Callum and Callum

[2008] FamCA 127

FAMILY COURT OF AUSTRALIA

Callum & Callum [2008] FamCA 127

FAMILY LAW – CHILDREN – Interim – Orders by consent

Family Law Act 1975 (Cth)

Applicant: Mr CALLUM

Respondent: Mrs CALLUM

Independent children’s lawyer: Victoria Legal Aid

File Number: MLC 4219 of 2007

Date Delivered: 20 February 2008

Place Delivered: Melbourne

Place Heard: Melbourne

Judgment of: Carter J

Hearing Date: 20 February 2008

Representation

Counsel for the Applicant: Mr G R Dickson

Solicitor for the Applicant: CE Family Lawyers

Solicitor for the Respondent: Mr P Lennon

Solicitor for the Respondent: Lennon Settle Mazzeo Lawyers

Counsel for the Independent Children's Lawyer: Ms M E Agresta

Solicitor for the Independent Children’s Lawyer Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED (save as to paragraphs 2 (a) and 2 (c))

1. Paragraphs 3 and 5 of the orders of 6 August 2007 be discharged.

2. Until further order the husband spend time with the children A born … May 1999 and C born … November 2003 as follows:

   (a)each alternate weekend from the conclusion of school Friday to the start of school Monday commencing 29 February 2008;

   (b)each alternate week from after school Monday to start of school Wednesday commencing 25 February 2008;

   (c)for one week in each term holidays being the first week failing agreement commencing Term 2 holidays.

3. For the purpose of changeovers:

   (a)       the husband collect and return A to and from school;

   (b)       the wife deliver C to A’s school on the Friday;

   (c)the husband deliver C to kinder on the Monday/Tuesday, and the wife collect C from the husband at A’s school on the Wednesday;

   (d)       the wife ensure Mr G is not present at changeovers.

4. The husband communicate with the children by telephone as follows:

   (a)on Tuesdays and Fridays between 6:00pm and 6:30pm on the weeks following weekend time;

   (b)the husband telephone the wife's home for the purpose of the phone communication (she is to keep him advised of her landline number and ensure the children are available to receive the calls) and if the wife is not home, the husband ring her mobile and she ring him back.

5. The wife communicate with the children by telephone each Sunday and Tuesday night when they are in the husband’s care between 6:00pm and 6:30pm, the wife to phone the husband’s landline.

6. For the purpose of all telephone communication, each party ensure the children have uninterrupted communications with the other, and neither party shall listen in on such calls or permit others to do so. 

7. The parties do all things to ensure A continues to attend upon her school counsellor for so long as her counsellor recommends.

8. The husband forthwith advise the Independent Children's Lawyer in the event he ceases receiving medication and/or treatment from his psychiatrist, and authorise the Independent Children's Lawyer to discuss those matters with the psychiatrist.

9. The parties do all things and sign all documents to forthwith draw down the available funds with the CBA Home loan in the parties joint names, (approximately $38,000 available) the funds drawn down to be paid as to one-half to Lennon Mazzeo and one-half to CE Family Lawyers and applied to outstanding legal fees.

10. The parties do all things to ensure they each receive copies of all joint bank account statements from CBA (at their joint expense, if any).

11. All interim applications be otherwise dismissed.

12. That within seven days of this day the wife file and serve any Amended Application for Final Orders which she may seek and within a further seven thereafter days the husband file and serve any Amended Response.

13. That applications of all parties are adjourned to a date to be fixed before the Honourable Justice Cronin to determine whether to expedite the final hearing.

14. That by 4:00pm on 11 March 2008, the party seeking the expedited hearing, file and serve a Summary of Argument in bullet point form, setting out the matters upon which the determination is to be made.

15. That within seven days of receipt of the applicant's summary of argument, the responding party/ies, file and serve a document indicating his or her support of, or objection to, the application for expedition.

16. That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Cronin.

17. That unless his Honour determines otherwise, the determination of the issue of priority be heard and finalized in Chambers.

    AND IT IS NOTED by all parties that the factors set out in paragraph 7.5 of the Case Management Directions are the matters relevant to the determination.

18. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

1. That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

NOTATION

A.The parties have agreed that instead of the husband's scheduled time on Monday 24 and Tuesday 25 March, he will have the same times on Tuesday 25 March and Wednesday 26 March.

B.The wife has agreed not to make further interim applications for litigation funding orders and it is on that basis the husband has consented to par 9.

C.During term holidays, changeovers be at McDonalds, …, and par 3(d) shall apply to those changeovers.

D.Following holiday contact, the cycle of alternate week time shall resume as though it had operated during the holidays.

Dated:

IT IS NOTED that publication of this judgment under the pseudonym Callum & Callum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4219 of 2007

MR CALLUM

Applicant

and

MRS CALLUM

Respondent

REASONS FOR JUDGMENT

ex-tempore

1. Proceedings are pending in this Court between Mrs Callum (for convenience referred to as “the wife”), and Mr Callum (for convenience referred to as “the husband”).  The substantive proceedings involve children's issues and financial issues.  There have been a plethora of interlocutory applications and a number of them came before her Honour Brown J on 21 January 2008.  She was able, in the circumstances of what was no doubt a busy duty list, to be able to deal with some of the matters but not all, and accordingly the balance of outstanding matters were adjourned to me for determination today.

2. The wife has been represented by her solicitor, Mr Lennon.  The husband has been represented by Mr Dickson of counsel.  The Independent Children’s Lawyer has been represented by Ms Agresta of counsel.

3. The issues which remained after her Honour’s determination concerned questions of relocation of the residence of the two children, parenting orders other than relocation, the sale of the former matrimonial home, a Barro order, and spousal maintenance, at least.  In order to facilitate the hearing, her Honour made orders requiring documents to be filed, that is to say affidavits, and set out a timetable for that to be done.  Paragraph 8 of her orders directed that, except as was provided in the orders, neither party was to file and serve any affidavit prior to the adjourned date, save with the leave of the Court or the consent in writing of the other party.  Paragraph 9 of her Honour’s orders required each of the parties to file and serve a list of documents to be relied upon at the adjourned hearing and, in that list, they were required to specify whether a document or part of a document was relied on in respect of proceedings which she detailed and which I have also myself outlined.  That list of documents was to be provided by 15 February 2008.  Neither the husband nor the wife complied with that order.

4. Counsel for the husband provided a list on Tuesday, 19 February, and Mr Lennon handed up a list today, which was only really referable to financial matters; did not concern children’s matters or other substantive matters such as relocation.  To my mind no satisfactory explanation for that has been given and it is to be deplored that the result was that the matter which could have been prepared, so far as the Court is concerned, a lot more comfortably needed to be dealt with in a much more rushed manner.  Additionally, notwithstanding the provisions of par 8 of her Honour’s orders and the timetable which her Honour had laid down, the wife’s material was not filed at the appropriate time and documents by way of affidavit were filed well out of time without leave of the Court and without consent in writing of the other party.  I think I sufficiently made my feelings about this known when the matter commenced and I trust that in future dealings with this matter such liberties with Court orders will not be taken.

5. In any event and to their credit, and also the credit of their legal practitioners, and undoubtedly the inestimable assistance of the Independent Children’s Lawyer and Ms Agresta, the children’s issues have almost completely been resolved, and other matters which were in dispute are not to be proceeded with, or have been dealt with in a way which is satisfactory to the parties.

6. There are two remaining issues in respect of the children.  They sound small but they are important.  They relate to future parenting arrangements.

7. The two children are A, born in May 1999, and C, born in November 2003. A is eight years and nine months in round terms, and C is four years and three months in round terms.

8. On 22 October 2007, orders were made for Mr P, a psychologist, to prepare a Family Report.  The parents and A were seen separately on 19 December 2007, and the parents were also seen with both children in their respective homes.  The report is dated 16 January 2008.

9. It is important to bear in mind, and I say this really for the benefit of the parents, that my task is to make parenting orders which are in the best interests of both children.  It is not my task to apportion blame or commendation.  This is not a popularity contest.  The orders which I will make will be interim, that is, they will apply until further order.  That is not to say that they could not be varied between the parties by consent.

10. The orders which are made today may or may not be the same as the final orders which will eventually be made after there has been a final hearing, and at that final hearing the parties and their witnesses will be cross-examined.  That will not happen today, of course.  Accordingly, the truth or otherwise of the parents’ respective allegations and counter-allegations, where disputed, cannot be determined given that the proceedings are dealt with on the papers.  That also applies, in fact, to Mr P’s report and to opinions and conclusions reached, and the recommendations that he has made, given matters raised in the third paragraph on the penultimate page of his report, which could be said to have some internal inconsistency.  I make it clear I do not include the last sentence in that paragraph in that description, nor do I accept in this regard the interpretation contended for by Mr Lennon.  The last part of par 3 on the second last page is as follows:

    “My recommendation is that at least on a trial basis, that the children spend at least five nights in a 14-night cycle in a continuous block with their father and that this include a collection from and a return to school.  I do not have a particularly strong objection to a week about arrangement other than that [C], by virtue of her age, may find that length of time away from her mother, who has I think quite clearly been the primary carer, more difficult.  I also note that [C] has had some difficulties with separation and whilst I see no indication to support this now, these two issues alone suggest a more conservation (sic) rather than less conservative approach might be helpful.”

11. The parties have different views of what may have been meant by Mr P but, in any event, neither proposes to adopt, or suggests that the Court should adopt the entirety of the proposals which Mr P put forward.

12. The issues which remain to be determined concern the time to be spent by the children with their father.  It is common ground that the children will spend time with their father each alternate week from after school on a Monday to the start of school on a Wednesday, and that will start on 25 February 2008.  That proposal is set out in par 2(b) of the Minutes of Proposed Orders.

13. The areas which are in dispute concern the other week, if I can use that term, and the arrangements to be made for the children to spend time with their father in that week.  According to the timetable, the weeks now being dealt with will commence on 29 February 2008.  The husband seeks that the children spend time with him on alternate weekends commencing, as I have said, on 29 February 2008, from the conclusion of school on Friday to the start of school on the Tuesday.  The wife contends that this period should conclude at the start of the school day on the Monday.

14. The Independent Children’s Lawyer supports the proposal of the wife, and I agree.

15. My reasons for that are firstly, these children are represented by highly experienced, competent and dispassionate lawyers.  I highlight the adjective “dispassionate”.  The opinion of the Independent Children’s Lawyer and the recommendations made on behalf of a children’s lawyer, and for that matter an expert such as Mr P are, of course, just that, that is to say, recommendations, opinions.  The opinions of Mr P are untested.  Nonetheless, when proceedings are being dealt with on the papers significant weight needs to be given at this interlocutory stage.

16. Secondly, and even more importantly, I must have regard to C’s age and circumstances.  She is only four and a little bit.  As Mr P said:  she may find (and I will just use a non-pejorative term) a week away from her mother more difficult.

17. That is because of her age, because of her circumstances.  A of course is at school and the difference between these two girls’ ages, whilst not desperately significant so far as maturity is concerned, where experience is concerned is highly significant.  In this regard it is sensible, in my view, and in C’s interests that I tread slowly for the time being.

18. The other area where the parties are in dispute concerns the period of time in which the children will be with their father during school term holidays.  The husband seeks one week in each term holiday but not before the Term 2 holidays this year, and he proposes that the week should be the first week, failing agreement to the contrary.  The mother’s proposal is that this period of time be five days only and she points to Mr P’s report where five nights in a fourteen night cycle in a continuous block was mentioned and proposed by Mr P.  She also points to C’s age, and I agree that that is a matter which needs to be high in my list of matters for consideration.

19. The Independent Children’s Lawyer in this regard supports the father’s proposal, and I agree.  It is important that people recall that the period for holidays will not be this coming school term period, they will not commence until the Term 2 holidays.  By that stage C will be, by her standards at her age, a great deal older than she now is, and I have formed the view that by that stage seven days is the appropriate period of time and is in her best interests.

20. The other matter which was in dispute was the question of smoking, that is to say, of cigarettes by the husband.  The wife, not unreasonably, suggests that smoking presents a health hazard to persons, and in particular small children if they are in the presence of a smoker.  Orders had been foreshadowed which were in terms which were not appropriate in my view.  That matter was eventually resolved and will be encompassed in an undertaking given by the husband who has completed the relevant document in the pro-forma approved by this Court.  The terms of the undertaking are that, without any admission as to necessity, he will not smoke in confined spaces in which the children are present.  The orders will be predicated on that undertaking.

21. Finally, I turn to the future direction of these proceedings.  The wife no longer seeks an order on an interlocutory basis, or an interim basis for relocation to regional Victoria.  I am told by Mr Lennon that part of the rationale for that is that the school year has already started.  It is submitted that it would be of benefit to the children should the matter be able to be determined by the end of this calendar year so that, if successful, arrangements can be made which will enable the children to commence school in regional Victoria, in time for the 2009 school year.

22. I have been informed and accept that the parties were excused from further attendance at a Conciliation Conference.  The orders I will make will bring to an end the interim applications which have held up the progression of this matter and in those circumstances, given the Court’s normal attitude that cases involving relocation can, and should, if appropriate be heard with rather more expedition than other cases are, it is appropriate I make some directions in that regard.

23. Such decisions are made by the Case Management Judge, Cronin J.  I am not permitted to make any decision as to that and I will make provision in my orders for the matter to be referred to his Honour.  I will do so using a form of orders which his Honour approves.  It will also be necessary for the wife to amend her application if she intends to continue to wish to change the children’s place of residence and, of course, the husband will need to respond to any amended application.  I would propose to make an order that the wife have seven days to do that, and the husband have a further seven days thereafter to respond.

24. I return to another matter which I raised earlier about the parents’ solicitors.  It is certainly not my intention to inflame this matter in any further way.  I did not wish to single out one person but the fact of the matter was that the correspondence which I had to read as part of my preparation, given that certain affidavits were referred to by Mr P, gave me considerable concern, and the reference which I made this morning to the use of the term “disingenuous” was, in fact, in the document which I had thought it was.  I will simply for present purposes refer Mr Lennon to his letter dated 29 August 2007 to the solicitors for the husband.  That is Annexure “JBC22” to the wife’s affidavit filed 19 October 2007.  I refer in particular to pars 2 and 3 on the first page, pars 5 and 6 on the second page, pars 2, 5 and 6 on the third page, par 3 on the fourth page.

25. I echo Mr P’s concern about the tenor of some of the correspondence between the parents’ solicitors.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:4 March 2007