings Order pursuant to s102QB of the Family Law Act.  The judgement helpfully considers all the relevant authority in this regard, and having considered the authority and:

  1. The Mother’s 20 almost entirely unsuccessful interim applications from 2015 to the 2020 trial; and
  2. The Mother’s two appeals either abandoned or dismissed by the Court with costs

The Court declared the Mother vexatious requiring her to firstly seek leave of the Court pursuant to s102QE before being able to commence any further proceedings.

This matter involved the most extreme of behaviour on the part of a parent. In this matter it was the Mother, in other’s it is the Father, or the grandparent or other caregiver. However, it shows clearly that the Court does not distinguish between the gender of poor behaviour and will ultimately make tough decisions for the benefit of the child.

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