Salamando and Salamando (No. 2)

[2007] FamCA 702

FAMILY COURT OF AUSTRALIA

SALAMANDO & SALAMANDO (NO. 2) [2007] FamCA 702

FAMILY LAW - CHILDREN - Interim parenting orders and arrangements - Discussion

Family Law Act 1975

Applicant: Mr Salamando

Respondent: Mrs Salamando

Independent Children’s Lawyer: Ms Lonergan

File Number: MLF 3175 of 2005

Date Delivered: 2 July 2007

Place Delivered: Melbourne (In Chambers)

Judgment of: Carter J

Hearing date: 26 June 2007

Representation

Solicitor for the applicant: Ms Earle

Solicitors for the applicant: Ryan Carlisle Thomas

Counsel for the respondent: Mr Mawson

Solicitor for the respondent: Middletons Lawyers

Independent children’s lawyer counsel: Ms Boymal

Independent children’s lawyer solicitor: Ms Lonergan
Victoria Legal Aid

Orders

IT IS ORDERED

1. That the children A born in August 1995 (“[A]”), T born in August 1998 (“[T]”) and G born in September 2000 (“[G]”) return to H, Victoria on or before 9 July 2007 and the wife do all such acts and things as may be necessary to facilitate their return.

UNTIL FURTHER ORDER IT IS ORDERED

1. That the three younger children live with the wife and the wife have sole parental responsibility for making decisions about their day-to-day care, welfare and development whilst they live with her.

2. That the child V born in January 1994 (“[V]”) live with the husband and he have sole parental responsibility for making decisions about V’s day-to-day care, welfare and development whilst V lives with him.

3. That the children, the three younger ones, spend time with the husband on a three weekly cycle and V spend time with the wife on a three-weekly cycle, commencing 21 July 2007 and as follows:

   (a)for the first weekend:

   (i)The three younger children spend time with the husband from 9:00am Saturday until 5pm Sunday;

   (b)for the second weekend:

   (i)[V] spend time with the wife from 12 noon until 5:00pm on the Sunday;

   (c)for the third weekend:

   (i)the children remain with the parent with whom they reside;

   (d)that the children otherwise spend time with each parent at such other times as may be agreed between the husband and the wife.

4. That for the purposes of facilitating par (4)(a)(i) of these orders the wife shall be responsible for arranging for the three younger children to be delivered to and collected from the husband’s residence.

5. That for the purposes of facilitating par (4)(b)(i) of these orders the husband shall be responsible for arranging for V to be delivered to and collected from the wife’s residence.

6. That the wife make the three younger children available to communicate with the husband by telephone each Wednesday between 6.30pm and 7:00pm, such calls to be initiated by the husband and commencing 11 July 2007.

7. That the husband make V available to communicate with the wife by telephone between 4:00pm and 4:30pm each Wednesday, such calls to be initiated by the wife, and commencing 11 July 2007.

8. That the husband and the wife be and hereby are restrained from discussing these proceedings with, or within the hearing or presence of any of the children.

9. That the wife be and hereby is restrained from:

   (a)changing the permanent place of residence of any of the three children from H;  and

   (b)changing the school of any of the three children after her return to Victoria.

IT IS FURTHER ORDERED

1. That the children, the three younger ones, spend time with the husband from 9:00am until 5:00pm on Thursday, 12 July 2007 and for the purposes of facilitating this order the husband shall be responsible to collect the said children from and return them to the wife’s residence.

2. That notwithstanding any other order the periods of time that V is to spend with the wife shall be suspended between 25 August 2007 and 25 September 2007.

IT IS FURTHER ORDERED BY CONSENT

1. That the four children attend upon Mr L or such other person as may be nominated by the Independent Children’s Lawyer, for the purposes of therapeutic counselling and that the husband and the wife each pay one-half of the costs of such therapeutic counselling.

2. That the husband and the wife do all such things as may be necessary to enable a Family Report to be prepared by Mr P and that the husband and the wife each pay one half of the costs of and incidental to the preparation of that Report.

3. That all interim applications be otherwise dismissed save as to costs.

4. That the husband’s Form 1 Application filed 8 May 2007 and the wife’s Form 1A Response filed 22 May 2007 be adjourned to the Trial Notice Pool.

IT IS CERTIFIED

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3175 of 2005

Mr Salamando

Applicant

and

Mrs Salamando

Respondent

REASONS FOR JUDGMENT

(No. 2)

1. On 29 May 2007 I heard competing applications concerning interim parenting arrangements which needed to be made for four children, and in particular whether the three younger children should live in Queensland or Victoria.  I delivered Judgment on 7 June 2007, and as was explained in that Judgment, sought assistance from counsel to assist in the drafting of orders.  The orders were not able to be finalised at the time and accordingly the matter was adjourned for mention at 9.30am on Tuesday, 26 June 2007.  The anticipation was that I would be presented with Minutes as to the arrangements which would be made for the children in question to return to Melbourne and the periods of time that the children would spend with their respective parents.  Not all matters were able to be resolved as between the parties, and indeed there were too many matters outstanding to be able to be determined within the available time.  Accordingly, the proposals have been considered in Chambers and what follows are my reasons for making the orders which are identified at the beginning of this Judgment.  This Judgment need to be read in conjunction with my earlier decision.

Issues

1. A Minute of Proposed Orders was received from each of the wife and the Independent Children’s Lawyer.  The husband adopted the proposals of the Independent Children’s Lawyer and did not provide a separate Minute. 

• The date of the children’s return to H.

1. In my earlier Judgment I noted that, subject to submissions, I would order that the children return to Victoria towards the end of the Victorian school term holidays, which were then approaching but which have now commenced.

2. Notwithstanding that it was proposed on behalf of the wife that the children should return “on or before 1 October 2007”.  The Independent Children’s Lawyer, supported by the husband, proposed that the children should return “on or before 9 July 2007”.

3. When the matter came before me on 26 June 2007 Ms Boymal of counsel continued to appear on behalf of the Independent Children’s Lawyer.  Ms Earl, solicitor, appeared on behalf of the husband and Mr Mawson of counsel appeared on behalf of the wife.  Mr Mawson had not appeared at the hearing of the matter and was understandably somewhat handicapped as a consequence.  At the outset I informed him of what I had said in relation to the date upon which the children should be returned and he apologised because he had not been aware of this.

4. My intention in foreshadowing the likely order to be made in this regard was to enable the wife to have a reasonable time to make the necessary arrangements to return from Queensland to Victoria but at the same time to ensure that the children be returned to their home at H as soon as possible so that they could be relatively settled and able to commence school at the commencement of the next school term.  I still hold to that view.  Nothing was advanced to indicate that the 9^th July would not be an appropriate time and furthermore, nothing was suggested to warrant the postponement of the children’s return until October 2007

5. In those circumstances I will order that the wife facilitate the return of the children to H, Victoria, on or before 9 July 2007.

• Time to be Spent on Weekends

1. In my earlier Judgment I noted the wife’s proposals that, should she live in Queensland, the three younger children would spend time with their father on one weekend each month, for half of each school term holiday period and for half the summer school holiday period.  I noted that this might not be at all appropriate for A at this stage, being concerned that her relationship with her father had been apparently delicately poised before she went to Queensland and noting that the ensuing litigation would probably not have assisted the relationship.  I stated that similar considerations would apply in respect of V, given the nature of his relationship with his mother.  I foreshadowed that I was not in favour of the then proposal of the Independent Children’s Lawyer which basically involved the children spending time with the other parent on alternative weekends.

2. Both parents and the Independent Children’s Lawyer have proposed a three-weekly cycle which will govern the time that the children spend with the non-residential parent.  On the first weekend arrangements are proposed for the three younger children to spend time with their father.  On the second weekend the proposals deal with the time that V should spend with his mother and it is common ground that on the third weekend of the three-weekly cycle the children should remain with the parent with whom they live.  The major differences between the proposals are as to the amount of time that the children should spend with the non-residential parent and as to whether T and G should be treated differently from A as to the time to be spent with their father.

3. The Independent Children’s Lawyer, supported by the husband, proposed that T and G should spend time with the husband from 5:00pm Friday until 5:00pm Sunday and that A should spend time with her father from 12 noon until 5:00pm Sunday. The wife however proposed that all three children should spend time with their father from 9:00am Saturday until 5:00pm Sunday.

4. The wife would, in my view, be very aware of whether A needs “different” treatment from her two younger siblings and I will therefore not adopt the proposal of the Independent Children’s Lawyer.  To my mind, the relationship between all three of the younger children and their father continues to need delicate handling, and this is particularly so in A’s case.  For those reasons, therefore, it is my view that all three children should spend time with their father together and at this stage the period of time should only include one overnight stay.  Accordingly, I will make an order in accordance with the wife’s proposal.

5. The wife proposes that V should spend time with her from 9:00am Saturday until 5:00pm Sunday on the second weekend of the three-weekly cycle.  The Independent Children’s Lawyer, supported by the husband, proposed that this period should be from 12 noon until 5:00pm on the Sunday.  The wife’s proposal for V mirrored the proposals she made for the younger three children to spend time with their father and the proposal of the Independent Children’s Lawyer in respect of the time that V should spend with the wife mirrored the proposal that was made in respect of the time to be spent by A with her father.

6. My own view is that the state of the relationship between V and his mother is even more fragile than that of A and her father and it is therefore necessary to approach this matter extremely carefully.  At the present time I prefer the proposals of the Independent Children’s Lawyer as supported by the husband.  V, however, should be made aware that his mother does wish for him to spend longer periods of time with her and it is to be hoped that this will soon eventuate.

• Time to be spent during School Holidays

1. This issue has not been the subject of any separate submissions.  The proposals of all parties envisage the three-weekly cycle continuing with no special arrangements being made for school holidays.  It is common ground that there should be however, provision for the children to spend time with their parents as may be agreed between them and this hopefully will enable longer periods of time to be spent in school holiday periods.

2. It is appropriate to note at this stage, and in respect of all periods of time that the children are to spend with their parents, that the parties have agreed they will attend upon Mr P, a psychologist, who is to prepare a Family Report.  These matters may be resolved following that report.  It is also heartening to note that it is common ground that the children are to attend upon Dr L or some other suitable person, for the purpose of therapeutic counselling, and that the parents will participate in that counselling should it be deemed appropriate.

• Changeovers

1. This matter was only partially addressed.  It is appropriate, in my view, that the changeover occur from the parents’ respective residences and it would be best for the children also for the residential parent to take the child or children to and from the home of the parent with whom that children or children will spend that period of time.  In this manner there will be an equal sharing of the driving involved and significantly to my mind, the children will feel that they are being “given” to the non-residential parent rather than being “taken away” from the residential parent.

• V’s Overseas Cruise

1. Arrangements had been made for V to take an overseas cruise between 25 August and 25 September 2007.  The Court was certainly not told about this at the time of the hearing and, as I understand it, neither was his mother or the Independent Children’s Lawyer.  On the face of it, this appears to be quite a “high-handed” approach by the husband.  If the cruise were not to take place I have little doubt that V would blame his mother.  It also, of course, will interfere with the periods of time that V will spend with his mother and with his siblings and it also will result in a significant absence from school.  This latter can, and should be addressed by the husband and V’s school.  Otherwise, in all the circumstances, there appears to be no sensible alternative other than to suspend the periods of time that V would be with his mother during the time that he will be participating in this cruise. 

• Additional time to be spent after the children’s return

1. The Independent Children’s Lawyer, supported by the husband, proposed that T and G should spend time with their father from 10:00am on Tuesday, 10 July 2007 until 5:00pm 11 July 2007.  For her part the wife proposed that the three younger children should spend time with their father from 9:00am until 5:00pm on Thursday, 12 July 2007.  As I understand it the husband was eager to spend as much time with all these children as he could and I did not understand him therefore to be averse to A being included in the arrangement.  I propose to accede to the wife’s request.  Whilst her proposal envisages less time than was sought by the other parties, it is not unreasonable in circumstances where there will be a myriad of matters to attend to, both by and for the children, following their return to Victoria.

• Future Listing

1. Recently these children and their parents have been through turbulent times.  The children are to undergo therapeutic counselling and a Family Report is to be prepared.  There may well be changes to the interim arrangements, either by negotiation or by Court order.  In the meantime, I will refer the substantive applications to the Trial Notice List, noting that it will be open to the wife to seek that priority be given to her application to relocate.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date:    2 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SALAMANDO & SALAMANDO