Tellam & Calhoon 2013 FMCAfam 264

After separating the mother of children aged 4 years and 7 months lived 32 kilometres from the father who saw his children every fortnight.  The father re-partnered and the mother had difficulty adjusting to his new relationship.  The mother then unilaterally relocated to a city 400 kilometres away, saying that she had depression and needed to be near to her supportive family.

The mother complained that the father had been controlling towards her and gave examples.  Examples included the father asking the mother to purchase groceries within a budget, to respond to the baby’s cries in the early morning, to change nappies, even when the mother was ill.  The judge ruled that these examples reflect on the father’s parenting capacity and are not instances of controlling or coercive behaviours that reflect family violence.

The judge ruled that the legal definition of substantial and significant time means that a child spends time with both parents on both weekends and some weekdays, and enables both parents to be involved in the child’s daily routines and events of significance.    The judge noted that previous legislation had emphasised the importance of maintaining stability for a child pending a final hearing.

The judge found that the mother had experienced depression for many years and her depression had previously been managed by medication.  The mother had lived in a town near the father for about a decade and presumably had supportive contacts there.

The judge found that relocation is important for a young child as distance affects contact which in turn affects the relationship between an child and parent.  The judge ruled that relocation was a matter for final orders rather than for interim orders, as interim orders are suitable only for matters that need to be dealt with urgently and there is not need to obtain a consultant’s report.  The judge ordered that the mother return to live within 40 kilometres of the town where the father lived, and ordered that the children live with the mother and spend time with the father, on the condition that the mother’s residence changed as ordered.