Tellam and Calhoon
[2013] FCCA 1118
•5 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TELLAM & CALHOON | [2013] FCCA 1118 |
| Catchwords: FAMILY LAW – Application by mother to relocate children aged 5years and twelve months from [M] to Adelaide – application occurs after unilateral relocation of children occurred in January of 2013 – pending expedited final hearing mother ordered to return children to [M]. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60DA, 65DAA, 65DAC, 65DAE |
| Tellam & Calhoon [2013] FMCAfam 264 B v B [2006] FamCA 1207 C & S [1998] FamCA 66 MRR v GR (2010) 240 CLR 461 AMS v AIF; AIF v AMS (1999) FLC 92-852 Goode & Goode (2006) FLC 92-286 Taylor & Barker [2007] FamCA 1246 U v U (2002) FLC 93,112 Morgan & Miles [2007] FamCA 1230 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders (2008) FLR 287 Bright v Bright (1995) FLC 92-570 Godfrey v Saunders (2008) FLR 287 |
| Applicant: | MR TELLAM |
| Respondent: | MS CALHOON |
| File Number: | ADC 304 of 2013 |
| Judgment of: | Judge Brown |
| Hearing dates: | 20 & 21 June 2013 |
| Date of Last Submission: | 9 August 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 5 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Degaris Lawyers |
| Counsel for the Respondent: | Mr Dillon |
| Solicitors for the Respondent: | Andrew Hill & Co |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2012 (hereinafter referred to as “the children”).
In the exercise of this equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues concerning the following:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health and special needs;
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the specified arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
Each parent is at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The children live with the mother and she be permitted to live with the children in [V], Adelaide.
The father spend time with the child [X] as follows:
(a)In [M] on three weekends during school terms commencing with term 4 of 2013 from 7:00pm Friday until 4:00pm the following Sunday (or Monday in the event that Monday is a public holiday). The weekends arising pursuant to this order are to be agreed between the parties and failing agreement are to be the third, fifth and eighth weekend of each school term to be calculated by regarding the first weekend after school has recommenced for the term as being the first weekend. It is further ordered that unless the parties agree otherwise the father will spend the weekend of Father’s Day with the child during the currency of this order.
(b)For ten (10) days during each short school holiday period commencing with the end of term 3 holiday in 2013. The days falling under the provisions of this order to be agreed between the parties and failing agreement to be from 10:00am on the first Sunday after school has concluded for the term until 4:00pm on the Wednesday of the second week of each such short school holiday period.
(c)For twenty-one (21) days in each end of year school holiday. The days falling under the provisions of this order to be agreed between the parties and failing agreement to be from 10:00am on the 2nd of January each year until 23 January. It is further ordered that the time specified in this order is to be in addition to the time specified in order 10 hereof relating to Christmas.
(d)Order 8(a) is to be discharged from1 August 2017 onward.
The father spend time with the child [Y] as follows:
Until 1 August 2014:
(a)In [M] between 10:00am and 1:00pm on the Saturday and Sunday of each third weekend during school terms to coincide with the time he is spending with the child [X];
(b)In Adelaide for three hours on the first and last day of the periods the father is spending with the child [X] as specified in order 8(b) hereof;
(c)In Adelaide for three hours on the first and last day of the periods the father is spending with the child [X] as specified in order 8(c) hereof.
Until 1 August 2015:
(d)In [M] between 10:00am and 2:00pm on the Saturday and Sunday of each third weekend during school terms to coincide with the time he is spending with [X];
(e)In Adelaide for four hours on the first and last day of the periods the father is spending with [X] as specified in order 8(b) hereof;
(f)In Adelaide for four hours on the first and last day of the periods the father is spending with [X] as specified in order 8(c) hereof.
Until 1 August 2016:
(g)In [M] between 10:00am and 3:00pm on the Saturday and Sunday of each third weekend during school terms to coincide with the time he is spending with [X];
(h)In Adelaide for five hours on the first and last day of the periods the father is spending with [X] as specified in order 8(b) hereof;
(i)In Adelaide for five hours on the first and last day of the periods the father is spending with [X] as specified in order 8(c) hereof.
Until 1 August 2017:
(j)In [M] between 10:00am and 6:00pm on the Saturday and Sunday of each third weekend during school terms to coincide with the time he is spending with [X];
(k)In Adelaide for eight hours on the first and last day of the periods the father is spending with [X] as specified in order 8(b) hereof;
(l)In Adelaide for eight hours on the first and last day of the periods the father is spending with [X] as specified in order 8(c) hereof.
(m)Thereafter on the same basis as the child [X] as set out in order 8(a) and (b) hereof, it being noted that the time occurring during school terms will cease from 1 August 2017 onwards.
Unless the parties agree otherwise, the children are to spend time with each of the parties at Christmas as follows:
(a)With the mother from 9:00am on 24 December until 6:00pm on 26 December in 2013 and each odd ending year thereafter;
(b)With the father from 9:00am on 24 December until 6:00pm on 26 December in 2014 and each even ending year thereafter;
Unless the parties agree otherwise, the children are to spend time with each of the parties, at Easter, in [M], as follows:
(a)With the mother from 9:00am on Maundy Thursday until 5:00pm on Easter Saturday in 2013 and each odd ending year thereafter;
(b)With the father from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2013 and each odd ending year thereafter;
(c)With the father from 9:00am on Maundy Thursday until 5:00pm on Easter Saturday in 2014 and each even ending year thereafter;
(d)With the mother from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2014 and each even ending year thereafter.
The mother is to be responsible for all costs involved in delivering the children to the father for all periods of time specified by these orders to take place in [M] (times during school terms and at Easter), with the father to be responsible for collecting and returning the children at the beginning and end of each school holiday period and at Christmas time.
Unless the parties agree otherwise, the children are to be exchanged between them at McDonalds, [M] and the mother’s home in [V] as applicable.
The father spend time with the children, either in [M] or Adelaide or any other place, on such terms and conditions as the parties agree from time to time.
A communication book operate between the parties to contain communication regarding the children’s regular routine, health, developmental milestones, handovers, contact requests, travel information, educational issues and all such other information as may be appropriate to be communicated between the parties, with the communications book to transfer between the parties at handover at the same time as the children.
The children [X] and [Y] (upon her reaching a suitable age) be at liberty to call each parent when in the care of the other parent and that the caring parent shall do all things necessary to facilitate such telephone communication forthwith.
The parties each be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other party in the presence or hearing of the children or permitting any other person to do so.
The parties each be restrained and an injunction issue restraining each of them from discussing any aspect of these proceedings with the said children, or permitting the said children to see any documentation filed in these proceedings.
All extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tellam & Calhoon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 304 of 2013
| MR TELLAM |
Applicant
And
| MS CALHOON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. Mr Tellam and Ms Calhoon are the parents of [X] born [in] 2008 and [Y] born [in] 2012.
Until January of 2013, Ms Calhoon lived permanently in the [M] area. She came to live in [M] in 2003. Both [X] and [Y] were born in [M]. Ms Calhoon now wants to live, with the children, in [V], in the southern suburbs of Adelaide, where she grew up and where her family live.
Mr Tellam lives in [N], a small town about 32 kilometres from [M]. He was born in [M] and has lived in the district for most of his life. He is employed as a [omitted], at [C], in [N]. He has been at the [workplace] for at least fifteen years.
Mr Tellam is buying a house in [N]. He has owned it for eight years. His mother, Mrs S, lives in [M]. His brother lives in [omitted] near [M]. His sister lives in [omitted] to the north of [M]. Mr Tellam’s partner, Ms A, also works at [C]. She too has a home in [N].
On any view, Mr Tellam’s roots in the [M] district are deep. He does not want to move and is apprehensive about living in the suburbs of a large city, such as Adelaide. In his words, he is “not a city person”. He does not think that his skills, developed in a rural [omitted], would easily translate to an urban area.
Ms Calhoon is not in the paid workforce and has not been since 2007. She is not robust emotionally and has suffered from depression, for many years, which has been treated with medication and cognitive behavioural therapy.
She agrees that she did not react well, when she discovered Mr Tellam was involved with Ms A. Ms Calhoon had hoped that she and Mr Tellam would be able to reconcile the difficulties in their relationship together.
Ms Calhoon’s parents, Mr and Mrs C, live in [V]. Her brother and sister live close by. Ms Calhoon spent Christmas 2012, with her family and friends, in [V]. [X] and [Y] were with her. She had a good time and was happy.
When Ms Calhoon returned to [M], she had a minor contretemps, with Mrs S, about arrangements for the care of the two children. This caused Ms Calhoon to realise how unhappy she was living in [M]. She decided that she wanted to leave and be closer to those she holds dear, in suburban Adelaide.
On 26 January 2013, Ms Calhoon left [M] with the children. On 29 January she found a rental property in [V], which she liked. On 1 February she signed a lease for 12 months, which commenced on 8 February. She borrowed $1,740.00 from the Housing Trust to pay for the bond. Given that she is a Centrelink recipient, it was a considerable sum of money for her.
Mr Tellam got wind of the proposed move in mid-January. He had had [X] in his care for nine days over the holiday period. Ms Calhoon told him of her plans. On 14 January, Mr Tellam sent her a text message, asking her not to move the children to Adelaide. Ms Calhoon’s mind was made up. There can be no doubt that Mr Tellam did not agree to [X] and [Y] living away from [M].
Ms Calhoon acknowledges that Mr Tellam did not agree to [X] and [Y] moving away from [M]. She is not a sophisticated person, in respect of legal matters in general or family law matters in particular. She took no professional advice about the move. It is her position that, as she was the children’s main carer, she could move wherever she liked, provided it was within the state where the father lived.
Mr Tellam wasted no time in seeking his own professional advice. Proceedings were issued, on his behalf, in this court, on 29 January 2013. He did not challenge that [X] and [Y] should continue to live predominantly with Ms Calhoon. However, he wanted the court to compel Ms Calhoon to live in the [M] area with the children, so that he could see them regularly on weekends and on Thursday evenings.
Ms Calhoon was served with Mr Tellam’s application, in Adelaide, late on the afternoon of 1 February, some two or three hours after she had signed the lease on her rental property in [V]. She felt that she was legally committed to the lease. In any event, she had no desire to return to live in [M].
Accordingly, the case proceeded to court. I had to determine, on an interim basis, where [X] and [Y] would live, in a geographical sense. There was no question that the children should continue physically to live with their mother. [Y] was a baby, who was wholly dependant on her mother. [X], at five, had never lived away from his mother.
The father did not want to change these arrangements. He was focussed on how he could maintain his relationship with [X] and get to know [Y] better, as she matured. He did not think either would be possible, if the children lived in Adelaide.
The central question therefore was whether Ms Calhoon should be permitted to live in Adelaide, as she preferred, or compelled to return to [M], so that Mr Tellam could see the children regularly – maintaining his existing level of relationship with [X] and developing his relationship with [Y].
It was a difficult issue to determine at the interim stage. In the reasons for judgment, delivered at the time, I explained the nature of an interim hearing.[1] I also explain that, at the interim stage, the applicable legal authorities were generally disapproving of a parent, who unilaterally relocated children, without either the permission of the other parent concerned or the court’s approval, unless there was a situation of emergency, which justified the move in question.[2]
[1] See Tellam & Calhoon [2013] FMCAfam 264 at paragraphs 19-23
[2] Ibid at paragraph 57
I pointed out that relocation cases present particular difficulties for the court, as they throw up competing and sometimes contradictory legal considerations. On the one hand, Australia is a free country, whose citizens are free to live how and where they want.
On the other hand, children have the right to know and be cared for by both their parents. As such, every case involving the relocation of a child, far away from one of his or her parents, requires a careful and idiosyncratic analysis, after a thorough hearing of all relevant evidence.
Considerations, such as these, militate against the court determining a relocation case at the interim stage. In this case, in its early stages, I decided the best option for [X] and [Y], given their tender years and the logistical difficulties arising because of the distance between [M] and Adelaide and the parties limited financial resources, was to direct Ms Calhoon to return to [M] pending final hearing, but to list that final hearing as soon as was possible.
The expedited hearing was ordered to take place, in Mount Gambier, on 20-21 June 2013. As directed, Ms Calhoon returned to [M] to await the trial. She did so reluctantly and it cannot be said she has happily resumed her past life in [M]. She and the children are currently living in a women’s shelter. She has maintained her lease in [V]. She has returned to Adelaide, with the children, whenever she has been able to. On any view, she returned to [M] under extreme sufferance.
One of the most significant pieces of evidence, in cases involving children, is a family report. Given the time taken to prepare such reports, they are rarely available at the interim stage. So it was in this case. Such a report was likely to be important in providing expert evidence regarding the developmental needs of [X] and [Y].
The expedited hearing, took place, in Mount Gambier as scheduled. Each party has now been given the opportunity to put their case in full and test the case of the other. More importantly, in the intervening period, there has been time to prepare a family report to provide the court with an expert and independent assessment of the needs of [X] and [Y] and the parental strengths and weaknesses of Mr Tellam and Ms Calhoon.
The family report was compiled by Ms D, a psychologist. Ms D interviewed Mr Tellam and Ms Calhoon and observed each of them with [X] and [Y]. In addition, she spoke with Ms A; Mrs S; and
Mr and Mrs C. Her report is controversial, so far as Mr Tellam is concerned. He believes Ms D was biased against him.
Ms D described [X] as a “lively and sweet little boy”. She described [Y] as a “healthy and well-loved baby”. Thankfully, this is not a case raising issues of child neglect or abuse. In addition, neither Mr Tellam nor Ms Calhoon have had problems to do with alcohol or drug abuse. [X] and [Y] are much loved children.
As a consequence of this love, I accept that both Mr Tellam and
Ms Calhoon and those who are associated with each of them have much to offer [X] and [Y], as they grow up. So I think did Ms D. She also recognized that it was heartbreakingly difficult case.
In these difficult circumstances, Ms D recommends that Mr Tellam and Ms Calhoon should share parental responsibility for [X] and [Y], who should continue to live with their mother, as they have done to date. Ms D also recommends that the court should make orders enabling
Ms Calhoon to live in the southern suburbs of Adelaide. In her report, Ms D provides her opinion that:
“… the mother would be enduringly unhappy if required to live in [M]. This would compromise the ability of the children to grow happily and without stress.”[3]
[3] See family report dated 5 May 2013 at page 16
Ms D was well aware that it would be very difficult for Mr Tellam to leave [M] to enable him to live closer to [X] and [Y]. She was also alive to the benefits the children were likely to derive from being able to spend time with their father regularly. In this context, Ms D wrote as follows:
“This creates the great difficulty for this matter, as it would be better if the children could have regular and frequent times with their father. It is the writer’s view that this difficulty is subsidiary to the negative impact if their mother were restrained from moving, as described above.”[4]
[4] Ibid at page 16
Mr Tellam opposes the mother living with [X] and [Y] in [V]. He believes that it will be difficult for him to see the children regularly there, given the distance between [M] and Adelaide. As he and [Y] do not know each other very well, at the moment, he believes such an outcome will be particularly detrimental to her.
Mr Tellam believes Ms Calhoon is exaggerating her difficulties in living with [M]. He thinks she has friends and support in the town, where she has lived for many years, and that she will be able to access appropriate services there, as she has done in the past.
Although Mr Tellam accepts that Ms Calhoon will be initially “be as mad as hell” about having to live in [M]. He asserts that she will come to accept such an outcome and will settle back comfortably into her previous life in [M].
Ms Calhoon’s case is simple. She really wants to move to Adelaide, where she believes she will be happier and better supported. She has had enough of [M], where she has been unhappy, since she and
Mr Tellam ended their relationship. She wants to live closer to her mum and dad, who have each had some health issues in the past few years.
There can be no outcome, in this case, which will be satisfactory to all concerned. The various options available cannot be manipulated, like the surface of a Rubik’s Cube, to reach a perfect result. The aspirations of the parties are in conflict.
Mr Tellam wishes to play as large a role as possible in [X] and [Y]’s lives, as they grow to maturity. He is neither prepared nor able to leave the [M] area, where he is happy and has always lived.
At the same time, Ms Calhoon wishes to live in [V], where she has family and friends and where she believes she will be happy and supported. She believes that her personal happiness will be secured in [V], as opposed to [M], where she feels unhappy and trapped.
If I make the orders the father wishes, the children will continue to see him regularly, but Ms Calhoon will be unhappy and frustrated at this outcome. Undoubtedly, she will feel bitterly disposed towards
Mr Tellam, who has detained her in [M], against her will, denying her the right to live where she wants to live, but suffering no similar detriment himself.
On the other hand, if I make the orders the mother wishes, the children will lose the potential to have regular interaction with their father, because he will be living some distance from them. Mr Tellam will be sad and upset as a consequence of being geographically separated from the children.
It is well over 400 kilometres from [M] to Adelaide and takes about four hours to drive the distance. In these circumstances, there are likely to be logistical difficulties standing in the way of the children seeing their father regularly, which would not exist if all concerned were living in the same locale.
Regardless of the outcome in this case, one of the parties will feel hard done by it. As such, the consequences of the problem and its resolution, may well be a source of continuing bitterness between Mr Tellam and Ms Calhoon, one of whom will almost certainly feel harshly treated.
I say this at the outset, because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that difficulties for [X] and [Y] may be minimised and their relationships with each of their parents maintained as well as future circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom and be unduly restrictive.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned
The balancing of these considerations has been described by Warnick J as both "a delicate interplay of concepts" as well as "an imbroglio of principles."[5] The level of complexity is intensified by the fact that the Commonwealth parliament has passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which requires in certain circumstances, that the court give active consideration to a child living for equal periods of time with both parents concerned or alternatively for substantial and significant periods of time.
[5] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1.
For all these reasons, this is a difficult case, which presents no ready or obvious solutions. Whatever is the ultimate outcome, it will have significant deficits so far as [X] and [Y] is concerned. In these difficult circumstances, I must remain focused on [X] and [Y]’s best interests, which remain my paramount concern.
The parties’ proposals
a) The father
The father proposes that the parties should have equal shared parental responsibility for [X] and [Y] [Family Law Act at section 61DA][6] and that the children continue to live with their mother, provided she lives within 20km of [M] and is restrained, by injunction, from moving the children’s residence away from the town.
[6] Hereinafter all section references in [] are to the Family Law Act 1975
He further wishes orders to be made requiring [X] to spend time with him, on alternate weekends, from after school on Friday or thereabouts until 3:00pm the following Sunday; and in the intervening week of each fortnight from 5:30pm to 7:30pm on Thursdays.
Mr Tellam has proposals for the sharing of Easter and Christmas Day and would want to see [X] for the entirety of the Father’s Day weekend each year. He proposes a similar regime for the Mother’s Day weekend, so far as Ms Calhoon is concerned.
In terms of [Y], given her tender years, he proposes an increasing regime of time, with her, starting with two periods of two hours in duration, each fortnight, for six months, increasing gradually in six month increments to overnight time in about eighteen months; and increasing again, in six monthly spaced progressions, to the same regime as [X].
His proposed orders reflect one of the main difficulties arising in the case. Mr Tellam does not seek to become the children’s main provider of care, given his work commitments and the mother’s position, he concedes that this role should remain with Ms Calhoon. Underpinning his case however is his wish to be as fully involved with the children, as possible, as they grow to maturity.
In this context, at present, the developmental needs of the children are significantly different. Necessarily, this entails that different arrangements must be made for them to spend time, with their father, at present. It is likely to take some time for the different regimes to be consolidated.
In addition, [X] is not as yet attending primary school. Mr Tellam has not put forward any specific proposals as to school holiday time. Obviously, given that she is not yet one year of age, school holidays are a distant prospect for [Y]. In this context, I accept that it is difficult for Mr Tellam to put forward a comprehensive regime of time, for both children, to cover the remainder of their infancy.
It does however appear to be the case that, up to this stage, he has been able to spend block periods of time, with [X], with the mother’s acquiescence, during school holiday periods. Most recently, [X] spent a period of around a week, with Mr Tellam in January of 2013.
In all these circumstances, although he does not specify it as such, I take it that Mr Tellam aspires to spend substantial and significant time [section 65DAA] with the children, particularly when they are older.
Mr Tellam also proposes a number of specific order issues, dealing with medical orders; school reports and other educational issues; parental interaction and communication, including the utilisation of a communication book; and the exchange of contact details between the parties; which do not appear to be greatly controversial.
b) The mother
In the case outline filed at the commencement of the case by Mr Dillon, her counsel the mother agreed with the allocation of parental responsibility, as proposed by the father, and was in broad agreement with his specific issues sought. Needless to say, she wished [X] and [Y] to live with her, in the southern suburbs of Adelaide.
If she is successful, in this regard, she initially proposed a regime whereby she would visit [N] regularly, on weekends, on a monthly basis, so that Mr Tellam can spend time with both children, initially for the space of two hours with [Y], but increasing over time for her. So far as [X] is concerned, Ms Calhoon proposes that he would spend the entire weekend, from 2:00pm Friday until 3:00pm the following Sunday, with the father.
Ms Calhoon proposed a similar regime, for the father to spend time with the children, in Adelaide, on a monthly basis. It is implicit in her position, that each party should bear their own costs in implementing the regime. She also proposes regular Skype or telephone communications between the children and their father, in between these regular visits.
More recently again, in final written submissions, Mr Dillon has modified the mother’s position somewhat. She proposes that [X] should spend every third weekend of each month, from 7.00 pm Friday until 4.00 pm Sunday with his father; as well as for ten days in each short school holiday; and 25 days in the end of year school holiday.
She proposes the same monthly regime for [Y], until she starts school, other than that she should not have the block periods of time, with her father, during school holidays. In order to balance out the travel,
Ms Calhoon proposes that she should travel to [M] in term times and Mr Tellam should travel to Adelaide to facilitate school holiday time. This proposal has apparently arisen because of Mr Tellam’s indication that it is impossible for him to travel to Adelaide fortnightly.
Again, for obvious reasons, Ms Calhoon has focussed on the here and now, so far as her proposed orders are concerned. The intent of her proposal is that the children would be able to see their father for substantial and significant periods of time, commensurate with the developmental needs of each of them, notwithstanding the geographical constraints arising from her proposed relocation to Adelaide.
It is implicit in her position that, ostensibly at least, she is alive to the need for both children, given their tender years, to interact as regularly as possible, with their father. However, at this juncture, Ms Calhoon has given no specific thought to what are the appropriate arrangements for when both children are of school age. In this context, neither party has considered the possibility of a delayed departure of Ms Calhoon from [M], with the children.
The legal principles applicable
The service of [X] and [Y]’s best interests is the most important consideration in this case [section 60CA]. This is the paramountcy principle. [X] and [Y]’s best interests are the paramount or most important consideration in this case.
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Although both parties have criticisms of the other in respect of their past parenting of the children and their personal interactions with one another, this is not a case which is centred on allegations of family violence, neglect or abuse.
In my assessment, the majority of the criticisms the parties have of one another must be approached in the context of these controversial and difficult proceedings for the parties. Necessarily, no litigant in family law proceedings comes to court without criticism of the other parent concerned or to lavish effusive praise on the other.
This case is no exception. However, for reasons which I will elaborate upon in due course, it appears to me that implicit in the cases of both Mr Tellam and Ms Calhoon is a recognition that the other parent has much to offer [X] and [Y] and should be fully involved, as much as is practicable, in the children’s lives, as they unfold.
The parties agree that they should have equal shared parental responsibility for [X] and [Y], whom I regard as much loved children by their parents and those associated with them. As such, there can be no doubt that both Mr Tellam and Ms Calhoon wish to be as involved, as possible, in the discharge of parental responsibility for [X] and [Y]. Clearly, both want to be closely involved in making all major decisions regarding their ongoing parenting.
In all the circumstances of this case, particularly the absence of any concerns regarding issues to do with family violence, neglect or abuse of either [X] or [Y], it is not appropriate to look behind the parties’ agreement in respect to the issue of equal shared parental responsibility. I am satisfied that it is likely to be in [X] and [Y]’s best interests that their parents have equal shared parental responsibility for them.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
As previously indicated, at the outset of the case, neither party had any specific proposals for school holidays or indeed the school week. This is readily explicable, when the ages of the children concerned are considered. In his proposal, for [X], Mr Tellam has indicated a desire to spend time, with [X], on weekends and on one working evening. He has other proposals in respect of special occasions. In due course, it is implicit that he wishes to spend time, with [Y], within the same parameters.
As such, I accept that he aspires to spend time, with the children, to such an extent that he will be involved in their daily routine. This is the rationale for him seeking an injunction to prevent Ms Calhoon removing the children from the [M] area.
More recently, in the context of the preparation of written submissions, counsel for the mother has made proposals whereby [X] would spend significant periods of each school holiday with his father, with [Y] joining in such a regime when she is of primary school age.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because s.65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order are made.
Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[7]
[7] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, a proper consideration of what is feasible requires the court to consider the circumstances of both parties. This is particularly so if an equal time (or a significant and substantial time) order can only come about by requiring both parents concerned to remain in (or more to) the same locale.
Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[8]
[8] See C & S [1998] FamCA 66
This requirement for careful analysis flows from the fact that a parents’ entitlement to freedom of movement, as a citizen, is frequently difficult to reconcile with the entitlement which children have, pursuant to the Family Law Act, to maintain and develop relationships within their family, particularly with a parent, which are likely to be significant to them, both in the short and long term.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations, as to where and how he or she proposes to live in future, are matters which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[9] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[9] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
AMS was determined prior to significant legislative amendments to the Family Law Act bought into effect by the Family Law Amendment (Shared Parental Responsibility) Act. These amendments have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents and have changed the pathway, which the court must follow, in all cases concerning children, particularly those in which the presumption of equal shared parental responsibility has been found to apply. This pathway applies just as much to cases involving relocation, as it does to more conventional parenting cases.
Pursuant to the applicable legislation, when the presumption of equal shared parental responsibility has been found to apply, the court is directed to “to consider” firstly equal time and then secondly “substantial and significant” time between a parent and child. It has been held that this requirement applies just as much in relocation cases as it does in other cases pertaining to children.
The Full Court in Goode & Goode[10] has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[10] See Goode & Goode (2006) FLC 92-286
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
In Taylor & Barker[11] the Full Court of the Family Court said as follows:
… [the approach] which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[11] Taylor & Barker [2007] FamCA 1246 at paragraphs 81-83
The Full Court speaks of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
In this case, the presumption of equal shared parental responsibility applies. Accordingly I am required to consider Mr Tellam’s proposal that the children live, at least some stage in the future, in a regime which enables him to be involved in [X] and [Y]’ daily routine, to a reasonably significant degree.
Necessarily, it seems to me, his proposal has implicit within it the need to restrain Ms Calhoon from living where she would prefer to live, namely the southern suburbs of Adelaide, since Mr Tellam does not aspire to the children living predominantly with him or wish to be involved in an equal time arrangement, as Mr Tellam is unwilling to move in tandem with Ms Calhoon to Adelaide.
MRR, to which reference has already been made, indicates that the presumption of equal shared parental responsibility is not of itself determinative of whether there should be either an equal time or substantial and significant time regime. Both outcomes require an affirmative answer to be reached to the questions arising in section 65DAA namely firstly what are the best interests of the child concerned and secondly what is objectively feasible, in all the circumstances of the case. Essentially, the court must be careful not to be blinded by issues relating only to the best interests of the child concerned.
In purely factual terms, MRR bears some resemblance to the present case. It was also a case dealing with relocation issues. On an interim basis, the applicant mother had been compelled to return to Mount Isa, from Sydney, with the parties’ child aged six.
Prior to the parties’ separation, they had been living in Mount Isa, where the father had employment. Both parties had familial connections in Sydney and the mother had returned to that city with the child, following separation, until compelled to return to Mount Isa, by court order.
Prior to the final hearing of the case, the child had been living on a week about basis, with each parent concerned. In order to achieve this outcome, the mother had been living in make-shift accommodation in a caravan park. It was her evidence, which was accepted, that there were long waiting lists for suitable accommodation in Mount Isa and it was likely to be expensive. It was also accepted that the mother’s employment prospects were limited in Mount Isa. A family consultant provided evidence that the mother was “despondent” about her circumstances and felt isolated from her family.
At first instance, it was found to be in the child’s best interest for the equal time arrangement to continue. This resulted in the mother effectively being restrained to remain in Mount Isa on an indefinite basis. This decision was affirmed by the Full Court.
In the High Court, it was found that the evidence available, at first instance, “did not permit an affirmative answer to the question in section 65DAA(1)(b)”, namely that it was reasonably practicable for there to be an equal time regime. In effect, no consideration had been given to the mother’s individual circumstances.
In this current case, one very significant factor pertaining to the mother’s idiosyncratic circumstances is that she is the primary carer of [X] and [Y], a state of affairs which the father does not seek to challenge in his application to the court. In addition, Mr Tellam has made it clear that he will not consider moving, in tandem, with
Ms Calhoon, to Adelaide, in order to achieve what he perceives to be the best possible outcome for them.
Accordingly, from his perspective, the best interests of the children can only be achieved by restraining Ms Calhoon compulsorily in [M] for an indeterminate period of time. Ms Calhoon, for her part, has made it clear that she will not renounce her primary residency of the children, notwithstanding this may mean she must remain living in [M], a location no longer palatable to her.
In U v U (Gaudron J in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
“… it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[12]
[12] See U v U (2002) FLC 93,112 at 89,082
In my view, issues of this kind have relevance to the overall feasibility of what may potentially follow from an order for equal shared parental responsibility made under section 61DA. In addition, it also seems to be largely axiomatic that such considerations are likely to be germane to a child’s best interests, particularly in respect of the potential ramifications arising for a parent from confining him or her indefinitely in a location not of his or her choosing.
As Gummow and Callinan JJ pointed out in U v U “maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[13]
[13] Ibid at 89,091
In this case, if the court exceeds to the father’s proposal, it is only the mother who will have to suffer such restraint upon her wishes and mobility. On the other hand, the father will be able to proceed with his life, as before, without any restriction. Given the strictures of both section 65DAA(1)(b) & (2)(d) the court must consider the impact of the father’s proposal upon the mother, particularly her desire to live in a location where she feels she will be happier and subject to less stress.
Again, in U v U Hayne J said as follows:
“If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [14]
[14] Ibid at 89,103
In this context, Hayne J, whilst indicating that the best interests of the child, potentially affected by the relocation, remained the paramount consideration, they were not the only consideration because, in every relocation case, there were at least three people, who would be affected by any order that was made, namely two adults and a child, as well as possibly other relatives of the child concerned. The interests of all these persons needed to be considered, not only the child.
In this case, as a matter of pure logic, there are the following possible outcomes, some of which have not been advocated by either of the parties.
·The children remain living with the mother but she is restrained in [M] indefinitely so that the children may have regular and extensive time with their father (the father’s preferred outcome);
·The outcome outlined above, but refined by the placement of a moratorium, during which the mother is not able to leave [M], the moratorium being defined by reference to developmental factors relating particularly to [Y];
·The children live with the mother in the southern suburbs of Adelaide and spend as much as time as is possible with their father (the mother’s preferred outcome);
·The parties plan to move to Adelaide together, either immediately or at some specified time in the future;
·The children move to live with their father, so that the mother may have the emotional support, which she personally requires in Adelaide.
I bear in mind that this is not some roving inquiry. In addition, as
Mr Tellam has indicated that he will not consider moving and
Ms Calhoon has said that she will not prioritise relocating over having [X] and [Y] live predominantly with her, a number of these outcomes are not open to the objectively reasonable consideration of the court.
As the High Court has pointed out, in MRR, each such outcome must be examined in the context of what is reasonably practical, given what is the reality of the situation facing the family concerned, including, I take it, the practical consequences of the relocation either happening or not happening.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[15]
[15] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
In AMS Kirby J said as follows:
“One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.”
In this case, it is an inherent component of the mother’s position that for her to remain in [M] and to continue in her role as the children’s primary carer, whilst the father continues his current lifestyle without restriction – the outcome contended for by Mr Tellam – would represent an unwarranted interference into her life.
As the child’s best interests remain the paramount consideration in the outcome of any relocation proposal and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[16] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[16] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
It is a common occurrence for a parent to move voluntarily away, from the child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[17] As Kay J pointed out in Godfrey v Saunders[18] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[17] See D and S V (2003) FLC 93-137 at 78, 280
[18] See Godfrey v Saunders 2008 FLR 287 at 298
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there thus is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
As a result of these considerations, I conclude that the main thrust of the inquiry, in this case, remains what outcome is likely to best serve [X] and [Y]’ best interests. Equally important, as the presumption of equal shared parental responsibility applies, is a consideration of what is reasonably practicable. This must entail a close scrutiny of the mother’s personal circumstances, both as they pertain in [M] currently and prospectively in the southern suburbs of Adelaide.
The best interests of a child are ascertained by a consideration of the objects and principles contained in section 60B and the various considerations listed in section 60CC(2) and (3). Accordingly, the best interest test remains “integral” to the determination of any parenting issue, including the difficult issue of relocation.[19]
[19] ibid at 81,386
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[20], which arise from complex issues. Such cases require the application of an individualised judicial discretion.
[20] See AMS v AIF (supra) per Kirby J at 86,041
As Boland J put it:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[21]
[21] Morgan & MilesMorgan & Miles [2007] FamCA 1230 at paragraph 74
The evidence
The hearing of this matter took place, in Mount Gambier, on 20 & 21 June 2013. Unfortunately there was insufficient time to enable counsel for each of the parties concerned to complete their final submissions. Accordingly it was necessary for written submissions to be prepared. Regrettably, these submissions were delayed. The mother’s were provided on 23 July 2013; the father’s on 9 August 2013.
The evidence in this matter consists of the affidavits of each of the parties; the affidavit of Mrs S; and the family report of Ms D, dated 5 May 2013; as well as the oral evidence of each of those persons, provided to the court during the two day trial in Mount Gambier.
In addition, there is one piece of documentary evidence. It is a letter dated 26 June 2013 from Ms H, a psychologist employed by Autism SA, which confirms that [X] was diagnosed with an autism spectrum disorder on 24 June 2013.
The examination, which has led to this diagnosis, was put in place prior to the hearing taking place. The implications of the diagnosis have not been examined at all, particularly in terms of what assistance both [X] and his parents are likely to need in future and where that assistance is best obtained.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observation and assessment of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
There are few issues of substance in dispute between the parties. The areas of contention arising between them being referable to matters of temperament and areas of emphasis in regards to what is important in parenting.
However, it is apparent to me that the parties’ current parental relationship can most aptly be described as being “rocky”. Even when the parties were in a relationship together, it also seems to me that they were never truly compatible. Certainly, this is Mr Tellam’s retrospective assessment. The issue of relocation and the outcome of the earlier interim hearing have brought relations between them to an all time low.
The parties essentially agree on the bare bones of their relationship. The father is forty. The mother is thirty-eight. They met, at their then mutual place of work, [C] in [N], in early 2003. Initially they were friends.
The parties began to live together in 2007, at Mr Tellam’s home in [N]. Around this time, the mother suffered a workplace injury. She was placed on light duties. In June 2008, she took a redemption of her worker’s compensation entitlements and left her employment. At the time she was heavily pregnant with [X].
The mother has not been in the paid workforce since, a source of some resentment for Mr Tellam, who believes Ms Calhoon has not pulled her weight financially, during the parties’ relationship and afterwards. He is a person who has a strong work ethic. He is proud of the fact that he owns his own home.
Ms Calhoon was diagnosed with depression in 2007. No extensive details have been provided of her condition, at this time, other than it has been “generally well controlled with medication”.[22] The diagnosis seems to have coincided with a period during which the mother was experiencing some difficulties at work, as a result of her injury. It also marks the period of time when she began to live with Mr Tellam.
[22] See the report of Dr W being Annexure KNC1 to the mother’s affidavit filed 6 June 2013
Mr Tellam deposes that Ms Calhoon’s pregnancy with [X] was not planned. Certainly, the early period of the parties’ relationship seems to have been an unsettled one. The parties existed uneasily together, in Mr Tellam’s home, following [X]’s birth. At one point, in November of 2008, the mother says that they were separated under the one roof.
Mr Tellam describes the mother as being “moody”. This is a description the mother also applies to Mr Tellam. She says the parties went for days without talking to one another. The situation must have been a tense and difficult one, perhaps exacerbated by the mother’s depression.
On any view, the parties did not have a firm base on which to parent [X]. Their relationship was never a well established one and perhaps their aspirations and dreams were different. It seems to me to have been marked by mutual resentment from the start.
Mr Tellam is clearly very work focussed and draws a strong sense of identity from his well developed work ethic. In these circumstances, it seems clear that the mother discharged the majority of parental responsibilities for [X]. Although a loving father, Mr Tellam was content to leave the vast majority of parental duties to Ms Calhoon. From Mr Tellam’s perspective, this was appropriate. For her part,
Ms Calhoon felt unsupported and under valued.
The parties’ relationship was marked by periods of separation but they were unable to let go of one another completely. In late 2009, the mother and [X] moved into rented accommodation in [M] and
Mr Tellam did not see [X] for a period of a few weeks. Thereafter, a pattern began whereby [X] spent every second weekend with his father.
During the latter course of 2010, the parties resumed their relationship. Whether it was as “boyfriend/girlfriend” or as “de facto partners” does not matter. However, the parties did not resume cohabitation, both maintaining separate residences. They lived together, in each other’s homes, on weekends, during which periods [X] obviously spent a lot of time with Mr Tellam. In these circumstances, there can be no doubt that [X] enjoys a close and loving relationship with his father.
Of this period, Mr Tellam deposes that, from his perspective, the parties never “took their relationship to a more serious level.”[23]For her part, the mother pursued relationship counselling with Mr Tellam. She seems to have wanted to pursue her relationship with him. To some degree, the parties remained emotionally enmeshed.
[23] See father’s affidavit filed 24 May 2013 at paragraph 15
Ms Calhoon does not present as an emotionally robust person. In this respect, during her evidence, it is notable that she broke down in a fit of weeping, when she was asked to describe her relationship with
Mr Tellam. It was her statement “in an ideal world, we’d still be together” which precipitated her flood of tears, necessitating a break in the proceedings. I did not think that her distress was feigned.
In November of 2011, Mr Tellam and Ms Calhoon went away together on a two week cruise. [X] was placed in the care of his maternal grandmother, in Adelaide. In cross-examination, Mr Tellam conceded that, in his view, the relationship between him and Ms Calhoon was “pretty much over by the time of the cruise”.
It was during the cruise that [Y] was conceived. The mother’s view is that the pregnancy was planned. The father does not agree. It is not necessary for me to resolve this evidentiary dispute, other than by saying that the parties appear to have been at complete cross purposes and the circumstances surrounding [Y]’s conception were far from propitious.
In early 2012, the parties ended their relationship. A short time afterwards, Mr Tellam commenced his relationship with Ms A. She too had worked at [C] for a number of years. Her marriage had broken down in 2011.
From Ms Calhoon’s perspective, the news of Mr Tellam’s relationship with Ms A precipitated a very significant emotional convulsion and extreme shock. On any view, she did not react well to the news, a fact which she acknowledges.
Mr Tellam presented in court as a man of few words, who maintained a flat unemotional demeanour. Of the period surrounding [Y]’s birth, he deposes, with an element of some understatement:
“Since [Y]’s birth the relationship with [Ms Calhoon] has gone from one extreme to the other. [Ms Calhoon] will one minute be saying that she loves me and the next that she hates me.”[24]
[24] See husband’s affidavit at paragraph 28
From the mother’s perspective, she felt rejected and deceived by
Mr Tellam. In my estimation, she was in a position of extreme vulnerability. Due to her pregnancy, she was withdrawn from anti-depression medication and was referred for cognitive behavioural therapy. She was identified as being at a high risk of contracting post-natal depression.
In respect of this period, the mother’s general medical practitioner,
Dr W writes as follows:
“[Ms Calhoon] had separated from her partner early in her pregnancy and had no family support locally. This would be a difficult situation for most women but [Ms Calhoon] is particularly vulnerable due to her prior history of depression. It is important that [Ms Calhoon] have a good support network, and I would strongly encourage her to remain where she feels most supported.”[25]
[25] Ibid at annexure KNC1
Mr Tellam agreed with my assessment that both he and Ms Calhoon fitted the description of being stubborn people. Neither of them seemed to me to be particularly adaptable people or capable of any great degree of empathy for the situation of the other. As such, neither seemed to have given to have any great thought to the implication of their respective preferred outcome, in the case, in terms of their ongoing parenting relationship with one another.
In this context, I asked Mr Tellam to consider how Ms Calhoon was likely to react emotionally to the prospect of potentially being kept in [M] indefinitely, as a result of his actions, against the background of the demise of their difficult relationship, which had coincided with the commencement of his apparently happy relationship with another person.
It seemed to me that Mr Tellam had not given close consideration to this central issue. After some pressing, he conceded that she would probably be as “mad as hell” for a period of time but would in time “accept it [and] settle back into life [in [M]] as she’s got friends here.” I am not as sanguine in this regard, as Mr Tellam and consider he may be naive in his assessment of Ms Calhoon and her likely reaction to such a situation.
Certainly, up to this point, Ms Calhoon has emphatically demonstrated that she has no intention to settle back into her previous life in [M], with any degree of ease. She has shown herself as implacable as
Mr Tellam. In this regard, she has kept up her rental of the [V] property. She has remained living with the children in temporary and uncomfortable accommodation in [M], returning to Adelaide whenever she can. She has made it clear that she is in [M] under an extreme level of sufferance.
Mr Tellam is critical of Ms Calhoon for not being proactive in looking for more commodious lodgings for herself and the children in [M]. He asserts that there is plenty of cheap housing in the town. This may be so, but in her refusal to seek it out, Ms Calhoon has bluntly demonstrated that she is unlikely to accept meekly the fate proposed for her by Mr Tellam.
In the first stage of her pregnancy with [Y], Ms Calhoon invited
Mr Tellam to attend at scans and medical appointments. She also asked Mr Tellam to baby sit [X] regularly. There is some conflict between them as to how readily Mr Tellam was willing to step into the breach because of his work commitments.
The distance is not so great that the children will have to travel by air, with all the difficulties and expense incumbent in air travel. The parties will be able to drive the distance in private motor vehicles or take the bus. Some of the mutually onerous aspects of this travel can be obviated by the parties agreeing to meet, in appropriate circumstances, approximately half way, at either [omitted] or [omitted].
Whilst she has been living in [M], against her wishes, Ms Calhoon has demonstrated that she is able to travel regularly to Adelaide, on the bus, with [X] and [Y], notwithstanding her limited financial resources. To use her terminology, she has made it happen because she has wanted to.
Ms Calhoon has given some thought as to how she would manage the journey in reverse. Her proposal involves a significant degree of reliance on her friend Ms M who, from the court’s perspective, is an unknown quantity. I have grave reservations that she will be able to commit her home, for Ms Calhoon’s convenience, for the indefinite future. Although Ms M may be willing to commit now, in the longer term, Ms Calhoon arriving regularly at her home may stretch the bonds of friendship.
However my greatest reservation arises as to whether Ms Calhoon herself will be able to maintain her commitment to making the journey, in reverse, for the next four years or so and will remain able to find the necessary fares regularly. It is likely to be onerous to travel, by bus, every three weeks or so, with two children of the ages of [X] and [Y], particularly given that, on her own case, Ms Calhoon has no strong emotional ties in [M].
Mr Tellam has bluntly said that he cannot afford to travel to Adelaide regularly to see the children. I think that there is a very real possibility that each party has over-stated their respective positions, as to these contact issues, to give support to their preferred outcome.
I accept that it will be difficult and expensive for Mr Tellam to come to Adelaide, perhaps prohibitively so, if it is once a month. But, like Ms Calhoon, it is likely to be the case that he will find the way, if he has to, on at least some occasions each year. The distance is not so vast and the expense so great that they must be regarded as constituting an impenetrable barrier to Mr Tellam ever coming to Adelaide.
In this regard, Ms Calhoon’s recently made proposals regarding block holiday time for [X] are significant. The relevant section speaks of a “child’s right to maintain personal relations and direct contact with both parents on a regular basis” [section 60CC(3)(e)]. The section does not specify that such relations are to be meaningful or specify the degree of regularity. In addition, the criterion is directed towards a substantial interference with such a right.
In this context, the comments of Kay J in Godfrey v Saunders[39] are apposite. The relevant legislation “aspires to promote…a meaningful relationship, not an optimal relationship”. The mother’s proposals for [X] and [Y] to spend time with their father cannot be considered optimal but, in my view, they do not constitute a substantial restriction on the children’s rights.
[39] See Godfrey v Saunders 2008 FLR 287 at 298
At the end of the day, I do not consider Ms Calhoon’s proposals, in respect of contact arrangements, to be ludicrous. They may be regarded as onerous and untested in the longer term but not, inevitably impossible or impracticable to implement, particularly with some goodwill and assistance from Mr Tellam and indeed from her parents.
If the children able to spend time with their father every few weeks, I do not consider that such an outcome with substantially affect their right to maintain personal relations with Mr Tellam and other member of their paternal family, particularly when regard is had to the other factors arising in the case, including Ms Calhoon’s own right to freedom of movement.
As the children grow older, they are likely to become more resilient to the difficulties created by distance and able to interact with their father through other means, such as the telephone, Skype or other forms of webcam. I appreciate that such alternatives are no substitute for direct physical involvement.
f) The capacity of the parties to provide for the children’s emotional and educational needs
Up to this point, Ms Calhoon has provided the far larger proportion of the children’s emotional needs. Mr Tellam has apparently been content to allow this to occur. It seems self apparent that, if Ms Calhoon is living in circumstances where she feels secure and contented, she will best placed to continue in her role as the major supplier of the children’s emotional sustenance.
Conversely, if Ms Calhoon is in a situation where she feels trapped and unhappy, this is likely to impact adversely on her capacity to provide for [X] and [Y]’s emotional needs. This is the view of Ms D, which I accept. Ms Calhoon is not an emotionally strong person or one with large stores of intrinsic self resilience. In addition, as indicated earlier, she is likely to be resentful towards Mr Tellam, if her freedom is curtailed and is his not.
In this regard, these comments of the Full Court in Fragomelli & Fragomelli [40] are relevant:
“The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare…
A child’s welfare may well be adversely affected if the custodian’s movements are restricted. It the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…”
[40] Fragomelli & Fragomelli (1993) FLC 92-393 at 80,023
This is the situation in this case. Ms Calhoon is unchallenged as [X] and [Y]’s custodial parent. Mr Tellam wishes to dictate to her where and how she is to live; frustrating Ms Calhoon’s modest but legitimate expectations. Such an outcome will not assist in Ms Calhoon’s emotional functioning and will have implications for the well being of the children.
I accept that Ms Calhoon is at the end of her tether emotionally in [M], where she feels unhappy and unsupported. Given her history of depression, this is not a situation conducive to her being able to cope with the demands of two young children, one of whom is highly active and challenging in his behaviour.
What are the implications of [X]’s recent diagnosis are unclear. However, once again, it would seem axiomatic that Ms Calhoon will be better placed to deal with them if she is living in the environment and circumstances of her choosing, rather than those imposed upon by court fiat, arising from Mr Tellam’s application.
g) The children’s maturity, sex, lifestyle and background
The backgrounds of the parties are broadly similar. As such, the mother’s proposal does not represent a dramatic departure for the children. Otherwise, I hope I have indicated throughout these reasons for judgement my awareness of the tender ages of both children concerned and the problems arising as a result.
h) Aboriginality
This is not a relevant consideration in this case.
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
I think both parents aspire to being the best possible parents they can be. Ms Calhoon has not been without her challenges in this regard due to her recurrent depression and sense of isolation resulting from being a single parent.
Mr Tellam has been content to leave the majority of the parenting of the children to Ms Calhoon. I agree with Ms D’s assessment that he has been very focussed on his work, both before and after [X]’s birth. He has not taken any extensive periods of time off work to assist
Ms Calhoon.
j) Family violence orders
k) Any family violence order
Family violence is not a consideration in this case. There are no relevant family violence orders applicable to the parties in this case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
I am concerned that the possibility of a moratorium, on the date of Ms Calhoon’s departure from [M], will lead to more rather than less litigation between the parties. Notwithstanding the difficulty and controversy, arising from the outcome, it seems to me that it is likely to be in the children’s best interests that a decision is made one way or the other in respect of Ms Calhoon’s application to relocate.
m) Any other relevant issue
One of Ms Calhoon’s major reasons for wanting to move away from [M] is so that she can be at some remove from her old life there. Essentially, she wants to move on. She also wants to be close to her family. These are understandable human aspirations and cannot be easily dismissed.
If denied, Ms Calhoon is likely to feel aggrieved towards Mr Tellam, form whom she has been separated for some time. Mr Tellam can move on and form a new relationship, but she cannot. As such, she is likely to feel that her past, and the relationships she formed in it, prevent her from having a viable future, certainly one of her own choosing.
It is difficult to quantify personal happiness in concrete terms. However, Ms Calhoon, by her actions since returning to [M], has eloquently demonstrated she is not happy in the town. I accept that she is likely to be much happier, if she lives in [V].
If Ms Calhoon feels personally happier, this is likely to flow onto [X] and [Y]. It is also a state of affairs, which is likely to make her a better parent. These considerations, abstract though they are, are of fundamental relevance to the best interests of [X] and [Y].
In addition, I am not at liberty to ignore Ms Calhoon’s legitimate expectations that she is entitled to live how and where she chooses, notwithstanding that she is parent of two young children. These considerations are particular germane in the present case, in which Mr Tellam is liable to no commensurate restriction on his chosen manner of living and is unwilling to countenance any alteration to it.
Equal shared parental responsibility
As the presumption of equal shared parental responsibility applies in this case, I am required to give earnest consideration to the children spending either equal time or substantial and significant time with both of their parents. Both options rely on Ms Calhoon being restrained (either explicitly or implicitly) from moving her residence from outside of [M], as Mr Tellam is not willing to consider moving to Adelaide and I cannot compel him to do so, even if such an outcome was reasonably feasible.
The striking feature of the current case is that Mr Tellam is not actively seeking either an equal time or a regime of time which equates to substantial and significant time. Rather he is content to allow
Ms Calhoon to discharge the majority of the day to day parenting of the children, on conditions she does so in [M]. He will not consider moving to Adelaide or otherwise changing his current mode of life.
In purely hypothetical terms, the most desirable outcome for the children would be one where they are able to see their father easily, in all manner of circumstances, every few days or so. But such an outcome would come at a price. In order to achieve it, Ms Calhoon would have to be shackled to [M], possibly for the remainder of the [X] and [Y]’s childhoods.
Inevitably she would feel hard done by and would regard [M] as a prison and Mr Tellam as her gaoler. In this regard, I regard Mr Tellam’s view that Ms Calhoon would soon get over her disappointment, as such an outcome, as being hopelessly naïve and optimistic.
The best interests of a child are not the only consideration relevant to any orders to be made following the application of the presumption of equal shared parental responsibility. The court is also mandated to consider issues relating to what is objectively practical, based on the reality of the situation in which parents and children find themselves, not what is theoretically desirable for any children concerned.[41]
[41] See MRR. v GR (supra) at paragraph 15
In my view, the chief reason why the regime advocated by Mr Tellam is impractical is that it will condemn Ms Calhoon to an unhappy life, in which her psychological equilibrium is likely to come under significant challenge with potentially to cause significant adverse consequences to her parental capacity and so undermine the well being of [X] and [Y]. In my view, it is not a reasonable feasible outcome for this family.
Conclusions
Relocation cases are very difficult. No one factor is determinative. Necessarily they require the exercise of an individualised discretion. It has been said that they entail an intuitive synthesis. I mistrust any reference to intuition in the judicial process.
The rationale of judgment is to be didactic. Although, as I have pointed out, relocation cases inevitably involve irreconcilable considerations, an attempt must nonetheless be made to reach conclusions which are amenable to the application of reason.
Ms Calhoon is the children’s unchallenged primary carer. My analysis of the various section 60CC factors leads me to the conclusion that the children should continue to live predominantly with her. She has been a good mother to the children, notwithstanding the difficulties confronting her.
To his credit, Mr Tellam does not wish to end the arrangement in which the children will continue to live mainly with their mother. He is sensitive to the reality of the situation and the children’s developmental needs. Rather he wishes to restrain Ms Calhoon, in [M], so that what he regards as the most desirable regime of parenting the children may be perpetuated.
The presumption of equal shared parental responsibility applies in this case. The rationale of the presumption and other related provisions of Part VII of the Family Law Act is that children benefit from being involved with both their parents and knowing them intimately. They benefit in myriad ways from having a meaningful level of relationship with their parents.
The shared parenting provisions of the Family Law Act are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the effective negation of a parent’s rights, as a citizen, to live how and where he or she chooses.
In this case, I have come to the conclusion that it would be neither in [X] and [Y]’s best interests nor reasonably practicable that Ms Calhoon be indefinitely restrained in [M], so that the ideal parenting option, preferred by Mr Tellam, may be implemented, at no intrinsic personal cost to him but at great personal cost to Ms Calhoon.
The major reason I have for reaching this conclusion is that I accept Ms Calhoon is currently very unhappy and dissatisfied with her life in [M] and this state of affairs has fundamental implications for the best interests of [X] and [Y]. I do not doubt that Ms Calhoon will be significantly more happy living in [V], near her parents. This will have flow on effects for [X] and [Y].
Ms Calhoon is a vulnerable parent. She has a history of depression. She does not have deep stocks of personal resilience or sources of emotional support in [M]. Her level of vulnerability has obvious implications for the emotional well being of [X] and [Y] in the short, medium and longer term.
A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this is a factor of prime importance to any child involved, particularly if that parent is the one who has had the majority of responsibility for caring for the child concerned.
In this case, Ms Calhoon has provided far more of the nuts and bolts parenting, for both [X] and [Y], in the period since their respective births. Mr Tellam concedes that she has discharged her responsibilities appropriately in this regard. For understandable reasons, Ms Calhoon now wishes to move on with her life, in a manner which she thinks will benefit her and the children.
In my view, it is appropriate that [X] and [Y] should continue to live predominantly with their mother and she should be entitled to move to live with them in [V], as is her preference. I appreciate that this outcome must have implications for the nature of the children’s on-going relationship with their father, particularly so far as [Y] is concerned.
The distance between [M] and [V] is significant, but it remains a journey which can be completed within a day. Ms Calhoon and indeed her parents have shown that the journey came be accomplished when needs must. As such, the distance, of itself does not mean that the children will necessarily be deprived of having a relationship with their father.
I am satisfied that [X]’s strong relationship with his father can withstand the rigours imposed by the distance between [M] and Adelaide. On balance, I accept Ms D’s assessment that [Y] is likely to follow in her older sibling’s footsteps, particularly if Mr Tellam remains a familiar and comfortable presence in the mother’s household.
In this regard, I do not regard Ms Calhoon as being motivated by malice towards Mr Tellam or some ulterior motive in her wish to move to [V]. Her desires in this regard are modest, but no less important for that – she wishes to be close to her parents and live in a place which is familiar to her.
Ms Calhoon has proposed an ambitious regime designed to ensure that the children’s entitlement to maintain personal relations with their father is not unduly compromised. Given her straitened financial circumstances and her proposal’s reliance on the good offices of her friend, Ms M, it will be a difficult one to implement in the long term.
However, I am satisfied that it is a workable in theory and I will hold Ms Calhoon to it. She will be bound to ensure the children spend time regularly in [M], at her expense. In these circumstances, it does not seem unreasonable expect Mr Tellam to bear the costs of travel arising from the longer blocks of holiday time, as Ms Calhoon proposes.
In the short to medium term, [Y]’ tender years disqualify her from spending longer blocks of time with her father, along side [X]. I will do my best to dovetail the times [Y] is to spend with her father, with the arrangements attaching to [X].
At the end of the day, I cannot ignore Ms Calhoon’s personal feelings and expectations, particularly as Mr Tellam is not prepared to make any commensurate sacrifice for her and the children. He asserts it is impossible for him to move away from [N] but perceives no double standard in his desire to keep Ms Calhoon in [M] against her wishes.
I appreciate that this outcome will be heartbreakingly difficult for
Mr Tellam and he will find it difficult to accept. Inevitably he will think that Ms Calhoon’s aspirations and dreams have been prioritised over his own. That his not my intention. Rather it is an inevitable corollary of the fact that this case was incapable of providing an outcome which was acceptable to both Mr Tellam and Ms Calhoon.
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 four hundred and fifty (450) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 5 September 2013
Key Legal Topics
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Civil Procedure
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