Calstrom and Tetlow

[2020] FCCA 2565

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALSTROM & TETLOW [2020] FCCA 2565

Catchwords:
FAMILY LAW – Parenting – application concerning a 5 year old child – where the mother has relocated – where the child is cared for by the paternal grandparents and the father when not spending time with the mother – where the mother asserts it is in the child’s best interest to primarily have a meaningful relationship with both parents rather than grandparents – where the mother’s proposal would result in a significant change to the child’s settled arrangements. 

Legislation:

Family Law Act 1975 (Cth) ss.11F, 60CC (2)(a)

Applicant: MR CALSTROM

Respondent: MS TETLOW

File Number: ADC 192 of 2020

Judgment of: Judge Young

Hearing date: 25 August 2020

Date of Last Submission: 25 August 2020

Delivered at: Darwin

Delivered on: 25 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Elkins

Solicitors for the Applicant: Williams Barristers & Solicitors

Counsel for the Respondent: Ms Boyle

Solicitors for the Respondent: Johnston Withers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The child X born in 2014 live with the father;

2. That the said child spend time with the respondent mother on a three-week rotating basis as follows:

   In week one

   (a)From the conclusion of school on the Friday (or 3:10pm if a non-school day) until the commencement of school on the Monday (or 8:45am if a non-school day); and

   In week two

   (b)From the conclusion of school on the Friday (or 3:10pm if a non-school day) until the commencement of school on the Monday (or 8:45am if a non-school day); and

   In week three

   (c)There be no time spending.

3. That for the purpose of all time spending at paragraph 2 herein, handovers are to be conducted with the father to deliver the child to City B following the conclusion of school on the Friday and the Mother to return the child to City C prior to the commencement of school on the Monday.

IT IS FURTHER ORDERED:

1. That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2014 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.

2. That 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.

3. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child/ren of the relationship X born in 2014 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 29 January 2021.

4. That the family report to deal with the following matters:

   (a)any views expressed by the said child/ren and any factors (such as the said child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child/ren.

5. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

6. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

7. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

AND IT IS FURTHER ORDERED:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. The proceedings are adjourned for trial call over mention on 12 March 2021 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 192 of 2020

MR CALSTROM

Applicant

And

MS TETLOW

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim hearing about X who is five years and nine months old.  The background to the matter is as follows.  The parties separated in late 2015 or early 2016.  There was no agreement about precisely when, but they separated in City C.  The parties entered in to an arrangement at the time of separation whereby X spent equal time with each parent.  In January 2020 X was spending week about with each parent.  However, that statement needs some qualification because it is apparent that for much of the time X was nominally in the father’s care, he was in fact cared for by the paternal grandparents with whom the father lived for much of the period following separation.

3. The paternal grandmother in her affidavit says that in early 2019 and again in early 2020, the father was a worker on a farm for a considerable period, perhaps as long as three months in 2019 and the period in 2020 is less clear, but I accept probably a substantial period.  On another occasion, the father was employed as a shift worker and worked to 11 pm.  The evidence was not precise.  However, I am satisfied that the child was probably cared for very significantly or substantially by the father’s parents when the father was not there.

4. As I have mentioned, the father lives with the paternal grandparents in really what is, it seems, an extended family home.  I have no doubt that the child has a close relationship with the paternal grandparents and indeed it appears that he has lived with them and his father for most of his life since he was a very small child and, of course, with the mother. 

5. This arrangement was interrupted in January 2020 by the mother’s relocation to City B from City C which I am told is 79 kilometres from City C. The mother has re-partnered or indeed her affidavit says that she married in 2019. She proposes to live in City B for the foreseeable future. On the mother’s unilateral relocation, the father withheld the child and made a prompt application to court. On 2 March 2020, an order was made that the child spend each weekend, from Friday to Sunday, with the mother and school holiday periods. That order was made in a busy list and was then adjourned for an interim hearing after obtaining a section 11F child inclusive report.

6. The matter has been adjourned to today.  The mother seeks interim orders that the child live with her and spend time with the father from Friday to Sunday on alternate weekends, which is two nights a fortnight, as well as holiday time.  I might say that her interim application also proposes that the child spend an evening every week with the father.  That would appear to me to have been an error or overtaken by events because it is not clear to me how that is a practicable proposal, given the parties are living in different cities.

7. In the alternative, she sought an order for a four-week rotation as follows: the child to spend time with her in week 1, from Friday to Monday;  week 2, Friday to Monday;  week 3, Friday to Monday;  and week 4, no time.  In other words, providing one weekend for the father.  That would constitute some nine nights out of 28 on a four-week rotation.  In other words, something like 32 per cent of the nights.  It is noteworthy, I think, that that is to be contrasted with the proposal she makes for the child to spend with the father should the child live with her, that is, two nights out of 14 or four nights out of 28:  14 per cent of the nights.

8. The father’s position was that the child spend equal time with each parent if the mother were to return to City C.  I am satisfied that is not a real option and the mother is not willing to do that.  The father proposes in that event, there be a three-week rotation, that in week 1, the child spend from Friday to Monday morning with the mother, week 2, Friday to Monday morning with the mother and week 3 with the father.  That would constitute six nights out of 21 or 29 per cent of the nights, very close to the mother’s proposal on a four-week rotation. The difference is not significant, in my view.

9. The main thrust of the mother’s argument is that the child should live with her because the child is effectively being cared for by the paternal grandparents, or the paternal grandparents and the father, and that the Family Law Act privileges the relationship between the child and the parent. The primary consideration in section 60CC(2)(a) is the benefit to the child of a meaningful relationship with both parents. She said that the child’s relationship with the grandparents is only “an additional consideration” or an “additional consideration”. 

10. I think as a general proposition that those submissions may be accepted.  However, this is an interim hearing with the limitations on the ability of a court to assess evidence and make findings.  There is some evidence about the mother’s arrangements in City B.  She has given evidence that she married in 2019, as I said, and that she rents a home in City B.  She said that her husband, Mr D, is employed.  The father has repartnered as well, it appears, though little is said in his affidavit material about his partner. 

11. The child has been, I am satisfied, in a settled arrangement for four and a half years or thereabouts since early 2016 and that settled arrangement involves the paternal grandparents.  I am not sure in detail of the respective roles of the father and his parents in their care for the child but I am satisfied that the paternal grandparents have played a very significant role, they share a household with the father and have a very close relationship with the child. 

12. It may be, as counsel for the mother points out, that the relationship is tantamount to a parental relationship.  I do not know.  I cannot make findings about that because I do not consider the evidence permits any findings at this stage about that as the assertions of the parties are untested.  However, I think it is clear enough that the paternal grandparents, as I have said, have played a very significant role in this child’s life for almost all of his life.  The child is also enrolled in a school in City C. 

13. While I acknowledge that section 60CC(2)(a) asserts that the primary consideration in assessing the best interests of the child is the benefit to the child of having a meaningful relationship with both parents, I am not satisfied in the circumstances of this case that that simply means, as the mother appeared to suggest, that the child should live with the mother, given the evidence that the paternal grandparents are playing something similar to a parental role, if I were to accept that submission.

14. In my view, the mother’s proposal involves a very significant change to settled arrangements: 

    a)a move to another town; 

    b)a move to another household with Mr D as a significant figure in the house, either as a person in the role of a stepfather or some other role, and there is little or no evidence about the relationship between Mr D and the child;

    c)there would need to be a change of school for the child and him being placed in another school; and

    d)the child will be relocated from a household where he has spent, at least for half of the time, pretty much all of his life.

15. I am not satisfied that there is a justification to upset such a settled arrangement on an interim basis. The section 11F memorandum recommended that there ought to be a change in the existing arrangements which provide for the child to spend every weekend from Friday to Sunday with the mother. There ought to be a change in those arrangements to permit the child to spend some weekend time with the father and the family consultant recommended that there ought to be a three-week rotation. The father’s proposal, I am satisfied, is in conformity with that.

16. I accept the recommendations of the family consultant and I am satisfied that they are largely in conformity with the assessment I have made myself.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 September 2020