CHAPMAN & TIMMS - [2017] FamCA 982

FAMILY COURT OF AUSTRALIA

CHAPMAN & TIMMS

[2017] FamCA 982

FAMILY LAW – CHILDREN – Parental responsibility – Where there is one child of the parties’ relationship – Where the child has expressed a desire not to spend time with his father – Where it would not be in the child’s best interests for the parents to have equal shared parental responsibility – Where the mother makes allegations of the father engaging in acts of family violence towards her – Court makes no finding of family violence – Consideration of section 60CC of the Family Law Act1975 (Cth) factors – Where there is a short term risk in compelling the child to spend time with his father – Where the long term consequences of the child permanently losing his relationship with his father justifies the orders made – Orders made for the child to spend time with the father every second week from 9.00am Saturday to 9.00am Monday or the commencement of school – Orders made for block holiday time – Orders made to facilitate the parties agreeing to that time increasing – Court cautions that, given child’s psychological fragility, coercive force should not be applied to enforce the orders for the child to spend time with his father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65Y
Evidence Act 1995 (Cth) s 69ZT

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3

B and B (1993) FLC 92-357 Cotton & Cotton(1983) FLC 91-330 G & C [2006] FamCA 994 Finton and Kimble[2017] FCWA 106 Godfrey & Sanders [2007] FamCA 102 Jones v Dunkel (1959) 101 CLR 298 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 McGlen-McLeod v Galloway [2012] NSWCA 368 Moose & Moose (2008) FLC 93-375 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
APPLICANT:	Ms Chapman

RESPONDENT:

Mr Timms

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Victoria

FILE NUMBER:

MLC

582

2012

DATE DELIVERED:

4 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

McClelland J

HEARING DATE:

7, 8, 9, 10, 11 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Thompson

SOLICITOR FOR THE APPLICANT:

Ocean Legal

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

DLT Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Victoria

Orders

THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for the child B born 19 August 2003 in relation to the following long-term issues:-
(a)       The child's education (both current and future); and
(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;…

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 & TIMMS

Details

AGLC: CHAPMAN & TIMMS [2017] FamCA 982
Case: [2017] FamCA 982
Decision Date: 4 December 2017

CaseChat Overview and Summary

In *Chapman & Timms*, heard by McClelland J, the dispute concerned parenting orders for a child of the parties' relationship. The mother alleged family violence by the father, though no findings of family violence were made. The child had expressed a desire not to spend time with his father, and the court considered whether it would be in the child's best interests for the parents to have equal shared parental responsibility.

The court was required to determine the appropriate parenting arrangements, specifically addressing the child's expressed wishes, the mother's allegations of family violence (which were not substantiated), and the overarching consideration of the child's best interests under section 60CC of the *Family Law Act 1975* (Cth). The court also had to balance the short-term risk of compelling the child to spend time with his father against the long-term consequences of the child permanently losing his relationship with his father.

McClelland J reasoned that while there was a short-term risk associated with compelling the child to spend time with his father, the long-term benefit of maintaining that relationship justified specific orders. The court ultimately made orders for the child to spend time with the father every second weekend and for block holiday time, with provisions to facilitate an increase in this time. The court also cautioned that coercive force should not be applied to enforce these orders, given the child's psychological fragility. The mother was granted sole parental responsibility for the child's education and health, subject to consultation and genuine effort to reach joint decisions with the father, with the mother having the final decision if agreement could not be reached. Injunctions were also made restraining the parties from organising personal counselling for the child or changing his school enrolment without the father's prior written consent. In all other respects, the parties were to have shared parental responsibility.

Orders

Orders of the court

THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for the child B born 19 August 2003 in relation to the following long-term issues:-

(a) The child's education (both current and future); and

(b) The child's health;

on condition that:-

(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.

That notwithstanding order 1(b) of these orders, the parties be restrained by injunction from organising, or otherwise allowing or permitting the child to be engaged in personal counselling without the prior written consent of the father.

That notwithstanding order 1(a) of these orders, the parties be restrained by injunction from changing the child’s enrolment at Z School without the prior written consent of the other party or by order of the Court.

In all other respects, the parties shall have shared parental responsibility for the child.

The child shall spend time with the father as follows:

(a) during school terms:-

Each alternate weekend from 9.00am on Saturday until the commencement of school on the following Monday (or 9.00am if not a school day);

(b) During each of the three mid-year holidays for one week to commence at 9.00am on the first Saturday of the said holiday and to conclude at 6.00pm on the second Saturday;

(d) For one week commencing 3.00pm on New Year's Day 2018 to 3.00pm on 8 January 2018 and thereafter in accordance with order 5(a);

(e) As and from the 2018/2019 long summer holidays, for one half of the said summer holidays at times to be agreed and in default of agreement for the first half of the said holiday period commencing 2018/2019 holiday period and in each alternate year thereafter provided that, in any year, the holidays will be calculated from the first Saturday of the school holiday period being the first day and the Saturday immediately preceding the commencement of the new school term shall be the last day of the holiday period.

(f) As and from 2018, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and each alternate year thereafter and in 2019 from 3.00pm on Christmas Day to 3.00pm on Boxing Day and each alternate year thereafter;

(g) On the father's and the child's birthday each year for three (3) hours (if a school day) with such time to commence immediately after school if the child is living with the mother on each of those days;

(h) On the father's and the child's birthday each year for four (4) hours (if a non-school day) and in default of agreement such time to commence at 10.00am if the child is living with the mother on each of those days; and

(i) From 9.00am until 5.00pm on Father's Day should that day not fall during the father's time with the child.

That the father's time with the child shall be suspended during the following periods:-

(a) On Mother's Day from 9.00am to 5.00pm each year;

(b) From 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2018 and each alternate year thereafter;

(d) On the mother's and the child's birthday each year for three (3) hours (if a school day) commencing immediately after school if the child is spending time with the father on each of those days;

(e) On the mother's and the child's birthday each year for four (4) hours (if a non-school day) commencing at 10.00am in default of agreement if the child is spending time with the father on each of those days

Notwithstanding the foregoing provisions, the child shall spend such further and other time with the father upon such terms and conditions as the parties may agree in writing.

As from commencement of school term in 2018, the operation of paragraph 5(a) shall be suspended during all periods of school holidays.

That the child live with the mother at all other times.

10.

That all handovers occur as the parties may agree but in default of agreement inside the Suburb I Library.

11.

That the father be restrained from requesting the child to engage in communication with him by way of emails, diaries and text messages, mobile phone or skype communication outside of the previous order save that if the child wishes to communicate with the father outside of those times, the mother will not unreasonably refuse him permission to do so.

12.

When the child is in the father’s care the father shall not unreasonably refuse the child permission to contact his mother by way of emails, diaries, text messages, mobile phone or Skype communication as and when he wishes.

13.

That the parties ensure that at all times the child is known by his full name being B Chapman Timms.

14.

That the mother and father forthwith do all things necessary to re-engage in family therapy with a therapist agreed between the parties and ensure that the child and the parties attend as directed and at the discretion of the therapist save that the period of the therapy shall be limited to a period of six months from the date of this order unless it is extended with the consent of the parties upon such recommendation by the therapist with the cost of the therapy to be shared equally between the parties.

15.

For the purpose of order 14 the mother shall, within seven days of the date of these orders, provide the father with a list containing the names of three appropriately qualified therapists and the father shall choose from that list, one therapist to provide the therapy referred to in order 14.

16.

That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.

17.

Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.

18.

The mother may authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.

19.

That the mother shall authorise the school at which the child attends to:

(a) provide the father at his expense copies of all school reports, NAPLAN results, school notices and order forms for school photographs;

(b) permit the father to attend for parent/teacher interviews (separately to the mother and in the absence of the child);

(c) permit the father to otherwise meet with the child’s teachers or school authorities to discuss the child’s education and welfare subject to such meeting taking place outside school hours; and

(d) service on the school with a copy of this order by the mother shall be taken to stand as authority for the purpose of this order.

20.

That save as provided for in order 19 and save for delivering the child at the school gates at the conclusion of his time on Monday, the father is otherwise restrained from attending at the child’s school unless there is agreement reached between the mother and father on this issue with the assistance of the therapist engaged pursuant to this order.

21.

Each of the parties are restrained from abusing, denigrating or insulting the other in the presence of the child or allowing anyone else to so do and from discussing the proceedings with or in the presence of the child.

22.

That the parents are at liberty to provide a copy of Family Reports and Therapy reports, Court Judgments and Final Orders prepared in these proceedings to the therapist engaged pursuant to this order.

23.

That the father be restrained from leaving the child unattended overnight during his time with the child.

24.

All previous parenting orders be discharged.

25.

All applications are hereby dismissed and removed from active pending cases list.

26.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled "Parenting orders - obligations, consequences and who can help", a copy of which is annexed to these Orders.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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