Darling and Rudge

FAMILY COURT OF AUSTRALIA

DARLING & RUDGE

[2007] FamCA 426

FAMILY LAW - CHILDREN – With whom a child shall live - Best interests of a child - Child to live with his applicant sister

APPLICANT:

MS DARLING

RESPONDENT:

MS RUDGE

INDEPENDENT CHILDREN’S LAWYER:

MR P HAMILTON

FILE NUMBER:

NCF

698

2006

DATE DELIVERED:

29 March 2007

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

MULLANE J

HEARING DATE:

29 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms McEntyre of Messrs Thomas Mitchell

SOLICITOR FOR THE RESPONDENT:

Ms D Clark, Solicitor

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Mr Hamilton of Peter Hamilton & Associates

Orders

The child of the respondent mother, a son, born in March 1993, is to live with the applicant, Ms Darling, and she has sole parental responsibility for the child;
The child is to spend such time with the respondent mother as he agrees and such time is to be supervised by a responsible adult nominated by the applicant;
Otherwise any outstanding applications of the parties are dismissed;
The application by the Independent Lawyer for the child for orders for the parties to contribute to the costs of legal representation for the child is refused and dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as “Darling & Rudge”.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 698 of 2006

MS DARLING

Applicant

And

MS RUDGE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings about the care, welfare and development of a 14 year old boy, G. The first applicant is the boy's sister, the second applicant was her partner, Mr H, and the respondent is the mother of the child. The natural father of the child is not known. The mother has at times named two different men as the natural father.
I should say, the proceedings were listed today for a first day of a less adversarial trial and the mother failed to complete and file the questionnaire, and no doubt that she is on notice of the proceedings and her solicitor says that she spoke to her yesterday, I think, and the mother said she would not attend.

THE EVIDENCE

The evidence I have read comprises:
·the amended application of the applicant and Mr H filed on 12 December 2006 in which the applicant seeks that the child reside with her and spend time with his mother as the Court determines;
·A Notice of Discontinuance filed by Mr H on 13 December where he withdrew from the application;
·A response of the mother filed on 11 December 2006, in which she sought orders for the child to live with her and to spend time with the applicant, his sister, supervised by the Relationships Australia contact service, and also sought an order that there be no time spent by the child and no communication with Mr Hudson and the mother, (that document also sought sole parental responsibility for the care, welfare and development of the child);
·the affidavit of the applicant sworn 5 December 2006, the mother's affidavit sworn 1 December 2006;
·the second affidavit of the applicant sworn 5 March 2007;
·the flagged documents in the first bundle in exhibit CR1, which are medical records of the mother from the N Health Service;
·the flagged documents in exhibit CR2 being flagged pages of records in relation to the mother and her children (There are another four living children besides the child and the applicant);
·the flagged pages, which is exhibit CR3 from the X Youth Service in relation to counselling that the child had and wishes that he expressed to the counsellor there;
·the documents, exhibit CR4, which are criminal records of the applicant, the mother and Mr H; and
·flagged documents which are exhibit CR5, which are school records in relation to the child from the Z High School where he attended in 2006, and also the C College at W he attended in 2006. (Mainly the flagged pages relate to his attendances and particularly unauthorised or unexplained attendances.)

BACKGROUND

The brief background is that the mother has a history of addictions in relation to alcohol and illegal drugs and also of significant mental health problems, including diagnoses of schizophrenia. She was hospitalised last year with mental health problems after she took an overdose of tablets, and there have been other occasions where she has had thoughts of self harm or of harming others physically. There are also records of a time she was suffering delusions. She has at times been unable to ensure the child’s attendance at school. She has also had a history of homelessness and financial problems, including a bankruptcy order last year. Last year and in 2005 she had the care of the child and his younger brother whilst she was going through some of these difficulties.
In March of April last year the child and his mother went to live with the applicant and Mr H. The mother subsequently the home in August 2006 as has since resided elsewhere. The child has continued to reside with the applicant and her partner since August 2006. There were some interim orders made in the proceedings on 6 February this year which provided for the child to reside with the applicant, spend time with his mother and communicate with her in such a manner as the parties agree.
The fact is that since the mother left the applicant's home in August there has been no contact by her with the child or by the child with her and the evidence from the X Youth Service, is that the child is opposed to having any contact with his mother. Indeed, I think the child has refused to spend time with his mother since the interim orders in February 2007.
Whilst the mother, through her solicitor, seems to express a wish to spend time with the child, she appears unwilling to consider or participate in discussions about supervision of her time with the child.

THE RELEVANT LAW

The Parliament in the last year has added a further level of complexity to the Family Law Act in relation to the matters the Court must take into account in children’s proceedings, but the main principle which appears in s 60CA has not changed and that is that in determining what parenting orders to make the Court must regard the interests of the child as paramount.
There are expressions of objects in s 60B. They remind the Court and the parties involved that for the child the expressed objectives are a long way from fruition and that whatever the Court decides for the child will result in a less than promising outcome for him. Objective A is to ensure that the child has the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. It seems that the child has not had any involvement in his life by his father. If his father is aware that he is the father of the child then he has abandoned the child.
Paragraph B is protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Paragraph C is ensuring that children receive adequate and proper parenting to help them achieve their full potential. Paragraph D, ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The Act includes also principles underlying the objectives, and again one can only be concerned that the best the Court can do falls far short of the principles that are expressed in the legislation:
"A. That children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or never lived together;
B. Children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant in their care, welfare and development, such as grandparents;
C. Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
D. Parents should agree about the future parenting of their children;
E. Children have a right to enjoy their culture, including the right to enjoy the culture of other people who share that culture."
Paragraph 60B(3) talks about the right of an Aboriginal child or an Islander child to enjoy their culture and, although there is some mention of Aboriginality, there is no direct evidence as to whether the child is an Aboriginal or Islander child.
The main section is s 60CC which sets out the considerations that the Court must take into account when determining what is in the best interests of the child, and I will refer to those in my findings and conclusions.

FINDINGS AND CONCLUSIONS

In sub-s 60CC(2) the Parliament has described what are the primary considerations. The first is the benefit of the child of having a meaningful relationship with both of the child's parents. In the child’s case, he does not have the support of his father and he does not, apparently, know who his father is. The whereabouts of his father are not known and it seems that there is no prospect that he is going to have a meaningful relationship with his father.
His mother's problems are quite serious and there does not seem to be any evidence that she has accepted any recognition of her problems or embarked upon any organised program or therapeutic program that might give one optimism about her future. It seems that the child will only ever have time with his mother in a safe way and in a meaningful way if it is supervised by someone who is capable of ensuring that he is safe.
Paragraph A is the need to protect the children from a physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I do not think I mentioned it earlier, but there has been a background that the mother's care arrangements for the children have involved exposure to family violence, and also it is clear from the DOCS file and the Health file that at times the mother's care has involved abuse and neglect. Indeed, there are complaints by the child in relation to physical abuse.
Sub-section 60CC(3) sets out the additional considerations and I will go through those. The first of those is views expressed by the child and also factors such as the child's maturity and level of understanding that the Court thinks are relevant to the weight that should not be given to the child's views.
The child has expressed opposition to any contact with his mother. He has expressed a wish to remain living with the applicant and Mr H. He is 14 years of age. One would expect he has a reasonable level of maturity and I think his wishes should be given considerable weight.
Paragraph (b) is the nature of the relationship of the child with each of his parents and with other persons of any significance. I have mentioned his relationships with his parents. His relationship with his mother is perverse insofar as that she loves him but her relationship with him exposes him to neglect, abuse and also domestic violence. She has no relationship with his father and his relationship with the applicant in these proceedings and Mr H are both, according to his recorded views in the exhibits, positive relationships that he enjoys and wants to continue.
Paragraph (c) is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother apparently has no willingness or ability to facilitate or encourage such a relationship for the child with his father and he is 14 now and she has not done that at any time in his lifetime.
Paragraph (d) is the likely effect of any changes in the child's circumstances including the effect on the child of any separation from either his parents or any other child or any other person with whom he has been living. The child presumably will not feel positive about not seeing his younger brother, but certainly I would think the effect on him of separating him from his mother, except by a supervised time, is a positive one and a benefit to him.
Paragraph (e) is the question of practical difficulty and expense of the child spending time with or communicating with a parent and whether that will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. The practical difficulty about contact with the mother is that the child needs to be protected from her behaviour, from exposure to the sort of behaviour that she is likely to inflict on him if his time with her is not supervised, and the supervision would have to be by someone who is competent to protect him. That may mean that it has to be by a psychologist or someone at a contact centre. That is a serious difficulty. It means that his time, because of the expense involved and the limited resources available for that sort of contact, will be of short duration and infrequent. That means really that the child will not enjoy any significant time with her or a significant relationship with her.
The next matter is the capacity of each of the child's parents and any other person to provide for the needs of the child. The mother's capacity is seriously compromised by her mental health problems, by her alcohol problems, by her addiction to other drugs and by the effects of those things on her. The sister’s capacity to provide for his needs, apart from the question of his need for a relationship with each of his parents, is adequate.
Paragraph (g) is the maturity, sex, lifestyle and background of the child and of either of the child's parents and any other characteristics of the child that the Court thinks are relevant. As a male child the child has a need for a close and loving relationship with an adult male role model. The mother is unable to provide such a role model. The applicant has in her household, Mr H, who on the evidence that I have seems to be an adequate person to perform that task, and there is some evidence of activities that he shares with the child which would encourage and facilitate that sort of role.
Paragraph (h), it appears it does not apply. It is in relation to Aboriginal and Torres Strait Islander children.
Paragraph (i) is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. In that regard the natural father, he is aware of being the natural father of the child, has demonstrated an inadequate attitude to the child and to the responsibilities of parenting the child. The mother has also demonstrated that she is incapable of giving priority to the child’s needs over her own needs and addictions and her health problems. I should mention there in relation to the respondent that her attitude to the child and to the responsibilities of parenthood has been adequate.
Paragraph (k) is any family violence order that applies to the child or a member of the child's family. I am not aware of any such order.
Paragraph (l) is whether it would be preferable to make the order that is least likely to lead to the institution of further proceedings in relation to the child. I think at this stage, certainly if an order for unsupervised time were made for the child to spend with his mother, there would be almost certainly further proceedings to vary the orders. I realise that that means that given the mother's failure to attempt to facilitate contact since she left the applicant's home it may be that there will not be contact. If she does make an attempt it may be that the proposals she makes are less than adequate and that there is no contact. It may be that that will lead to further proceedings by the mother but in the circumstances I think the protection and safety of the child are more important than whether there will be further proceedings.
Paragraph (m) is any other fact or circumstance that the Court thinks is relevant, and there is no matter that I think arises there.
I recognise that the aspirations that we have for our children are much higher than the sort of compromise that the child will receive under the orders I propose. But in the circumstances I think his interests are best addressed and provided for by orders that he live with the applicant, that she have sole parental responsibility for him, that he spends such time with his mother as the applicant agrees, and that such time is to be supervised by a responsible adult nominated by the applicant.

RECORDED : NOT TRANSCRIBED

COSTS

In relation to costs the usual rule is set out in sub-s 117(1) of the Family Law Act where the Act provides that in proceedings under the Family Law Act each party should pay his or her own costs. That is subject to the provisions of sub-s 117(2), which gives the Court power to make an order for costs where it is satisfied there are circumstances to justify such an order.
That power is required to be exercised having regard to the matters listed in sub-s (2A) of s 117. The first of those is the financial circumstances of each of the parties. I recognise, of course, that the Legal Aid Commission relies on taxpayers' funds to support parties in litigation and to fund legal representation for children.
The mother's position is that she is in poor financial circumstances, given the problems that she has. She has a history of serious financial difficulties and as I also said, she was bankrupted last year. In the circumstances it appears that she does not have the capacity to meet any order for costs.
In relation to the applicant, her financial circumstances are such that she was able to obtain a grant of Legal Aid. I take into account that one has to have poor financial circumstances to qualify and I presume that she is not in employment and that she has satisfied the means test to obtain that grant.
Paragraph (c) is the conduct of the parties to the proceedings in relation to the proceedings. In that regard regarding the mother I take into account that she failed to attend today and she appears to have been very uncommitted in terms of prosecuting the proceedings or at least not willing to participate.
Paragraph (d) is whether the proceedings were necessitated by the failure of a party to comply with previous orders. That does not apply.
Paragraph (e) is whether a party has been wholly unsuccessful, and the mother has been wholly unsuccessful.
Paragraph (f) relates to any settlement negotiations. I am not aware of any details of any settlement negotiations.
Those are the only matters that are relevant to the application. Given the financial circumstances of the parties I think the circumstances do not justify any order for costs.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate:

Date: 9 May 2007

[2007] FamCA 426

29 March 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Remedies