Chalmers and Chalmers - [2015] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHALMERS & CHALMERS

[2015] FCCA 2103

Catchwords:
FAMILY LAW – Parenting – Children aged 12 & 10 living in different households – where the father’s extreme anger over the marriage breakdown has turned the 10 year old against the mother and the 12 year old against the father – where the children should be reunited in the mother’s care – difficulty of ensuring that the 10 year old remains with the mother while he adjusts to the change when the parties live in a country town.

Legislation:

Family Law Act (Cth), ss.60CC, 61DA, 65DAA

Cases cited:
Mazorski & Allbright (2007) 37 Fam LR 518

Applicant:

MS CHALMERS

Respondent:

MR CHALMERS

File Number:

NCC 1484 of 2014

Judgment of:

Judge Terry

Hearing dates:

29 & 30 June & 1 July 2015

Date of Last Submission:

1 July 2015

Delivered at:

Armidale

Delivered on:

7 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Bridge Street Lawyers

The Respondent:	In person
Solicitor Advocate for the Independent Children’s Lawyer	Mr Broadhurst
Solicitors for Independent Children’s Lawyer:	Legal Aid NSW

ORDERS

(1)The mother shall have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004 (“the children”);
(2)The children shall live with the mother;
(3)The children shall spend no time and have no communication with the father;
(4)Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from:
a)removing or attempting to remove the children from the mother’s care;
b)attending at the children’s schools.
c)removing or attempting to remove the children from their school or from any extra-curricular activity, hospital, medical assessment or counselling session and from the care of any person in whose care the mother has placed them.

IT IS NOTED that publication of this judgment under the pseudonym Chalmers & Chalmers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1484 of 2014

MS CHALMERS

Applicant

And

MR CHALMERS
Respondent

REASONS FOR JUDGMENT

Introduction

Ms Chalmers and Mr Chalmers separated in August 2013. Until April 2014 their children X and Y lived with the mother but currently X, 12, lives with the mother and Y, 10, lives nominally with the paternal grandparents but on weekends at least with the father.
The father is extremely angry with the mother over the marriage breakdown and harbors a vitriolic hatred for her and he has exposed Y to this anger and hatred. Y is convinced that the mother is a slut who has AIDS and whose new partner is diseased.
As a result Y is refusing to see the mother and X, who is strongly attached to the mother, is refusing to see the father.
The mother seeks orders that both children live with her so that the siblings are reunited and so that Y is rescued from the harm being inflicted on him by the father. She proposes that…

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 Chalmers and Chalmers

Details

AGLC: Chalmers and Chalmers [2015] FCCA 2103
Case: [2015] FCCA 2103
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the matter of *Chalmers and Chalmers*, heard by Judge Terry, the dispute concerned the parental responsibility and living arrangements for two children, X and Y. The mother sought sole parental responsibility and orders for the children to live with her, while the father's position was implicitly opposed to these arrangements.

The court was required to determine the children's best interests, considering various factors outlined in section 60CC(3) of the *Family Law Act*. Key issues included the children's views, the nature of their relationships with each parent, each parent's efforts to spend time with and make decisions about the children, the likely effect of any change in circumstances, and each parent's capacity to provide for the children's needs. The court also had to consider the father's alleged negative influence on Y and the mother's historical primary carer role.

Judge Terry's reasoning focused on the children's expressed wishes and the impact of the father's behaviour. X clearly wished to live with his mother and have no contact with his father, a view the court gave significant weight to, particularly given the father's attitude towards the mother. Y's hostile views towards the mother were attributed to information fed to him by the father, leading the court to discount his expressed wishes. The court found that while the mother had historically been the primary carer and had a good relationship with both children, the father's relationship with the children, especially X, had become unhealthy and was influenced by his own negative views of the mother. The court also considered the father's limited efforts to spend time with the children and his focus on resuming a relationship with the mother rather than the children. The proposed change for X to live with the father was deemed destructive, contrary to his wishes, and psychologically damaging. Conversely, a change for Y to live with the mother was seen as potentially beneficial, reuniting him with X and removing him from the father's negative influence. The court found the mother capable of caring for the children, noting her current employment situation and dismissing unsubstantiated allegations made by the father regarding her mental health and a third party in her household.

Consequently, the court ordered that the mother have sole parental responsibility for X and Y, that the children live with the mother, and that they spend no time and have no communication with the father. An injunction was also granted restraining the father from removing the children from the mother's care, attending their schools, or removing them from their school, extracurricular activities, medical appointments, or the care of persons with whom the mother had placed them.

Orders

Orders of the court

(1) The mother shall have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004 (“the children”);

(2) The children shall live with the mother;

(3) The children shall spend no time and have no communication with the father;

(4) Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from:

a) removing or attempting to remove the children from the mother’s care;

b) attending at the children’s schools.

c) removing or attempting to remove the children from their school or from any extra-curricular activity, hospital, medical assessment or counselling session and from the care of any person in whose care the mother has placed them.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with or communicate with the children or make decisions about the children. The father allowed the children to go with the mother at separation in August 2013 and while he spent some time with them after this, his primary interest was in seeing the mother and trying to get her to resume the relationship. The father on his own efforts continued to make limited efforts to spend time with the children in early 2014 and when he did make an effort it only seemed to be in regard to Y. It is regrettable that the mother did not act sooner to get Y back into her care but I am satisfied that this was very likely because of the exigencies around getting legal advice and perhaps because of a mistaken belief that she could persuade the father to be reasonable rather than because of any lack of interest in Y. I must consider the extent to which each party has financially supported the children. This is not a relevant issue in this case. I must consider the likely effect of any change in the children’s circumstances. The father proposed a change for X in that X would live with him. This would be a wholly destructive change for X even if he could be made to do it. It would be contrary to his wishes and it is extremely unlikely that he would settle. It would force him to be exposed to the negative views the father holds about the mother which X rejects and this would be psychologically damaging for him. The mother proposed a change for Y in that Y would live with her. If Y accepted this outcome then the change would be beneficial for him. He would be reunited with X and would be removed from exposure to the poisonous negative views the father has about the mother which must be causing him extreme mental anguish and he would have the opportunity to resume a loving relationship with the mother. I must consider the practical difficulty and expense of children spending time with a parent. Both parties live in (omitted) and this is not an issue in the case. I must consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs. The mother is parenting X capably on a day to day basis. He is attending school regularly. The mother is no longer working at (employer omitted) and she is not required to do shift work in her current position. Nothing adverse is known about Mr K which would make him unsuitable to live in the same household as the mother and the children. The father alleged that Mr K had a criminal record but there was no evidence of that. He alleged that Mr K may be diseased but there was no evidence that Mr K had any concerning health problems. In his affidavit filed on 29 June 2015 the father expressed the view that the mother had borderline personality disorder and said that he believed that the maternal grandmother suffered from the same condition. There is no basis for such beliefs. The mother has had some mental health issues. She has suffered from depression and saw a doctor in (omitted) and was prescribed Zoloft. There was no evidence however that the mother was suffering from any mental health issues which impacted on her capacity to care for the children.

Ratio Decidendi

Legal Principle Established

I must also have regard to additional considerations in s.60CC (3). The first is the views of the children and the weight to be given to these views. The children’s views are clear. X wants to live with his mother and wants nothing to do with the father and Y is hostile to the mother. I would not be inclined to override X’s views given the father’s attitude to the mother. X told Ms K that he wanted Y to return to live with him and the mother. Y’s views are based on a false belief about the mother and I cannot place weight on his views in determining what should happen for the children. I must consider the nature of the relationship of the children with each of their parents and with any other person including a relative of the child. At present X has a good relationship with the mother and Y has no relationship with her but that is not the end of the matter. The mother was historically the children’s primary carer and I am satisfied that they had a good relationship with her historically. X continues to have a good relationship with her, and there was no evidence that Y was ever abusive to the mother prior to the father unilaterally retaining him in April 2014, even after the separation in August 2013. Y has a strongly negative view of the mother at present as a result of information fed to him by the father. The mother’s opinion was that her relationship with Y could be easily restored if an order was made that he live with her. She said that he was responsive to her the night she went to Mr P’s place and that the first visit supervised by a third party went well. It is very difficult for me to assess whether the mother is being unduly optimistic and whether other pressures such as exposure to Mr K might cause Y’s placement with the mother to fail. X has no relationship with the father at present and as mentioned earlier, while Y does have a relationship with him it is not a healthy relationship. It depends on Y accepting and acting on the father’s hostile and negative view of the mother. The mother claimed that historically X was less close to the father than Y. The father disputed this but both the father and the mother allowed X to not spend time with the father in the months prior to the father retaining Y, suggesting some tacit agreement between them that X should not be forced to spend time with the father which gives some credence to the mothers view about X’s relationship with the father historically. Ms M, a counsellor who saw X in October 2014 reported X as saying:My Dad was always angry and I don’t think he liked me very much. He only liked Y.[9][9] Family Report paragraph 114 However it is difficult to form a concluded view about the father’s relationship with X historically because so much may have been skewed by the father’s hostile behaviour since separation. It was the mother’s case that the maternal grandparents had historically had a reasonable relationship with the children. The maternal grandmother gave evidence at the hearing and said that this was also her view.