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…

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 and Calhoon [2013] FMCAfam 264
Case: [2013] FMCAfam 264
Decision Date

CaseChat Overview and Summary

In Tellam and Calhoon, the Federal Magistrates Court of Australia dealt with an interim application concerning the relocation of children following the separation of the parents. Mr Tellam and Ms Calhoon are the parents of two children, [X], born in 2008, and [Y], born in 2012. Until recently, the mother lived in [M] with the children while the father lived in [N] approximately 35 kilometres away. In January 2013, the mother moved the children's residence from [M] to suburban Adelaide without prior consultation with the father. The father sought the return of the children to the [M] area, while the mother sought to remain in Adelaide with the children. The mother argued that she suffers from depression and has familial support in Adelaide, while the father argued that he cannot afford to drive regularly to Adelaide to spend time with the children.

The court had to decide whether the children should return to the [M] area or remain in Adelaide with the mother. The legal issues included 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.

The court found that the best interests of the children required them to maintain a meaningful relationship with both parents. It was important to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence. The court also considered that it is usually 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.

The court ordered that the children return to an area within a radius of 40 kilometres of the [M] Town Hall, no later than midday on 28 March 2013. The parties have equal shared parental responsibility for the children, and the children live with the mother provided she lives within a radius of 40 kilometres of the [M] Town Hall. The father has spending time with the children as outlined in the judgment. The children are to be exchanged between the parties at a location as agreed between them, or failing agreement, at the [M] Police Station. The reasons for the judgment were to be transcribed and released to each of the parties. Further consideration of the matter was adjourned to 16 April 2013 at 9:30 am in the [M] circuit.

Orders