Ting and Chalmers
[2010] FMCAfam 565
•22 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TING & CHALMERS | [2010] FMCAfam 565 |
| FAMILY – Children – interim arrangements for care of children aged 4, 3 and 22 months – mother alleges father has been violent towards her – father alleges mother has been violent towards him – supervised time – best interests – independent legal representative for child – presumption of equal shared parental responsibility. |
| Applicant: | MR TING |
| Respondent: | MS CHALMERS |
| File Number: | ADC 914 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 22 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Kovacs |
| Solicitors for the Applicant: | Mead Robson Steele |
| Counsel for the Respondent: | Mr C.B. Sayer |
| Solicitors for the Respondent: | Von Doussas Legal Pty Ltd |
ORDERS
The children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2008 live with the mother.
The father spend time with the said children as follows:
(a)each Saturday commencing 24 April 2010 from 10:00am until 3:30pm; and
(b)each Wednesday commencing 28 April 2010 from 3:45pm until 7:15pm
Subject to the following conditions:
(i)The father be restrained and an injunction issue restraining him from consuming alcohol during any such period or using any illicit drug during such period or 24 hours before hand.
(ii)The father be restrained and an injunction issue restraining the father from physically disciplining any of the said children.
(iii)Each such period take place at the home of Mrs C at [address omitted] and she be present during each such period and supervise the father’s time with the said children.
(iv)The mother deliver and collect the said children from the residence of Mrs C.
The father be restrained from approaching the mother and the mother be restrained from approaching the father during the exchange of the children which is to be facilitated and overseen by Mrs C.
The parties be restrained and an injunction issue restraining each of them from denigrating or abusing or maligning the other in the presence or hearing of the said children or permitting any other person to do so.
Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Until further or other order the father is restrained and an injunction issue restraining him from approaching the mother at any other time or place.
Further consideration of the matter is adjourned to 4 June 2010 at 9:30am for further directions.
The parties have liberty to relist the matter on short notice.
IT IS NOTED that publication of this judgment under the pseudonym Ting & Chalmers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 914 of 2010
| MR TING |
Applicant
And
| MS CHALMERS |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally, immediately following the interim hearing. As an independent children’s lawyer has been appointed, it is appropriate that the reasons be transcribed.
The matter of Ting & Chalmers is listed before me today. The applicant in the proceedings is Mr Ting and the respondent is Ms Chalmers.
The parties are the parents of three children: [X], who was born [in] 2005; [Y], who was born [in] 2006; and [Z], who was born [in] 2008.
The father commenced these proceedings on 12 March 2010. His application was initially listed for a first directions hearing on 13 April 2010.
At this stage, he seeks orders that he spend time with the children overnight on each Wednesday and on alternate weekends from after school till school starts the following Monday. He also has proposals in respect of special occasions.
The mother’s position is that the three children concerned should continue to live with her. Mr Ting does not challenge that. At this stage, it is her position that the only time the father should spend with the three children should occur in the rigorously supervised confines of the [M] Children’s Contact Service.
Thereafter, she would want there to be a report, after six visits, between the father and the children, which will indicate what is the nature of the children’s relationship with their father and whether it is appropriate for the father to spend more time with the children, which need not be supervised.
On a final basis, it is her proposal that the father should spend time with the children as the parties agree or is otherwise ordered. At this interim stage, she also seeks orders that the father be restrained from consuming alcohol or illicit drugs, whilst the children are with him and that he should not be permitted to drive with the children as passengers in any car.
The parties’ positions are polarised in the extreme. In brief, it is the father’s position that he was very involved in providing care for the three children concerned. He describes himself as a hands-on father. He says he prepared formula for [Y] and [X] and assisted in changing nappies and caring for and nursing the children, particularly the two older ones.
He has some significant criticisms of the mother. Particularly, it is his case that she was not able to appropriately discipline the children. It is also his case that she had difficulty coping with caring for the three children. He also says that it was the mother who was physically violent towards him. He concedes that the parties’ relationship ended in September 2009. At this stage, the mother applied for a restraining order against him.
The father asserts that the mother was involved in representing to Centrelink that the parties had separated at an earlier stage and was, in effect, committing social security fraud. Accordingly, it is his position that the mother took out the restraining order maliciously.
In summary, Mr Ting deposes that he loves the children, and at paragraph 27 of his affidavit, he says this:
I miss my children dearly, as I’ve always had a close and loving relationship with them and have played a vital part in their upbringing until the mother placed the said restraining order against me.
It is his case that he arranged for his solicitors to write to Ms Chalmers in February, asking if he could see the three children and spend time with them, along the lines set out above.
The background to the letter was that it is his case that the restraining order had been dismissed in the [M] Magistrates Court on 26 February 2010. In that letter, Mr Ting proposed that the children could be exchanged between parties at the [M] Police Station. He also indicated that he had appropriate facilities to look after the children.
I am unsure precisely when Ms Chalmers was served with Mr Ting’s application. In any event, when the matter came to court for the first time, she had not formally responded to the application. From Mr Ting’s point of view, the matter was urgent as he had not seen or spent time with the children for a considerable period of time. He agitated for something to be done.
In those circumstances, I asked the parties to perhaps consider whether something could be arranged which was not precisely what Mr Ting wanted but would ensure that the children spent some time with their father in a safe and secure environment. That was not successful, and the proceedings were adjourned until today.
In the meantime, on 19 April, Ms Chalmers has filed an answering affidavit. She has a very different view of the parties’ relationship altogether. It is her case that Mr Ting was never a hands-on father. In particular, she categorises him as a poor and disinterested father.
She also categorises him as being a very violent person and a person without proper understanding of the needs of both herself, and these three children. It is her case that she is fearful for the children if they spend time with their father in anything other than a professionally supervised setting.
Ms Chalmers has a child from an earlier relationship. This is [N], who is now aged about 14. It is Ms Chalmers’s case that Mr Ting was violent and abusive towards [N]. Ms Chalmers says that [N] was physically abused nightly.
Importantly, it is Ms Chalmers’s position that, because of what she describes as consistent domestic violence, Families SA intervened in the family on a regular basis.
It is also Ms Chalmers’s case that Mr Ting has significant issues to do with the over-consumption of alcohol and the abuse of illicit drugs, particularly marijuana, which she says he has sold and cultivated in the past.
She has annexed to her affidavits photographs of what she says is his concerning behaviour, particularly that Mr Ting has been feeding beer to one of the children. I have seen the photographs. Mr Ting’s position is that, if one examines the photograph, the bottle in question has soda on its label and it is his assertion that what was happening was completely innocent. I am not in a position to resolve that matter.
It is also Ms Chalmers’s position that the children, [N], [X] and [Y], have been attending the Children and Adolescent Mental Health Service because of the consequence of being exposed to Mr Ting’s neglect and abuse.
Ms Chalmers’s position is also that there has been an unfortunate incident between the parties at [omitted] on 6 April 2010. She says that the father was violent towards in the presence of the children. She also has concerns that the father may have a large dog.
The father’s position is that the domestic violence restraining order was dismissed, essentially, at the instigation of the police, who were concerned that it was the mother who was telephoning the father and harassing him, not vice-versa. It is difficult for me to get to the bottom of that issue today.
Inquiries, which I have made, indicate that there is a six week wait to get into the [M] Children’s Contact Centre. That would bring the parties towards the end of May before supervised time could begin. Then, if there were to be six fortnightly visits, the provision of the report in question would not be available, probably, until some time in September. Possibly, the service could speed things up if they were willing to do so, but given the pressures under which they operate, I doubt they would be willing to do so.
As I have already indicated to the parties, the provisions of the Family Law Act, dealing with children rest on two pillars. Firstly, I have to consider the benefits that are likely to come to children from having a meaningful relationship with not just one of their parents but both. Secondly, of course, I have to ensure that children are safe and they are protected from not only the physical consequences but also the psychological sequelae of being exposed to neglect, abuse and family violence.
Clearly, the parties approach the case using each of those pillars but different ones. The father’s position, no doubt, is that I should give greater emphasis to the benefits of the children having some form of relationship with him.
He is concerned that, for a significant period of time, he has not had any meaningful interaction with the children and he is concerned that the longer this situation goes on, the more damage there will be to what he categorises as his previously good relationship with the three children.
The mother’s position, of course, is that the most important consideration is protecting the children from harm, the harm being constituted by the children being exposed to a neglectful, uninsightful and violent parent, without any proper oversight.
As I have already pointed out, the positions of the parties are polarised in the extreme. This is an interim hearing. At this stage, there is not time to have a full examination of the parties’ competing positions and for me to make definitive findings of fact. I cannot determine, at this stage, who of the parties is the more reliable witness.
At this stage, in addition, there is a lack of corroborative material to support either party one way or the other. The mother has issued subpoenas to Families SA and also to the Children and Adolescent Mental Health Service. Those subpoenas are not returnable until May.
But, necessarily, I must make some decision today. I am concerned that the longer the proceedings are delayed, the greater is the risk that the father and the children will become more and more estranged from one another.
I am also concerned about the delay in the parties utilising the children’s contact centre. Although the people who run children’s contact centres are well-motivated and they do the best they possibly can, necessarily, such centres are institutional in nature and do not always provide the most comfortable circumstances in which a parent can interact with a child and, necessarily, the time available for supervised sessions is brief, two hours per fortnight.
These are considerations that I have to bear in mind in assessing the risk that Mr Ting may constitute to these three children. I have to respond proportionately to the degree of risk involved. I cannot avoid all possibility of risk. Mr Ting may be the violent and manipulative person he has been deposed to be. Equally possible is the fact that
Ms Chalmers may have either unconsciously overstated her concerns, or perhaps more actively misrepresented Mr Ting and his past behaviour. I do not know.
But given the ages of these children, I think it is unacceptable that, for a period of about six months, possibly longer, that the only opportunity they have to spend with their father is, effectively, over a period of 12 hours. I think that is not sufficient for these three children to have a meaningful relationship with their father. I do not underestimate, I hope, the significance of the mother’s concerns. The concerns must be balanced against each other.
I asked the parties to see if they could think of some honest broker who, perhaps, could step in and supervise the father’s time with the children. He has proposed his sister, a person by the name of Mrs C. She has come to court with her brother today. She has not prepared an affidavit. The mother can think of no alternative person. Of my own volition, I have asked Mrs C to give evidence in these proceedings and I have heard her evidence.
She is a married person who lives in [omitted]. She has four children, a 20 year old, a 15 year old, a 12 year old and an 11 year old. The three youngest children are still at home with her and her husband, who is on a disability pension.
Mrs C, at the moment, is not in the paid workforce. In the past she has worked as a [omitted]. She deposes that, in the past, she and
Ms Chalmers were close, close to the extent that she was present when the parties’ oldest child was born. She concedes that there has been a falling out between her and Ms Chalmers more recently.
Her home is a standard home with a yard, and she is willing to offer an evening meal and, perhaps, lunch to the children if she becomes a supervisor of the father’s time with the children at her home. It is her case that she will not tolerate the use of marijuana in her home and I accept her assurance in that regard.
I had the opportunity to observe Mrs C at close-hand. I appreciate that the witness box is not always the best means of assessing what sort of person someone is but, at this stage, it is the only tool I have and she seemed to me to be, and I mean her no disrespect, to be a normal and average citizen. She knows the three children well, [Z] less so. The two older children have been to her home. They know their cousins.
The appeal of Mrs C’s home is that it’s available. It’s a normal setting for children and, in my assessment, I regard it as being highly unlikely that Mrs C would permit these children to be hurt or physically abused in any way.
The matter that troubles me, of course, is that, for whatever reason and there may be many reasons at play, the children may be reluctant to separate from their mother and go and see their father. They may feel that they are being disloyal to their mother. There may be other reasons. They may be fearful of their father, and the problem, of course, is that Mrs C has no formal training to deal with these particular issues. It is also likely that Ms Chalmers will perceive her to be aligned with her brother
But balancing all the competing issues in this matter and, particularly, my concerns about the children losing their relationship with their father and the difficulties that I think are implicit in these three children spending only a tiny amount of time, in the artificial circumstances of a children’s contact centre, and looking at the risk and what can be done to both assuage the mother’s concerns and protect the children, I have come to the view that Mrs C’s offer of being a supervisor of the children’s time with the father is the best option at this stage.
I am also well aware that the subpoenaed documents may reveal matters that are relevant. But I do not have those subpoenaed documents. I do not know what they contain.
I have to think about that but, at the end of the day, as I say, I cannot eliminate every single possible risk. I have to balance the speed at which the proceedings are conducted with the problems arising from any delay and the consequences of the delay for the children and the father. At this stage, I have come to the conclusion that I need to do something to reinstate some form of relationship between the father and the children, as a priority.
Given the parties’ polarised positions regarding the issues of neglect and abuse that each have made against the other, and it is, I think, pertinent for me to, again, to emphasise that the father asserts that the mother has also physically abused these children, it is apparent to me that the children need to be independently represented and that needs to be done sooner rather than later.
I should also say that, this is not a case where the presumption of equal shared parental responsibility should be applied. There are issues of family violence but, more importantly, given the polarised positions of the parties, their mistrust of one another, I think, at this interim stage, it is just clearly inappropriate for that presumption to be applied and, in this regard, I refer to section 61DA(3).
I have borne in mind the age, particularly of [Z], in terms of concerns about him being separated from his mother, who has undoubtedly been his principal provider of care since the parties separate, and I have endeavoured to fit the times in to fit in with the school commitments of, certainly, [X] and, quite possibly, [Y], in terms of his preschool commitments, but also so that they can be in bed at a reasonable time.
The aim of the orders is that the periods of contact be brief and confined to daylight hours. The father will be restrained from using alcohol or any illegal drug during the periods in question. The time will take place at Mrs C’s home and subject to her supervision.
Mrs C is to oversee the exchange of the children and to this end the father is restrained from approaching the mother during any handover. The father is also restrained from physically disciplining the children.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 22 April 2010
0
0
0