Truscott-Starky and Starky

[2012] FamCA 764

FAMILY COURT OF AUSTRALIA

TRUSCOTT-STARKY & STARKY [2012] FamCA 764

FAMILY LAW – CHILDREN – where mother lives in United Kingdom – where the child the subject of these proceedings lives in Australia with his father – where the mother has not seen the child the subject of these proceedings in four years – where the child is presently five years of age – where the mother has recently commenced telephone contact with the child – where Hague proceedings were commenced and a return order made in respect of the child – where the Central Authority in the United Kingdom sought, and obtained, a discharge of that return order – where the mother suffers from alcohol addiction – where two of the mother’s other children have previously been removed from her care – where the mother contends that she is currently sober – where the mother contends that her older children have been returned to her care – where the mother seeks final orders that would see the child return to the United Kingdom and live with her – where interim orders for contact with the child sought – where orders made for time between the mother and the child, supervised by the Child Dispute Services – where report pursuant to s 65L, Family Law Act 1975 (Cth) ordered.

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Truscott-Starky

RESPONDENT: Mr Starky

FILE NUMBER: BRC 6375 of 2011

DATE DELIVERED: 20 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 20 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Ellis of Burchill & Horsey Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child R born … November 2006 (“the child”) live with the father.

2. The father have sole parental responsibility for any major long-term issue as that expression is defined in the Family Law Act (1975) (Cth) save that in respect of any such decision, the father shall:

   a.Use his best endeavours to advise the mother in writing of the decision intended to be made;

   b.Seek the mother’s written response in relation thereto;

   c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;

   d.Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

3. The child shall spend time with the mother from 2.00pm to 5.00pm on Monday 24 September 2012.

   a.Changeovers for such time shall occur at Child Dispute Services, Level 3, Family Court of Australia, Brisbane Registry;

   b.In respect of such time, the period from 4.00 pm to 5.00 pm shall be spent with the family consultant as he or she might direct for the purposes of interview by them, with or without other members of the family as he or she might direct.

4. The child shall spend time with the mother from 9.00 am to 12.00 noon on Wednesday 26 September 2012.

   a.Changeovers for such time shall occur at Child Dispute Services, Level 3, Family Court of Australia, Brisbane Registry;

   b.In respect of such time, the period from 9.00 am to 10.00 am shall be spent with the family consultant as he or she might direct for the purposes of interview by them, with or without other members of the family as he or she might direct.

5. The child shall spend time with the mother from 10.00 am to 4.00 pm on Friday 28 September 2012.

   a.Changeovers for such time shall occur at Child Dispute Services, Level 3, Family Court of Australia, Brisbane Registry.

6. The child shall spend time with the mother from 10.00am on Thursday 4 October 2012 to 4.00 pm on Friday 5 October 2012.

   a.Changeovers for such time shall occur at Child Dispute Services, Level 3, Family Court of Australia, Brisbane Registry;

7. Pursuant to Section 65L of the Family Law Act 1975 a short report shall be prepared in respect of such time spent at Child Dispute Services.

IT IS FURTHER ORDERED THAT

1. Paragraph 3 of the Application in a Case filed by the father on 14 August 2012 is dismissed.

2. The father shall serve on the solicitor for the mother, by 4.00 pm Friday 24 August 2012, sealed copies of the following documents filed by the father on 14 August 2012:

   a.Response to Initiating Application

   b.Affidavit by the father

   c.Affidavit by Ms M

   d.Application in a Case

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Truscott-Starky & Starky has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 6375 of 2011

Ms Truscott-Starky

Applicant

And

Mr Starky

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. R was born in November 2006 (“the child”).  In about August 2008, when the child was not yet two, his father left the United Kingdom where he was born and brought the child to Australia.  The circumstances in which the father relocated to Australia are controversial.  The mother alleges that the father informed her that the trip was for a holiday.  The father denies this. 

2. Those actions were the subject of Hague proceedings and a return order was made.  In the meantime, however, the child’s older siblings had been made the subject of what I will call child protection proceedings in the United Kingdom. Those proceedings devolved, it seems, from what looks to be a long-standing problem on the part of the mother with alcohol addiction. 

3. As a result of the investigations of the United Kingdom equivalent of our Department of Child Safety, an assessment was completed and, as a result of that assessment, the Department sought an order revoking the order for return pursuant to the Hague Convention. 

4. The net result is that the child has been living in Australia with his father for about four years.  During that time, there has been no face to face time between the child and his mother.

5. In the period after the child left the United Kingdom, the mother suffered from what Ms Ellis, who appears today on her behalf, described as “significant difficulties”.  Those difficulties were, it seems, all related to her problem with alcohol addiction.  The problems were plainly severe if evidenced only by reference to the fact that two older children were removed from her care. 

6. It is said by Ms Ellis on the mother’s behalf that those problems have now been addressed.  Annexed to an affidavit by the mother is a report prepared, I gather, as part of the child protection proceedings in the United Kingdom. That report includes reference to reports from Dr C and Dr W the latter of whom is connected with the Leeds Addiction Unit where he has had contact with the mother. 

7. That report indicates that the mother had started with the Addiction Unit on 7 December 2009 but “she would cancel appointments or not attend appointments”.  She was subsequently admitted in March 2010.  At that time, she had suffered a cardiac arrest.  Dr W reports, and in this is supported by Dr C that, as at the time when he was contacted for the purposes of the report – which, I note, is now some two years ago – the mother “has not consumed alcohol and has been in regular attendance at the clinic and engaged well”. 

8. The clinic had performed a liver function test in April 2010 and the results showed that the mother was, at that time, alcohol free.  The father, unsurprisingly perhaps, is suspicious that, some two years after that report, the optimism contained in that report is now founded in fact.  He says he has some concerns about the mother’s continued use of alcohol. Again, this is a controversial fact which cannot be resolved within the context of these interim proceedings.

9. Subsequently, the mother filed, in 2011, proceedings in this Court seeking final parenting orders with respect to the child.  The effect of the final orders sought by her is that the child would return to the United Kingdom and live with her and his siblings.  Ms Ellis indicates that there had been significant difficulties in finding the father and the child so as to progress those proceedings which were filed now some considerable time ago. 

10. For his part, the father denies that there ought to have been any difficulties with contacting him.  He says he notified the mother as to where he and the child were when he came to Australia. Again, this is a controversial fact, not capable of resolution within the context of these interim proceedings. 

11. I should emphasise at this point, particularly given that the father appears for himself, that the nature of the instant proceedings are interlocutory and, as a result, findings cannot be made in respect of controversial matters of fact.  Rather the Court is confined to findings about matters that are either not the subject of controversy or could not reasonably be so by reference to other evidence before the Court (see Goode v Goode (2006) FLC 93-286 and C v C (1996) FLC 92-651).

12. The mother today seeks to prosecute both her application for final relief and the Application in a Case filed by her on 30 July 2012. 

13. The latter seeks orders that the child spend time with her:

    1.… For 10 days of the September school holiday period as follows: (a) for four consecutive days as arranged in the first week of the holidays, such time to commence following family report interviews or other appointment as can be arranged with the family consultant of the Family Court of Australia at Brisbane; (b) for six consecutive days from Sunday to Friday in the second week of the holidays.

    2.That for the purposes of the above changeover is to occur at R Street Train Station at midday.

14. It will be appreciated that the Application in a Case is made in circumstances where the mother has not seen the child face to face for some four years.  As a result of orders made by me on 9 July 2012, the child has been having telephone communications with his mother. 

15. Again, the efficacy of this is the subject of controversy between the parties.  The father alleges that the mother has been somewhat spasmodic in her availability for those telephone calls.  Implicit in the submissions of Ms Ellis on the mother’s behalf is the fact that this contention is not accepted.

16. The second contextual matter of importance is that Ms Ellis informs the court that, subsequent to the proposed time between the mother and the child in September, the mother would not, as a result of her financial circumstances, be in a position to come to Australia until the June/July school holidays in 2013. 

17. At that time, it is said, she is hopeful of bringing other members of the family so as to spend time with the child.  The essence of her position today, then, is that having not spent face to face time with the child for a period of four years or thereabouts until September of this year, she would then not spend any face to face time with the child for a further period of about nine months until June/July 2013.

18. That, too, forms an important background to the application with which I must deal. 

19. Appropriately, with respect, Ms Ellis concedes on behalf of the mother that the circumstances just outlined might, in the usual course of events be productive of time that might see some time during the day slowly progressing to overnight time and perhaps, given that the length of time which has elapsed and the fact that the child was about two when he last saw his mother, that a report process would inform that progress.  That concession is properly made.

20. However, Ms Ellis goes on to submit that, because of the significant distance and unusual circumstances of this case, there is a limited opportunity for the child to bond with his mother and that ought be taken into account by the court in the orders which should be made in his best interests. 

21. In that respect, there are two other children of the mother aged eight and seven that she now cares for. Ms Ellis also contends that the child is at school and is, as a result, well used to the daily separations from his father’s full time care which that implies.

22. Ms Ellis also submits that the Court would have some concerns by reference to other s 60CC considerations, for example, the capacity and willingness of the father to maintain and promote a relationship for the child that is meaningful.  Specific reference in that respect is made to the fact that, contained within the father’s material, is reference to a desire of his and his partner to ultimately adopt the child. 

23. It will be appreciated that, obviously, many of the matters referred to by the mother as sustaining the appropriateness of orders for time that she seeks are the subject of contested factual assertions by the father.

24. In broad terms, the father’s opposition to the child spending the time for which the mother contends is based on what he would contend is a significant risk posed by her, which, in turn, results from her previous alcohol addiction and the consequent neglect he says emanates from that. He also contends that a not yet six-year-old boy has not seen his mother for about four years. 

25. In that respect, the father seeks a number of orders in his Response to the Initiating Application filed by the mother and in an Application in a Case filed by him on 14 August 2012. 

26. I note that the father is self-represented and his Application in a Case is, in effect, a response to the application filed by the mother.

27. The father’s orders seek, in effect, that the child live with him and his partner, who he refers to as the child’s “stepmother”, and that the “father and stepmother have full parental responsibility for the long term decisions relating to the health religious and educational needs of the child.” 

28. Relevantly the application goes on to seek orders that “the mother spend time with the child in an approved contact centre in Australia on a supervised basis as ordered by the court should the court deem fit” and “that the mother have contact with the child by telephone and letters with inclusion of the siblings in the United Kingdom…[N] born […] September 2003 and [E] born […] February 2005 should the court deem fit.”

29. The father also seeks an order that the child’s name be removed from the airport watch list.  I find this odd to say the least given that he (implicitly at least) contends that the mother represents a flight risk and, as a result, would wish the child’s name to remain on that list. 

30. Authority dictates that Part VII of the Act, and the mandatory requirements within it, are to be taken into account in arriving at orders which best meet the child’s best interests notwithstanding the truncated nature of the proceedings within which those orders are made.

31. In that regard I record that I am cognizant of the provisions of Part VII of the Act and what the Full Court said in Goode and Goode. It is important, I think, particularly given the father represents himself, to record that Part VII of the Act makes it mandatory for the Court to take into account a number of principles which further the Objects of the legislation.

32. In particular section 60B of the Act provides that the best interest of children must be ensured by:

    (a)ensuring that children have 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; and

    (b)protecting children from physical or psychological harm from being subjected to or exposed to, abuse and neglect or family violence; …

    ….

33. The Statutory Principles which give light and shadow to those Objects include significantly the children having:

    (2)(a) …the right to know and be cared for by both their parents regardless of whether their parents are married, separated or have never married or have never lived together;…

    …

34. A further Principle is that:

    (2)(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 to their care, welfare and development (such as grandparents and other relatives);…

    …

35. The plain intention of the legislation is that both parents should be involved in children’s lives to the maximum extent consistent with their best interests. 

36. Geographical and other considerations obviously intrude in this case such that, for example, regular face to face time is not possible.  So, too, the father would contend that the mother’s previous history suggests that a cautious approach commensurate with protecting the child from any risk posed by his mother ought intervene. 

37. Against that background it is necessary, though, to point out that the mother hasn’t seen her child for some considerable period of time.  There is good evidence to suggest that she was addressing what is plainly a significant problem but I note that that evidence is now some two years old. There is little evidence beyond that which the mother contends herself which indicates that the optimistic prognosis and process indicated in that report is ongoing. 

38. Caution should be the byword by which the best interests of the child are met in this particular case by reference not only to the mother’s past history but also to the fact that a yet young child just beginning his schooling hasn’t seen his mother for a long time and that various difficulties might attend that time as a result. 

39. However, this child, no less than any other child, has the right to know the only mother that he will ever have.  That being the case, it is important to bear in mind what the Objects and Principles of the Act say whilst giving due regard to all of the other circumstances to which I have just referred. 

40. In my judgment the balancing of those considerations demands that the child should spend some time with his mother during the September school holidays but that I should allow caution to dictate the means by which that time is facilitated. 

41. As a result, I have determined that the orders for time should be supervised pursuant to section 65L of the Act by a Family Consultant and that that process should be reportable.

42. I accept the argument of Ms Ellis that, in the normal course of events, there would be a build up of time – all else being equal – from daytime through to overnight time over a progression with perhaps a report process.  The exigencies of distance, and to some extent time, mean that a less than ideal set of circumstances pertain to any such build up of time in respect of the child.

43. Nevertheless, I consider that a graduated process is best for him. With that in mind, I propose to order time over a graduated process during the September school holiday period and I intend to provide for the family consultant to conduct, via the section 65L process to which I have earlier referred, a monitoring of that time.

44. I order accordingly.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 August 2012.

Associate: 

Date:  28 August 2012