Tellam and Calhoon
[2013] FMCAfam 264
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TELLAM & CALHOON | [2013] FMCAfam 264 |
| FAMILY LAW – Interim arrangements for care of children aged 4 years & 7 months – children live with mother – until recently mother lived in [M] and older child spent time with father in [N] approximately 35 kilometres away – in January 2013 mother moved children’s residence from [M] to suburban Adelaide without prior consultation with father or obtaining his approval – unilateral relocation – nature of interim hearing – father seeks return of children to [M] area – mother seeks to remain in Adelaide with children – mother asserts she suffers from depression and has familial support in Adelaide – mother has borrowed money to lease premises in Adelaide – should final hearing be expedited – principles relating to unilateral relocation considered – meaningful relationship – best interests. |
| Family Law Act 1975, ss.60CC; 65DAA |
| Taylor & Baker (2007) FLC 93, 445 AMS & AIF (1999) FLC 92,852 Morgan & Miles [2007] FamCA 1230 Fragomeli & Fragomeli (1993) FLC 92-393 |
| Applicant: | MR TELLAM |
| Respondent: | MS CALHOON |
| File Number: | ADC 304 of 2013 |
| Judgment of: | Brown FM |
| Hearing date: | 5 March 2013 |
| Date of Last Submission: | 5 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 5 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hancock |
| Solicitors for the Applicant: | Degaris Lawyers |
| Counsel for the Respondent: | Mr Eid |
| Solicitors for the Respondent: | Andrew Hill & Co |
ORDERS
This matter be listed for final hearing before Federal Magistrate Brown on 20 & 21 June 2013 at 10.00am in the Mount Gambier circuit NOTING 2 days hearing time has been allocated.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 23 May 2013.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 June 2013.
On or before 6 June 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship [X] born [in] 2008 and [Y] born [in] 2012 attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on or before 9 May 2013.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
No later than midday on 28 March 2013 the mother return the children [X] born [in] 2008 and [Y] born [in] 2012 to an area within a radius of forty (40) kilometres of the [M] Town Hall.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children.
The children live with the mother provided that she lives within a radius of 40km radius of the [M] Town Hall.
The father spend time with the children prior to the mother returning to [M], in Adelaide on the weekend of the 16 to 17 March 2013 as follows:
(a)with [Y] at the mothers home between 11:00 am and 1:00 pm on 16 March 2013 and with [X] between 1:00 pm and 5:00 pm on 16 March 2013; and
(b)with [Y] at the mothers home between 11:00am and 1:00 pm on 17 March 2013 and with [X] between 1:00 pm and 5:00 pm on 17 March 2013.
On the mother’s return to [M]:
(c)with [X] every alternate weekend commencing 29 March 2013 from 3:00 pm at the end of school until 3:00 pm the following Sunday and each intervening week on each Thursday commencing 4 April 2013 from 5:30 pm to 7:30 pm.
(d)With [Y] from 3:30 pm until 5:30 pm on alternate Fridays commencing 29 March 2013 and on the intervening Thursday commencing 4 April 2013 from 5:30 pm to 7:30 pm.
The children be exchanged between the parties at a location as agreed between them and failing agreement to be the [M] Police Station.
The reasons be transcribed and released to each of the parties.
Further consideration of the matter is adjourned 16 April 2013 at 9:30am in the [M] circuit.
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 MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 304 of 2013
| MR TELLAM |
Applicant
And
| MS CALHOON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns what lawyers call an interim relocation case.
Mr Tellam and Ms Calhoon are the parents of [X], born [in] 2008, and [Y], born [in] 2012.
Until 26 January 2013, the mother lived in [M] with [X] and [Y]. The father lived in [N] about 32 kilometres away. On this day, the mother moved to [V] in the southern suburbs of Adelaide. It is well over 400 kilometres from [M] to Adelaide. It takes about four hours to drive.
Ms Calhoon is in receipt of a supporting parents benefit. Including rent assistance and child support, which she receives from Mr Tellam, she receives $1150.00 per fortnight. Mr Tellam is a [occupation omitted], earning $673.00 per week after tax. Last time he drove to Adelaide, the fuel cost him $211.00.
It is Mr Tellam’s position that he cannot afford to drive regularly to Adelaide to spend time with [X] and [Y], whom he loves. Accordingly he believes that, if the children remain living in [V], they will lose the benefit of having a meaningful, close and loving relationship with their father, which will be contrary to their best interests.
Ms Calhoon says she moved from [M] because her family, particularly her parents and brother, live in [V]. She felt unhappy and unsupported in [M]. Because she has suffered from depression for many years, it is her case that she is in particular need of family support, which is simply not available to her in [M].
In early February, she signed a lease on a residence in [V]. She has borrowed $1740.00 to pay the bond and rent in advance from the Housing Trust of South Australia. It would be financially difficult for her to break her lease and go back to [M].
The parties met in 2003 and formed a relationship in 2007, which saw them living the father’s house in [N]. In late 2009, the mother moved into [M]. For a time, the parties were in a relationship but living in different homes. They separated and then got back together. [Y] was conceived during a holiday cruise, which the parties took together.
There is no dispute that they finally separated in early 2012, when
Ms Calhoon was pregnant with [Y]. Since they separated, Mr Tellam has commenced a new relationship. Ms Calhoon acknowledges that she has had some difficulties adjusting to this situation.
The parties disagree how involved Mr Tellam has been in [X]’s case. The mother asserts that he was not always reliable in respect of spending time with [X]. The father says he saw [X] regularly on weekends.
Given [Y]’s tender years and the date of the parties’ separation, it is clear that Mr Tellam’s relationship with [Y] is in a very early stage of development. He has only spent a few hours with her whilst
Ms Calhoon has been close by.
In these circumstances, Mr Tellam argues that it is imperative that the Court brings about an arrangement through which he can spend time with [Y] regularly, so that the child can have a bond or connection with him.
The father owns a house with a mortgage in [N]. He has worked nearby for a decade at least. It is his position that he cannot move to live in Adelaide in tandem with Ms Calhoon and the children.
Ms Calhoon told Mr Tellam that she was moving to live in Adelaide in mid January. He wasted no time in bringing these proceedings which were filed on 29 January 2013 and made returnable in [M] on
7 February 2013 during the court’s circuit there. Ms Calhoon was personally served with the application on 1 February 2013.
On 7 February, the mother did not have legal representation. The proceedings were adjourned until 22 February. Ms Calhoon appeared before the court via the telephone. I advised her that it would be unwise of her to assume that she would be able to remain in Adelaide. She apparently signed her lease the next day.
The proceedings were adjourned on 22 February because Ms Calhoon had still not finalised her legal advice. In the meantime, orders were made for Mr Tellam to spend time with [X] and [Y] in Adelaide.
Mr Tellam had indicated to me the most recent four-day trip to Adelaide cost him almost $1,000.00. In addition to fuel he had to pay for accommodation at a motel. It is his case that he simply cannot afford this level of expenditure regularly.
It was clearly not a consensual parenting decision that the mother and the two children should move away from [M]. It is also apparent that the move has implication for the children’s relationship with their father. The move is likely to make it significantly more difficult for the children to spend time with one of their parents.
This is one of the definitions of “major long term parenting decision” contained in section 4 of the Family Law Act. Accordingly this is what lawyers categorise as a unilateral relocation.
It arises at the interim stage against a background of urgency. Given the urgency, the hearing has to take place in a shortened form without evidence being tested through a process of cross-examination.
In addition, at the interim stage, there is no time for a family report to be prepared which provides an independent and expert assessment of the needs of the family concerned.
As a result, because of the limited nature of the evidence, the court is not in a position to resolve factual issues in dispute between the parties at the interim stage.
The major issues in dispute concern the following:
·the father’s prior involvement with [X];
·the implications of the mother’s depressive illness for her parenting of [X] and [Y] in a location not of her choosing away from familial support; and
·the nature of the parties’ relationship. In this regard, the mother asserts that the father was controlling of her.
Not withstanding the court’s difficulties in resolving these issues at the interim stage. The court must still make a decision, pending final hearing.
The final hearing will be scheduled for Mount Gambier on 20 and 21 June 2013. This is far sooner than the matter would be reached in Adelaide. I am advised that it is also sufficient time for a family report to be prepared.
At neither the final nor the interim stage does the father propose the children live him. For [X], he proposes alternate weekend time with him as well as Thursday afternoons in the other week and some time on special occasions.
For [Y], he proposes a regime of incremental increases in time starting with periods of two hours twice per fortnight. He seeks that the parties should have equal shared parental responsibility for [X] and [Y].
It is the essential underpinning of his case that Ms Calhoon and the children return to live in [M], pending final hearing.
The mother agrees that the parties should have equal shared parental responsibility for [X] and [Y]. She wishes, retrospectively, to have the court’s authority to live with the children in [V].
If this occurs, she proposes that the children periods of monthly time with their father, alternating between Adelaide and [N]. In the case of [X], it would be on weekends from Friday afternoon until Sunday afternoon. In [Y]’s case, for two hours on Friday, increasing after six months to four hours and then, gradually, to overnight.
She has, ostensibly at least, not given consideration to any proposals postulated on the basis that she will return to live in [M], at least in the short term. From both parties’ perspectives, it is either one thing or the other. Accordingly, at the interim stage, the case presents no obvious or easy solution.
Whatever is the outcome, one parent will feel marginalised and unheard by the court. If I do what the mother wants, the father will feel his relationship with [X] and [Y] and their relationship with him is under threat, and the mother is able to disregard his parental role in [X] and [Y]’s lives with impunity.
If I do what the father wants, the mother will feel she cannot do what she wishes with her life. She will be compelled to return to a location which is unpalatable to her because of the application of a person with whom she has ended her relationship.
There will also be questions surrounding this outcome:
·namely, where will the mother live;
·how will she afford to move back to [M], given her debt to the housing trust and the consequence of her breaking her lease in [V];
·will she be able to cope psychologically with the move back, given her depression;
·what are the implications of this state of affairs for [Y] who, at eight months of age, is dependant on her mother to supply every aspect of her care.
This is not an end to the questions arising. If I do what the mother wishes, the unescapable issues are:
·how will the parties manage the children spending time with the father, given both parties’ limited income and the distance between [M] and Adelaide;
·what are the implications of this for the children’s relationship with their father –
Ø firstly, for [X] who knows his dad, and
Ø secondly, for [Y] who is yet to develop any deep relationship with him.
The options for the court seem to fall between the following:
·Maintain the current status quo, on the basis that this is the least unsettling arrangement for the mother and the children, particularly [Y], whilst awaiting the expedited final hearing, which is a comparatively short time away and which will provide a venue for further evidence from both the parties and the court’s appointed expert;
·or order the children’s return to the [M] area and fashion orders in the light of this outcome pending trial.
The legal principles applicable
I turn to the legal principles applicable. In making the interim decision as at the final stage, the best interests of the children affected by the decision remain the most important consideration.
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act at section 60CC.
The difference between an interim and a final hearing is one of procedure. Interim hearings do not determine the final arrangements for a child’s care where its final proceedings do. Interim proceedings are necessarily provisional in nature and last until further hearing or order.
Section 60CC creates two classes of consideration which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it. There are two primary considerations which are set out in section 60CC(2)(a) and (b), namely:
(a) the benefits of the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Prior to recent legislative amendments these considerations were not formally ranked in regards to one another. They have been referred to in a number of case decisions of the Family Court as being twin pillars, the importance of which depends on the circumstances of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Family Law Act, it is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b). This, of course is the consideration dealing with abuse, neglect and family violence. These considerations are now given priority.
Other criteria relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of an individual child’s circumstances may be addressed in order which the court makes. The aim of the legislation is to make an idiosyncratic order for the child which is in his or her best interests.
Because of the importance the legislation has placed on both a child’s parents being involved meaningfully in their child’s life, subject to child protection concerns, the Family Law Act, in section 61DA, has created the presumption of equal shared parental responsibility.
In this case both parties agree that the presumption applies and accordingly the court is directed by application of section 65DAA to consider, firstly, whether the child concerned should spend equal periods of time with both of his or here parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
Then, 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 considerations of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act at 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 their 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.
In this legislative context, the mother’s unilateral move of the children from [M] to Adelaide creates significant issues and ostensibly, at least, frustrates the import of the legislation.
In Taylor & Baker[1]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.
[1] Taylor & Baker (2007) FLC 93, 445
The High Court, in AMS & AIF,[2] has said the relocation cases require particularly close and delicate analysis of the various issues involved. Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, especially in terms of their parental relationships.
[2] AMS & AIF (1999) FLC 92,852
In addition, the determination of a relocation issue at the interim stage may make the need for a final hearing redundant. In this case if I accede to the mother’s position it may be pointless having a final hearing, particularly regarding the father’s application that the children should live in the [M] area.
For reasons such as these, the Full Court of the Family Court has indicated that it is preferable that issues recent development which significantly alters the relationship of the children concerned in regards to one or other of their parents, particularly if that recent development has been created by the actions of one parent alone.[3]
[3] See C & S [1998] FamCA 66
In this case the mother’s actions, in my view, have significantly altered the relationship of [X] to his father and potentially the relationship of [Y] as well. It’s also clear to me that this development has been as a result of the actions of Ms Calhoon alone.
C & S was decided prior to the Family Law Amendment Shared Parental Responsibility Act 2006. Prior to the amending Act there was a focus on maintaining stability and arrangements for a child pending a final hearing.
Accordingly, at the interim stage the court was directed to exercise considerable caution in respect of relocation issues, particularly unilateral relocations, which occurred independently of the other parent concerned.
In Morgan & Miles[4] was a case which arose after the shared parental responsibility amendments were implemented. In the case Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C&S, remain apt and relevant to determination of these cases.”
[4] Morgan & Miles [2007] FamCA 1230
This is such an abridged interim hearing. In this context I must examine the situation confronting the mother, particularly whether she was confronted by a situation of such emergency that it was necessary, in order to secure [X] and [Y]’s best interests for her to move away from [M]. In conducting this examination, I will now turn to a consideration of the applicable section 60CC factors.
In her affidavit material the mother describes the father as being controlling of her in the past. By way of example she deposes as follows:
“He would give me an allowance of $100 per week to do all of the shopping for him and the cats, myself and [X]. The applicant left me to do all of the parenting of [X]. For example, the applicant father never changed a nappy until [X] was two years of age. The applicant father expected me to carry out all parenting duties, for example, even when I was up half of the night and had very little sleep and the applicant father was working afternoon shifts. If [X] cried during the morning whilst the applicant father was sleeping he would yell at me to get up and see to [X] and keep him quiet so as not to disturb him.
By way of another example, on one occasion during the relationship I was getting a massage at [M] when the applicant father telephoned me and told me to get home immediately to change [X]’s nappy which was dirty, even though it was a 30 kilometre trip to return home and the applicant father was present at home with [X]. On another occasion during the relationship I had been suffering from pneumonia for about two and a half months and instead of the applicant father assisting in caring for [X] I had to get the maternal grandmother to assist me to care for him.”
In my view, these are criticisms of the father’s parenting capacity, rather than matters relating to family violence, as it is defined in section 4AB of the Family Law Act. I do not accept that the behaviour complained of amounts to coercive or controlling behaviour of the wife per se.
In these circumstances it would seem to be the case that the court is obliged to give significant consideration to the children benefiting from having a meaningful level of relationship with their father.
If Mr Tellam lives in [N] and the mother, [X] and [Y] live in [V], it seems difficult to see how the children will have a meaningful level of relationship with their father.
At best they will be able to see him irregularly. [Y] has little, if any, relationship with the father. She is of the stage of her development when she is beginning to form attachments to others apart from her primary provider of care.
The years of early childhood are usually central for the formation of such relationships and attachments. [X], at four and a half, needs to see his father as regularly as possible. Neither child can be described of being of an age where their relationships with their father are fully developed.
Accordingly, in [X]’s case there is a real danger, in my view, that he may lose a sense of connection and warmth with his father if he does not see him fairly regularly. For a child of [X]’s age, four weeks is a very significant period of time indeed. Obviously [Y] has no conception of time at the present point and as I have indicated it is clear that she has little, if any, relationship with her father presently.
These children are not teenagers or anywhere near approaching the level of maturity where it could be said that their relationship with their father is in a developed state. On any view these relationships are particularly susceptible to the pressures of distance.
In addition, [X] is not of an age where he can easily maintain his relationship with his father through electronic form such as the telephone or internet. In addition, the parties are not well resourced financially to manage the distance involved.
The mother is in receipt of legal aid and her weekly finances are stretched. The father is a modest income earner with little, if any, surplus cash.
As such, in my view, the distance involved in the mother’s unilateral move must have grave implications for the children’s level of relationship with their father and how they would benefit from it in the short, medium and longer term. These are thorny issues to grapple with at the interim stage.
As I have already indicated the Full Court has indicated that issues of relocation are more properly addressed at the final hearing stage. I accept that the mother is dissatisfied with her life in [M]. I also accept that she is not a robust person psychologically, however, the evidence she has provided in respect of her depressive illness is not extensive. The letter from Dr W says as follows:
“[Ms Calhoon] has been a patient at [omitted] Medical Clinic since 2007 but I was her GP from 5 December 2011 to 25 September 2012. I had seen [Ms Calhoon] for shared care of her pregnancy and for management of her depression. [Ms Calhoon] has struggled with depression for many years but was generally well controlled with medication.
During her pregnancy she was identified as high risk of post-natal depression and she was also referred to cognitive behaviourable therapy with a mental health provider. [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.”
From this letter two factors emerge: firstly, the mother’s depression has been generally well controlled with medication; and secondly, she did not, it would seem, develop post-natal depression following the birth of [Y].
Ms Calhoon has lived in [M] and [N] for close to a decade. She is not a stranger to the area. By reasonable implication she has some friends and sources of support in the town, not the least with her general medical practitioners.
The mother has been in Adelaide for around six weeks. In financial terms a revision back to [M] has the potential to be extremely deleterious for her. The pressures of finding accommodation for herself in [M] and her resultant financial worries have the obvious potential to reverberate for [X] and [Y] and to distract the mother from providing the optimal level of care for both of them.
In my view this is a significant factor, particularly given that the mother is not robust psychologically, however, there is no getting away from the fact that the mother’s move was unilateral and gave scant regard to how the children would interact with their father in the short, medium and long term.
It also seems to be the position that the mother has had some assistance in the past with caring for [X] from Mr Tellam’s mother. In these circumstances it would seem probable that [X] has a significant level of relationship with his paternal grandmother. She has provided an affidavit in these proceedings and deposed as to her concern regarding the potential for her to lose her relationship with [X] and indeed with [Y].
In my view, the evidence does not indicate that Ms Calhoon was facing a significant level of emergency in her life which warranted her precipitated in moving to Adelaide with the children, particularly as she was on notice that it would be unwise of her to make long-term commitments whilst the matter was before the court.
I am not satisfied that the parties had either the financial or the personal commitment to make the mother’s proposal for time work even in the short term. At this interim stage it is my finding that the best interests of the children dictate that they should live in [M] so that they may maintain some form of relationship with their father.
At the end of the day it is a difficult decision. It is difficult because I accept that the mother has valid and understandable reasons for wanting to live in Adelaide, where she will be close to those who love and support her. She is also undisputedly the primary carer of the two children concerned, one of whom is totally dependent upon her.
In these circumstances her personal level of contentment and satisfaction with her lot in life must have implications for the wellbeing of both [X] and [Y]. It is often said to be axiomatic that a happy parent is likely to be a more competent parent.[5]
[5] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
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 children concerned. I am also well ware of the rights which have been read into the Australian Constitution by the High Court which indicate that citizens have an entitlement to freedom of movement.
I am not in the position to ignore Ms Calhoon’s legitimate desire to live in a location where she believes she will be happy and secure, however, these issues arise at the interim stage. They are difficult and problematic issues which are more suited to being dealt with at the final hearing stage.
As I say, I must be careful not to pre-empt Mr Tellam’s legitimate expectation that his application for final orders will be properly considered at the final hearing stage. The court, for many public policy reasons, should discourage unilateral parenting decisions made by one parent in the absence of any input from the other which make it significantly more difficult for the other parent to maintain relations with the child or children concerned.
In this case I have grave reservations that, if I accede to the mother’s position, it will mean that [X] and [Y] do not have any form of relationship with their father, let alone a meaningful one given the distance between Adelaide and [M] and the parties’ straightened financial circumstances.
How the issue is to be potentially managed long term is an issue for the final hearing and prior to that hearing it is my view that the pre-existing status quo should be reinstated.
For those reasons, I will order that, no later than midday on 28 March 2013, the mother return the children, [X] born [in] 2008 and [Y] born [in] 2012 to an area within a radius of 40 kilometres of the [M] Town Hall.
As I say, it is a legitimate response to the mother’s desire to move from [M] to Adelaide that there be an expedited hearing of such an application and I will, as far as I am able, make an order expediting the hearing. However, for the reasons provided, I am satisfied that notwithstanding this level of expedition, it is in the best interests of the children that pending that final hearing they return to live in [M].
Following the mother’s return of the children to [M], until further or other, I will order that the parties have equal shared parental responsibility for the children but, given prior care arrangements for [X] and [Y] the children concerned live with the mother provided she lives within a radius of 40 kilometres of the [M] Town Hall.
I propose that the father spend time with the children, prior to the mother’s return to Adelaide, in Adelaide on the weekend of 16 and 17 March. What I propose is that if the father is able to come to Adelaide on that weekend that he spend time with [Y] and the mother’s home between 11am and 1pm on 16 March and with [X] between 1pm and 5pm 16 March and with [Y] at the mother’s home between 11am and 1pm on 17 March and with [X] between 1pm and 5pm on 17 March.
Neither party has given any great consideration, I think, to what should occur in the short term but subject to any submissions they may want to make I propose making those orders.
On the mother’s return to [M], I propose that the father spend time with [X] on alternate weekends commencing 29 March which is a Friday from 3.30 pm at the end of school on each alternate weekend until 3 pm the following Sunday and in the intervening week on each Thursday commencing 4 April 2013 from 5.30pm to 7.30pm and with [Y] from 3.30pm until 5.30pm on alternate Fridays commencing 29 March 2013 and as well as on the intervening Thursday commencing 4 April 2013 from 5.30pm to 7.30pm. That is essentially what Mr Tellam proposed.
The mother, Ms Calhoon, for obvious reasons has concentrated on her preferred option and it may be that there are practical implications from her point of view of those orders. Neither party has given any thought as to where the children are to be exchanged.
Obviously what follows from these reasons for judgment will create an atmosphere of difficulty and possibly confrontation between the parties. In these circumstances, I propose that the children be exchanged between the parties at a location to be agreed between them but failing agreement to be the [M] Police Station.
One of the issue in this case is that the children have different developmental needs. [Y] is eight or nine months of age and [X] is four and a half years of age. In those circumstances it is inappropriate for [Y] to be away from her primary carer for significant periods of time.
On the other hand [X] is used to such arrangements as he is older and more emotionally robust. In those circumstances I have elected to make [Y]’s periods with her father at the commencement of each of the longer periods with [X].
I concede that that may have some practical implications. The parties may want to see how those practical implications can be dealt with in the short to medium term. There are two options. Those discussions can occur now or they can occur in the short to medium term and I can grant the parties liberty to relist the matter or I can list the matter when I am next in [M] on, say, 16 April 2013 at 9.30 am.
I will also order that these reasons be transcribed and released to each of the parties. I accept that it is something of an ordeal to listen to 55 minutes of a lengthy orally delivered judgment. So I will order that the reasons be transcribed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 5 March 2013