Ting and Chalmers (No.2) - [2010] FMCAfam 1270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TING & CHALMERS (No.2)

[2010] FMCAfam 1270

FAMILY LAW – Interim arrangements for care of children aged 5, 4 & 2 – high conflict family – mother alleges father violent and anti-social – father alleges mother has fabricated concerns – issue unable to be resolved at interim stage – at earlier stage supervised time ordered – matter fixed for trial – family report ordered – family report recommends extension of time.

Family Law Act 1975, ss.60CC

Applicant:

MR TING

Respondent:

MS CHALMERS

File Number:

ADC 914 of 2010

Judgment of:

Brown FM

Hearing date:

22 October 2010

Date of Last Submission:

22 October 2010

Delivered at:

Adelaide

Delivered on:

22 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms K. Kovacs

Solicitors for the Applicant:

Mead Robson Steele

Counsel for the Respondent:

Mr M. Boehm

Solicitors for the Respondent:

Mason Westover Homburg

Counsel for the Independent Children’s Lawyer:	Ms A. Du Barry
Solicitors for the Independent Children’s Lawyer:	Legal Services Commission

ORDERS

UPON NOTING that orders 3 and 6 of the order of 22 April 2010 and orders 14, 15, 17 and 18 of the order of 4 June 2010 remain in force.

The orders made on 22 April 2010 and 4 June 2010 are varied so that the father spends time with the children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2008 as follows:
(a)on alternate Fridays commencing 22 October 2010 from 4.00 pm until 7.30 pm; and
(b)on alternate weekends commencing 30 October 2010 and 31 October 2010 on each Saturday and Sunday from 9.00 am until 6.30 pm.
In the event that the mother provides the father or his legal representative with a medical certificate indicating the child [Z] is unwell to the extent that he is unable to spend time with the father this day (22 October 2010) the order will be suspended so far as [Z] is concerned for this Friday only.
The orders providing for Ms C to supervise the father’s time with the children are discharged.
The mother or her nominee deliver the children to the father at the [M] Police Station and the father return the children to the mother or her nominee at the [M] Police Station at the beginning and end of each period referred to in these orders or at such other location as the parties mutually agree.
To this end each party is to enroll at the [B] Children’s Contact Centre to see if they are suitable to the Centre as a handover location.
Until further or other order, the father be subject to the following conditions:
(a)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; and
(b)The father be restrained and an injunction issue restraining the father from physically disciplining any of the said children.
Pursuant to section 91B of the Family Law Act 1975, Department for Families & Communities (Families SA) is invited to intervene in these proceedings.
The matter is adjourned to 9 December 2010 at 9.30 am for further consideration of Christmas and other festive dates during the block school holiday time, with the parties to file and serve a short affidavit addressing any issues arising between them regarding this time on or before close of Registry filing on 2 December 2010.

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 for judgment were delivered orally immediately following the interim hearing. The reasons commence with my decision in respect of an adjournment application made on the mother’s behalf. As the case remains highly controversial and is proceeding to hearing, it is appropriate the reasons be transcribed and released to each of the parties.

Adjournment application

I am not disposed to adjourn the matter. I think that the interim hearing needs to proceed this morning. I note there is, apparently, on the mother’s instructions to her counsel, some outstanding complaint she has made to the [B] Police Station.
There have been many complaints of misconduct in this matter, against the father in particular, and more recently against his sister, who has been appointed as the supervisor of the father’s time with the children.
As recently as 10 September 2010, Families SA wrote to the father in respect of a notification that Ms C, who is the supervisor, had physically abused the children concerned, during an access visit. Marks were apparently observed on one or all of the children, which the relevant social worker who investigated the matter categorised as being marks which appeared to arise from the children’s play.
The children were apparently interviewed by Families SA and they make no disclosure of any physical abuse by Ms C. On that basis, the senior practitioner at the child safety team at [M], Ms H, referred the mother and the children to what is described as a family-based home support program. Further, Ms H wrote that:
Families SA note that you are still involved –
that is, Mr Ting and Ms Chalmers –
in the Family Law Court process and wish you well in finalising matters. At times, as has been the case with many other families, your children have appeared to have been coached on what to say to authorities. Please be very careful not to subject to the children to adult views and issues.
Of concern in this matter is the fact that Mr M interviewed the oldest child concerned, that is - and I will turn up Mr M’s report – [X]. [X] was interviewed on 29 August 2010. She apparently told Mr M that she liked seeing her father and further disclosed that Mr Ting had smacked the two younger children, [Y] and [Z]. That was something she repeated when she was interviewed by Mr M at her father’s home a few days later. [X] herself did not complain of being smacked.
Mr M was unclear what the value of this information was, but he had a sense of the children being coached or influenced in talking about this. He opined that this might be a product of them speaking about it before. He also cautioned that a forensic child protection interview fell outside his remit.
So, that issue of the children being smacked, as reported by [X], has been reported to Mr M. It is a matter that has been raised with Families SA, and I have already indicated what was the result of that, and more recently it seems to be the case that Ms Chalmers has made a complaint to the police.
I am concerned that that complaint will take some time to be resolved, and it is potentially detrimental to the children, particularly in terms of their relationship with their father, to delay these proceedings whilst the police take their independent course, which will be subject to their own time disciplines, which may necessarily, if other business arises for the police, take some time to be resolved.
In the overall context of this case, I do not think it would pose an unacceptable risk to these children if the matter proceeds today, so for those reasons I will deal with the matter today. I should say that that is the view propounded by the Independent Children’s Lawyer.

Interim hearing

The matter of Ting & Chalmers is listed before me this morning for interim hearing. The applicant in the proceedings is Mr Ting and the respondent is Ms Chalmers. The parties are the parents of three children. They are [X], who was born [in] 2005, [Y], who was born [in] 2006, and [Z], who was born [in] 2008.
The proceedings have been on foot for some time. The father commenced these proceedings in March of 2010 and they have now been fixed for final hearing in February of next year. Three days have been put aside for the hearing of the matter.
In June of 2010, it was ordered that a family report be prepared in the matter. That report was prepared by Mr M and was released to the parties around the middle of October this year.
It is a difficult matter for a number of reasons. Essentially, it is the mother’s position that Mr Ting is an extremely violent and anti-social person. It is her case that, during the parties’ relationship, Mr Ting was violent towards her and, in fact, raped her on one occasion. It is also her case that Mr Ting has been violent towards the children and to another child whom Ms Chalmers has as a result of an earlier relationship.
Mr Ting’s position is easily put. It is his position that he is a loving and involved parent and, during the parties’ relationship, he was involved in providing for the children in all manner of ways. It is his position that, for reasons which are unclear to him, the mother is intent on ensuring that the children are deprived of a worthwhile and loving relationship with him and, because of that, she is prepared to make very serious allegations against him which are unfounded in reality.
The matter came before me for the first time, I think, for any substantive application in April of this year. No doubt, at that time, I explained to each of the parties that, at the interim stage, it is very difficult, if not impossible, for a fact finder such as myself to make findings of fact on the basis of reading affidavits alone without there being cross-examination of the parties themselves.
Because of the serious allegations made, I directed that the children concerned be independently represented in these proceedings, and I am grateful that the Legal Services Commission has appointed

Mr Seymour to represent the interests of the three young children concerned, and it is Mr Seymour who has arranged the family assessment report by Mr M.
Because of the serious allegations, I determined that the father’s time with the children should be subject to supervision pending more investigations of the matter. Accordingly, the children have been spending time with their father under the supervision of his sister,

Ms C, who lives in [omitted].
I also made injunctions restraining Mr Ting from physically disciplining the children or drinking alcohol during any period of time the children were in his care, or in the period immediately following.
The orders were modestly varied on 4 June 2010, and, since that stage, the father has been seeing the children for fairly short periods of time during the day. At this stage it is his position that the Court ought to increase the time he spends with the children and discharge the requirements for supervision.
The mother reiterates her concerns about Mr Ting. She reiterates her view that he is a violent person and as such likely to be a detrimental influence on these children. I am also informed that the mother has complained to police about how Ms C has dealt with the children, in particular that Ms C has inappropriately disciplined the children.
As I indicated earlier, during the mother’s adjournment application, Families SA have written to the father indicating they do not have concerns about Ms C and, in fact, that the mother and the children have been referred to a support program.
I am unclear precisely why that is so, but I share Ms Du Barry’s view – Ms Du Barry is the barrister briefed by the Independent Children’s Lawyer – that I may be able to infer tangentially that the department has some concerns about potential emotional abuse of the children because they are becoming involved in the very acrimonious conflict between their parents and the mother is a factor in this.
Anyway, notwithstanding the letter from Families SA, I am informed by Mr Boehm, who appears for the mother, that his client has made a complaint to the police at [B] about these matters, and it is being investigated by police. For the reasons I have already provided, I am not going to adjourn the proceedings, at this stage, because of that investigation.
Mr M has written a report which is 18 pages long. He was able to visit the children at both their father’s home – that may be incorrect; it might have been at Ms C’s home, but certainly he has seen the children with their father in a domestic, as opposed to a clinical, setting, and certainly he viewed and observed the children at their mother’s home.
For obvious reasons, he did not interview [Z]. He did, however, interview [X], who was aged, when Mr M saw her, five years and one month. He also interviewed [Y], who was around four years of age when Mr M spoke to him.
Of concern is that both [X] and [Y] indicated that the boys were smacked by their father, and although I cannot be sure, this seems to be the gravamen of the mother’s complaint, which seems to post-date Families SA involvement and the investigation by the Police about

Ms C and the father’s alleged improper conduct towards the children.
Now, I note the ages of these children, and I think it is of some importance and some moment that when Mr M observed the children interacting with their father he said this:
“All three children interacted with their father in a relaxed, familiar and comfortable manner. They moved freely through the house. Generally, they were well behaved. None of the children displayed any behaviour which suggested anxiety or fear. They generally followed any instructions or directions given to them by their father”.
In determining this difficult matter I have to, of course, bear in mind that the best interests of these three children are the paramount or most important consideration. In determining how these children’s interests will be best served, I have to pay heed to the matters set out in section 60CC of the Family Law Act, particularly what are described in the legislation as the primary considerations. There are two of those.
Firstly, I have to have regard to how the children are likely to benefit from having a meaningful relationship with not one but both of their parents. Secondly, I have to consider how the children can be preserved from coming to either physical or psychological harm as a result of being exposed to neglect, abuse and family violence.
Accordingly, the legislation calls for me to balance two considerations which are very often difficult to balance. The father, for obvious reasons, points to the fact that at this stage he is only having a very short period of time with the children, and necessarily this must mean that he does not have a meaningful relationship with each of them. The mother points to protective concerns.
In terms of how the children are to be protected, I must make some sort of assessment of the risk both Mr Ting and Ms C pose to these children. If I am of the view, at this interim stage, when all evidence is not to hand, that they represent an unacceptable risk to these children, I must take proportionate steps in respect of the degree of risk.
Mr M was, of course, concerned about how the children [X] and [Y] reported to him, but he was unclear about what the value – and that is the word he uses – of these reports was. He noted that the children reported these matters to him in a matter-of-fact way. Mr M had a sense that the children were being coached, or perhaps influenced, in talking about this issue. He thought this might be a product of them speaking about it beforehand. He noted that it was [X]’s position that she was not smacked; it was only the boys.
There is no other evidence, of which I am aware, which supports the mother’s allegations, and this is clearly a case where there is a very acrimonious dispute between the parties. Mr M says that the parties are not able to agree on anything. He categorises the differences in their accounts of their relationship together as – and this is his word again – extraordinary. He goes so far as to say that, necessarily, one of them must be telling lies. That may be so. I am not in the position today to determine who of the parties it is.
I am well aware that allegations of family violence are very often difficult to substantiate because, by its nature, family violence occurs behind closed doors in the privacy of people’s homes and, accordingly, independent verification is difficult to achieve. I am also well aware that family violence may pose a great threat to these three young children, as they are developing emotionally in their relationship with each of their parents.
Those relationships are necessarily not fixed or completed given the ages of the children. On the other hand, it may also be very detrimental to these three children to deprive them of the benefit of a potentially viable relationship with their father.
Certainly, that was Mr M’s view. He was concerned that the current arrangements created what he considered to be a contrived and artificial relationship between the father and the children. He opined that if the children are to have a more natural and realistic relationship with their father, they needed to spend more time with him. He also pointed out, somewhat axiomatically, that the children need to be safe.
I have considered the matter, particularly Mr M’s report, and I have come to the view that, at this stage of the proceedings, I need to give more weight to the extension and support of the children’s relationship with their father, and at this stage the relationship needs to be advanced.
I do not think, in all the circumstances of this case, particularly Mr M’s fresh evidence, which comes before me after the matter commenced in March, that the children are relaxed, familiar and comfortable with their father, that it would be an unacceptable outcome, because of risk of family violence, to extend the time the children spend with their father.
Clearly, the matter needs to be carefully managed and the mother is unlikely to be supportive of this outcome, which she has opposed. I am concerned – and it is a frequent occurrence in cases such as this one – that the mother’s position is that only a contact centre should be utilised to advance the children’s relationship with their father.
However, she is not in a position to propose an alternative supervisor but she argues that a supervisor is necessary. Although, with one breath she supports the children spending time with the father, in practical terms her position means that the father will spend no time with the children, if her position is adopted. That concerns me.
Ms C is not acceptable to the mother. I, in those circumstances, do not propose to continue to engage her. The mother is not in a position to propose any other supervisor. Mr M raised in his report the prospect of Mr Ting’s current partner, who has a history of working in child protection, being involved as either a formal or de facto supervisor. She is unacceptable to Ms Chalmers, who believes that she is biased.
Ms Chalmers, in the past, has reported her dissatisfaction with the police at [B] in terms of investigating, properly, complaints she has made. I am concerned that conditions that will satisfy the mother in terms of protecting these children are unachievable.
Whether that is for any ulterior motive on her part, I am not in a position to say, but I have come to the view – and I appreciate that this is at the interim stage – that Mr M’s recommendation that the children’s relationship needs to be advanced will serve their best interests.
At this stage, a police station needs to be utilised for the parties to exchange the children. It may be the case that Ms Chalmers is unable to come into direct contact with Mr Ting. For that reason, the mother is open in the orders, I propose, to nominate someone to collect and return the children on her behalf.
In the longer scheme of things, it may be better if a children’s contact centre is utilised for exchange and I will leave open the possibility of that, but at this stage I would envisage that there will be some delay in the parties being accepted into such a program. In addition, and I do not know if the times that the centre at [B] is open will gel with these orders.

Mr M alludes to the possibility of the children spending a block period of time with their father in school holidays. The trial of the matter is in February, and I propose returning the matter to Court in December of this year prior to the school holidays. I will make directions about the parties filing any brief affidavit of what they propose for school holidays prior to that date.
Mr M envisages that Families SA be involved in these proceedings. I suspect they will be unwilling to accept such an invitation. They are involved with this family. They may know a lot about it, perhaps, perhaps not. I will invite the department, but none of the parties asks me to transfer the matter to the Magellan list of the Family Court, which would necessarily mandate the involvement of Families SA.
I am told that [Z] is unwell today, due to an asthma attack. I do not know how unwell he is, but clearly if, at his age, he is having a severe attack, it is probably better that he does not come to see his father today, and I have come to the view that the current Friday arrangement should be continued, but on an alternate weekly basis.
I also think it is probably a good idea if Ms Chalmers has a week to come to terms with the weekend arrangement which both Ms Du Barry and Ms Kovacs, who is Mr Ting’s representative today, propose.
I have decided to use one police station because I think that is easier and, in the eventuality that [B] Children’s Contact Centre is used, that will be inconvenient for the mother and more convenient for the father. So, in an attempt at some swings and roundabouts effect, I have decided that the [M] Police Station can be the police station of initial use, noting that it is about 25 kilometres between [M] and [B], which is not an inordinate distance, particularly as rural roads will be used.
Pursuant to section 91B, I will invite Families SA to intervene in these proceedings, and I will adjourn the further hearing of the matter to 9 December 2010 at 9.30 in the morning for further consideration of issues regarding the father spending block periods of time with the children at Christmas, and other arrangements in respect of specific festive dates during the period of the long school holiday, otherwise I will make the orders 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 October 2010