Tellam and Calhoon - [2013] FCCA 1118

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tellam and Calhoon

Details

AGLC: TELLAM & CALHOON [2013] FCCA 1118
Case: [2013] FCCA 1118
Decision Date: 5 September 2013

CaseChat Overview and Summary

This matter concerned the parenting arrangements for two children, [X] and [Y], born in 2008 and 2012 respectively, between their parents, the mother and the father. The proceedings were before Judge Brown.

The court was required to determine the nature of parental responsibility, the process for making major long-term decisions concerning the children, and the specific arrangements for the children to spend time with each parent. Additionally, the court needed to address communication protocols between the parents regarding the children's welfare, including health and education, and to establish orders concerning the children's living arrangements and holiday periods.

In its determination, the court ordered that the parties have equal shared parental responsibility for the children. This responsibility necessitates joint consultation on all major long-term decisions, including education, religious and cultural upbringing, health, names, and significant changes to living arrangements. If joint decisions could not be reached, the parties were directed to consult with a family dispute resolution practitioner. The court also made detailed orders regarding the father's time with each child, specifying durations and timings for weekends, school holidays, and end-of-year holidays, with provisions for these arrangements to evolve over time. Specific orders were also made for Christmas and Easter periods, including alternating arrangements and designated locations for exchanges.

The court further ordered that the children live with the mother and permitted her to reside with them in [V], Adelaide. Provisions were made for ongoing communication between the parents, including the use of a communication book and the authorisation for schools and medical practitioners to provide information to both parents. Injunctions were issued restraining both parents from denigrating the other in the children's presence or discussing the proceedings with the children. All extant applications were dismissed.

Orders

Orders of the court

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;

(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 Act 1975 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.

10.

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;

11.

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.

12.

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.

13.

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.

14.

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.

15.

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.

16.

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.

17.

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.

18.

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.

19.

All extant applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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