Chapman and Timms - [2014] FamCA 316

FAMILY COURT OF AUSTRALIA

CHAPMAN & TIMMS

[2014] FamCA 316

FAMILY LAW – CHILDREN – Final Orders – parties’ proposals in relation to time spent with the father were aligned – parental responsibility – father sought equal shared parental responsibility while mother sought sole parental responsibility with the child’s time with the father to be suspended for a period of six months – experts expressed serious concerns in relation to the psychological welfare of the child – child described the mother as “evil” – child’s behaviour towards the mother the result of outside influence – father demonstrated manipulative behaviour – best interests of the child – meaningful relationship – risk of alienation – child’s time with the father to be suspended for a period of four months – mother to have sole parental responsibility for the child’s health and education but required to consult with the father – parties have shared parental responsibility in relation to other matters.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DA, 65DAA, 69ZN, 69ZT
Telecommunications (Interception) Act 1979 (Cth)
Evidence Act 1995 (Cth) s 138

Maluka & Maluka (2011) FLC 93-464
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Chapman

RESPONDENT:

Mr Timms

FILE NUMBER:

MLC

582

2012

DATE DELIVERED:

19 May 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

22 November 2013, 4 December 2013 and 24, 25 and 26 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Baker Jones

COUNSEL FOR THE RESPONDENT:

Mr Atkinson

SOLICITOR FOR THE RESPONDENT:

Amad & Amad

Orders

The mother shall have sole parental responsibility for the child J CHAPMAN-TIMMS born … 2003 in relation to the following long-term issues:-
(a)       The child’s education (both current and future);
(b)       The child’s health;
on condition that:-
(c)The mother will contact the father in writing and provide her views about any such issue;
(d)       The mother shall consult with the father with regard to any such issues
(e)The mother and the father will make a genuine effort to come to a joint decision about any such issues; and
(f)If no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of the decision.
In all other respects the parties shall have shared parental responsibility for the child.
The father shall spend time with the child during school terms as follows:-
(a)Each alternate weekend from after school on Friday (or 3.30pm if not a school day) until the commencement of school on the following Tuesday (or 9am if not a school day);
(b)During each of the three mid-year holidays for one week to commence at 9am on the first Saturday of the said holiday and to conclude at 6pm on the second Saturday;
(c)From 3pm on Christmas Day to 3pm on Boxing Day in 2014;
(d)For one week commencing…

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 Chapman and Timms

Details

AGLC: Chapman and Timms [2014] FamCA 316
Case: [2014] FamCA 316
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders sought by Ms Chapman (the mother) and Mr Timms (the father) regarding their child, J Chapman-Timms. The dispute centred on whether the parents should have equal shared parental responsibility, as sought by the father, or sole parental responsibility for the mother, with a proposed six-month suspension of the child's time with the father. Expert evidence from a psychologist and a family consultant raised significant concerns about the child's psychological welfare, noting the child described the mother as "evil" and that the child's behaviour towards the mother appeared to be influenced by external factors, while the father exhibited manipulative behaviour.

The court was required to determine the best interests of the child, considering the importance of a meaningful relationship with both parents and the risk of parental alienation. The court also had to assess the impact of the child's concerning behaviour and the parents' respective parenting proposals in light of the expert evidence. The legal framework applied included various sections of the *Family Law Act 1975* (Cth) concerning parental responsibility, the child's best interests, and evidence admissibility.

The court's reasoning focused on the paramount consideration of the child's welfare. It acknowledged the expert concerns regarding the child's psychological state and the potential for alienation. Ultimately, the court ordered that the mother have sole parental responsibility for the child's health and education, requiring consultation with the father on these matters, with the mother having the final decision-making power if agreement could not be reached. In all other respects, the parties were to share parental responsibility. The court also ordered a suspension of the father's time with the child for a period of four months, with detailed provisions for future time spent with the father thereafter.

Orders