CHALMERS & TING

[2017] FamCA 159

FAMILY COURT OF AUSTRALIA

CHALMERS & TING [2017] FamCA 159

FAMILY LAW – CHILDREN – interim orders – whether children should spend more time with the mother – where the three children live with the father – where two children spend unsupervised time with the mother each week – where one child spends supervised time with the mother each week – where significant weight was given to the Family Report – where primary consideration was to protect the children from harm – where secondary considerations were views of the children and the benefit of the children having a meaningful relationship with the mother – where Court ordered all children have unsupervised time and further time with mother

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 62G(2)

APPLICANT: Ms Chalmers

RESPONDENT: Mr Ting

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 914 of 2010

DATE DELIVERED: 17 March 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

SOLICITOR FOR THE APPLICANT: Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr O'Loughlin

SOLICITOR FOR THE RESPONDENT: Adelaide Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That until further order X born … 2005, Y born … 2008 and Z born … 2006 (“the children”) live with the father.

2. That until further order the said children spend time with their mother as follows:-

   (a)       Between 4.30 pm and 7.30 pm each Thursday;

   (b)Between 10 am and 6 pm each alternate Saturday commencing 18 March 2017;

   (c)Between 10 am Saturday and 6 pm Sunday commencing 25 March 2017 and each alternate weekend thereafter.

3. That the parties will facilitate the children and each of them telephoning the non-residential parent from time to time;

4. That the parties be restrained and an injunction granted restraining each of them from physically disciplining the children or from denigrating each other in the children’s presence or allowing any other person to do so.

5. The interim proceedings are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 914  of 2010

Ms Chalmers

Applicant

And

Mr Ting

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The proceedings were first initiated by the father on 12 March 2010.  Agreement with respect to parenting arrangements was reached and a consent order made in the Federal Circuit Court on 15 July 2011.

2. On 30 May 2014, Ms Chalmers (“the mother”) filed an Initiating Application seeking an order that all existing parenting orders be discharged, that the parties have equal shared parental responsibility and that the children live primarily with her and spend time with the father each alternate weekend and for half of school holidays.

3. On 8 September 2014, Mr Ting (“the father”) filed a Response seeking that the parties share the parental responsibility for the children and that they live with each of the parties on a week about basis.

4. By his Affidavit filed 10 June 2016, the father was only prepared to support X born in 2005 (“X”) and Y born in 2008 (“Y”) spending supervised time with the mother, but specifically he did not then support Z born in 2006 (“Z”) spending any time with her.

BACKGROUND

1. The mother was born in 1972 and is aged 44 years.  At the time of the proceedings she is unemployed.  The father was born in 1970 and is aged 46 years.  His employment is uncertain but he appears to be engaged in home duties.

2. The parties commenced a relationship and cohabitation in 2004 and separated in September 2009.  Z suffers Attention Deficit Hyperactivity Disorder (“ADHD”) and Post Traumatic Stress Disorder.  His behaviour is exemplified by emotional outbursts.  He has been prescribed Ritalin medication.  The management of his ADHD by medication has historically been supported by the mother, but until recent date has not been embraced by the father.

3. The father has a child from a subsequent relationship namely, B born in 2012.  B lives with her mother and spends some time with the father in each week.  The mother has an adult child from a previous relationship.

4. The parties entered into a consent order on 15 July 2011 that provided for an equal shared care arrangement.  Notwithstanding the order, the mother’s position is that both she and the children did not cope with the equal shared care arrangement.

5. The relationship between the parties can be characterised as highly conflicted.  There are allegations and counter-allegations made by each against the other.

6. The mother alleges that the father was physically abusive towards the children, coercively controlling towards her and that he provided inadequate care.  The mother also alleges that the father and his current partner are aggressive, that there is family violence in their home and that the children are subjected to an environment of alcohol abuse and excessive marijuana consumption.

7. She considers that any reluctance as may be expressed by the children towards her is at the instigation of the father.

8. There has been significant involvement by Families SA.  There are many notifications, principally directed to the children being exposed to domestic violence.  The most recent incident is described in a letter dated 11 April 2016 from Families SA to the Family Court which describes how the mother was observed smacking Z across the side of the head with force.

9. By reference to the letter from Families SA being annexure “A” to the Affidavit of the Independent Children’s Lawyer filed 13 May 2016, the following is recorded:-

   Summary of Families SA’s Most Recent Investigation – 20 March 2016:

   On Sunday, 20 March 2016 a notifier reported to Families SA’s Child Abuse Report Line that the mother was observed to smack her son [Z] across the side of his head with force (a loud crack, slapping sound was heard).  The mother yelled at [Z] “Shut up”.  [Z] was visibly upset and appeared physically hurt holding his head in his hands.  [Z] was then observed to walk up behind the mother with his fist up and motioning to punch her in the back of the head several times (notifier did not see [Z] actually ‘punch’ his mother).  Several people witnessed the assault including several young children.  The information was assessed by the Child Abuse Report Line as a Tier 2 intake and was referred to the local Families SA Office for consideration/allocation.

10. The mother was arrested by SAPOL and charged with assault on Z.  The mother was placed on bail upon condition that there was to be no contact with Z and any contact with any children under the age of 16 is to occur only in the company of another adult.

11. On 26 March 2016 the father was advised of the current circumstances and particular the police bail and it was agreed that the children were to stay in his care until further advised by Families SA.  Z was to have no contact with his mother, nor was he to return to her care.

12. The arrangements in respect of the father exercising primary care of the children was the subject of monitoring and assessment by Families SA and generally the father’s home environment was considered appropriate for the ongoing care of the children whilst the matter was investigated generally and the criminal proceedings to be concluded.

13. On 4 May 2016 the mother’s bail conditions were varied such that she was able to spend unsupervised time with Y and X.  There has been no amendment to the orders preventing Z from spending time with his mother.

Current Orders

1. On 15 June 2016 I suspended the orders of 15 July 2011 and 17 April 2015.

2. The order provides for the parties to have equal shared parental responsibility for the three children, that the children live with the father and that until further order X and Y spend time with the mother:-

   (a)between 4.30 pm and 7.30 pm each Tuesday;

   (b)between 10 am and 6 pm each alternate Saturday commencing 18 June 2016;

   (c)between 10 am and 6 pm each alternate Sunday commencing 26 June 2016;

   (d)by telephone contact on the intervening Sunday between 4.30 pm and 5 pm with the mother to initiate the call;

   (e)that the parties be restrained and an injunction granted restraining each of them or any member of their household from physically disciplining the children or from denigrating each other or their partners around the children or from permitting any other person to do so.

3. On 9 March 2017 trial direction orders were made in order to prepare the matter for a hearing listed for trial on 17 July 2017.

Current Application

1. By Application in a Case filed 13 December 2016, the mother sought orders seeking to reinstate the suspended order of 15 July 2014 and in anticipation of the trial that there be a report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). The affidavit in support of the application advises that on 8 November 2016 the mother’s bail conditions were varied such that Y and Z were able to have contact with her pursuant to an order of any court exercising family law jurisdiction.

2. The mother does not admit that she assaulted Z as alleged.  She denies any assault and is critical of the witness who is a Families SA Case Worker and a person the mother considers is not independent.  The mother argues that X and Y are strongly bonded to her and that Z is saddened by the current arrangements which see his two siblings spending time with the mother, but he is not able to do so.

3. Hitherto, there has been no concession by the father that Z should spend time with the mother.  The father’s Response filed 24 January 2017 seeks that paragraphs 1, 4 and 5 of the Application in a Case be dismissed and that the matter remain listed for trial without adjournment.

4. He foreshadows an amendment to the final orders sought by him that would see X, Z and Y remaining in his care subject to an order that he have sole parental responsibility.

5. By his Affidavit filed 24 January 2017, the father denies the various allegations of the mother, but does not concede that the criminal proceedings in respect of Z are likely to be withdrawn.  He alleges that there is evidence which would support a finding that the children are at risk in the mother’s care and that it “is detrimental to their psychological health and harms their relationship with their mother” should they continue to live unsupervised with her. 

6. The father asserts that he provides the necessary emotional and psychological support for the children and is compliant with Z’s Ritalin medication as prescribed by the child’s paediatrician.

7. At present the children are doing well at school and there are no issues in respect of attendance.  Z is enrolled with NDIS and receives therapeutic intervention from a psychologist and a paediatrician.

8. The father disputes any assertion that his home environment is anything other than entirely appropriate, safe and protective of the children.

Family Report

1. Pursuant to the order made 15 December 2016, Ms C (“family consultant”) produced a report dated 6 March 2017.

2. The report was based on interviews conducted in early February 2017 and collateral information obtained from the children’s school.

3. In the interview, the mother denied the allegations that she had physically abused Z and dismissed the father’s belief that she had assaulted Y.

4. At this stage and in the absence of any admission by the mother, it may well be a matter for evidence as to whether she did assault Z as alleged by the various witnesses.

5. The family consultant noted the history of allegations and counter-allegations resulting in numerous notifications to Families SA.  The tenor of the notifications relate to allegations of physical discipline.

6. The CAMHS notes do not raise a concern about physical abuse of the children by either parent.  It appears that the mother has undertaken a Circle of Security Program and the family consultant records a summary of the mother’s relationship with Z as “developing warmth in her interaction [with him]”.

7. Whilst the family consultant gave significant focus to the issue of how ADHD affects Z and the willingness of the parents to confront the issue and engage in its management, for the purposes of the interim hearing I am satisfied that however motivated, the father accepts that there may be a benefit to Z in taking the appropriate ADHD medication.  Whilst the family consultant did not consider that the father’s presentation on this topic was “child focussed”, nonetheless, it appears that the appropriate medication is being administered to the child.

8. Ms D was interviewed by the family consultant and in particular, in her capacity as a supervisor of the mother’s time with Z at Christmas, but also her observations of the father’s physicality during her time as his partner and on occasion when her daughter B had been hurt in a physical altercation involving the father and his current partner.

9. If considered necessary, Ms D was prepared to supervise time between the mother and Z.  Her involvement however is complicated by a recent allegation that B has been sexually abused by Z.

10. Whilst not opposed by the father, I consider that if supervision is required it would not be appropriate for Ms D to act in that role.

11. The Deputy and Assistant Principal were interviewed by the family consultant in respect of the children’s progress at school.  The information supported the father’s contention that X was progressing well.  Concerns however were raised in respect of Y and a summary of his progress was that he was “struggling”.  Without there yet being a definitive assessment or diagnosis, a question is raised as to whether Y has Autism.

12. There were differing accounts as to how well Z managed at school. During class time he appeared to manage well, however, he reportedly displayed aggressive behaviour in the school yard.  The progress was such that consideration is being given to increasing Z’s attendance time at school.

13. In their interviews, the children appeared to relate positively to their parents.  It is recorded at paragraph 53 that “when asked about her relationship with her mother, X responded ‘fun, funny.  Dad’s funny as well’”.

14. X expressed the view that she would wish to spend more time with the father but that she should spend at least two days a week with the mother.

15. Z’s response to the family consultant in terms of his views of spending time with his mother are instructive:-

    [55][Z] entered into the conversation spontaneously as the family consultant was speaking to [X] about the time spending arrangements and the family.  [Z] interrupted this conversation and said that he was “not happy with (the way) it is because I want to see mum more”.  When asked for his ideas about time spending with the mother [Z] said he wanted to spend “every Saturday and every Sunday” with her.  [X] responded, “then we won’t be able to see dad any weekend.  Then you won’t be able to go to Adelaide with Dad”.  [Z] responded that “seven and seven (nights) would be good because that way we get the same”.

16. Z was asked about why he was not seeing his mother and he responded:-

    [56]“she slapped me on the back of the head and I fell forward”.

17. Z considered that the mother’s actions “was a joke”.

18. X appeared to have significant information and knowledge of the criminal proceedings involving Z and Y.  Her response to the family consultant was that:-

    [59]“the one with [Y] is over.  She wasn’t allowed to see [Y] – that case is closed because they didn’t have enough evidence”.

19. The family consultant was impressed with the mother’s level of affection and connection with the children.  Importantly, her affection was reciprocated.  The mother impressed as being able to respond to the children’s play ideas and their relationship “seemed spontaneous and comfortable”.

20. In particular, Z was observed to crave his mother’s affection and “sought hugs and physical proximity” to the mother.  The family consultant considered that the children had been exposed to the conflict and the negative views that each party expressed about the other.  X in particular seemed to have an inappropriate level of understanding of the criminal proceedings, the allegations and counter-allegations.  The family consultant was not able to determine whether the mother posed an unacceptable risk to the children, but that the observations of interaction

    [85c.] is that whether or not [the mother] has assaulted [Z], the relationship between [the mother] and [Z] appeared positive and affectionate.  The children and [the mother] seemed comfortable and happy in one another’s company.

21. In terms of the interim proceedings, the recommendation of the family consultant has merit namely, that until risk issues are determined the children should remain in the primary care of the father, but that their time with the mother should be increased.

Position of parties

1. The father promotes orders that would see all three children spending time with the mother pursuant to the orders of 15 June 2016 subject to Z’s time with her being supervised.

2. The mother seeks that the minimum time that the children should spend with her is represented by the current order, that Z should be included but that his time should not be the subject of supervision and should increase to include overnight time.

LEGAL PRINCIPLES

1. In respect of any parenting order it is an obligation of the Court to determine what is in the child’s best interests. The Court is assisted by regard to s 60CC(2) of the Act as to the primary considerations and s 60CC(3) of the Act as to the additional considerations. The primary considerations confirm the benefits to a child of having a meaningful relationship with both of the child’s parents, tempered by the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.

2. The additional considerations are also required to be brought to account.  Some of the additional considerations are likely to be more relevant than others.  In particular in this case the views expressed by the children are important.

3. There is little doubt that Z seeks to spend time with his mother and that he craves her attention, affection and relationship.  Y also seeks to spend more time with the mother whilst X wishes to spend some time with the mother.

4. Notwithstanding the various allegations, the current position is as set out in the order made 15 June 2016 that provides for X and Y to spend two periods of time with the mother in each week.  The father concedes that there is benefit to the children spending time with the mother providing it is safe to do so.  That requires consideration of the benefits to a child of a meaningful relationship with a parent, but also whether orders are necessary to protect the child.

5. I consider that significant weight should be given to the recommendations of the family consultant.  Z has been denied a meaningful relationship with his mother since June 2016 and in circumstances where such a relationship is likely to be in his best interests.

6. The mother’s engagement with CAMHS and the various parenting courses undertaken by her provide some support for the position adopted by the family consultant that it is likely the children, but in particular Z, would be safe in the mother’s care.

CONCLUSION

1. In the circumstances of this case it is reasonable that all three children attend upon the mother for the same time and that it not be the subject of supervision.  Moreover, each of the children would benefit from a modest extension and in that regard I propose to amend the orders of 15 June 2016 to reflect an overnight period.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 March 2017.

Associate: 

Date:  17 March 2017