GREEN & DONNELLY

[2011] FamCA 404

FAMILY COURT OF AUSTRALIA

GREEN & DONNELLY [2011] FamCA 404

FAMILY LAW - CHILDREN - With whom the children live and spend time - Where the parents had a shared care arrangement in the past - Where the parents now live a large distance apart -   Where the children are settled in the father's town - Where there are allegations of violence, drugs and alcohol abuse against both parties - Where the parents' relationship is dysfunctional and it is alleged there has been a violent and abusive past

FAMILY LAW - EXPEDITION - Where both parties question the capacity of the other parent to look after the children - Where the children have to undertake extensive travel to maintain a relationship with both parents.

Family Law Act 1975 (Cth) s 61DA

APPLICANT: Ms Green

RESPONDENT: Mr Donnelly

INDEPENDENT CHILDREN’S LAWYER: Clyllyn Sperling

FILE NUMBER: SYC 579 of 2011

DATE DELIVERED: 2 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonnel, SC

SOLICITOR FOR THE APPLICANT: Edwards Family lawyers

COUNSEL FOR THE RESPONDENT: Mr Priestly

SOLICITOR FOR THE RESPONDENT: Coastal Law & Conveyancing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Pending further order:

1. The father have sole parental responsibility for the children T Donnelly born … July 2000 and L Donnelly born … April 2003 (“the children”). The father is to notify the mother if he is to make a long term decision about the children and consider her opinions expressed by email before making that decision. The father is to otherwise keep the mother informed.

2. The children spend time with the mother as follows:

   2.1.Subject to order 2.2, during school terms, on the second weekend and the last weekend of each month in Sydney from 6pm on Friday to 6pm on Sunday or 6pm on Monday if the weekend is a long weekend.

   2.2.In the event that a long weekend which falls within school terms and is not a weekend covered by order 2.1, then during that long weekend in lieu of the next weekend that the children were due to spend with their mother pursuant to order 2.1, from 6pm on the first day of the long weekend to 6pm on the last day of the long weekend; and

   2.3.For two out of three of the school holiday periods at the conclusion of terms 1, 2 and 3 as agreed between the parties and failing agreement holiday periods at the conclusion of terms 2 and 3 and from 9am on the first day of the holidays to 6pm on the last day of the holidays;

   2.4.One half of the Christmas school holidays and unless otherwise agreed, the first half in odd numbered years and the second half in even numbered years; and

   2.5.At such other times which may be agreed by the mother and father from time to time.

3. The father is to pay for the children’s return flights to Sydney pursuant to orders 2.3 and 2.4 as well as the children’s return flights for one weekend every 2 months pursuant to order 2.1 and order 2.2 (failing agreement the last of the weekends in a two month cycle). The mother will pay for the children’s return flights on every other occasion pursuant to order 2.1 and all flights pursuant to orders 2.2 and 2.5.

4. The mother and father are to submit to urinalysis screening as follows:

   4.1.to provide samples for urinalysis for testing on  random basis at such times as nominated by the Independent Children’s Lawyer;

   4.2.random tests pursuant to 5.1 hereof are to be instigated by the Independent Children’s Lawyer communicating with the legal representative for the mother and father in writing (but if either is unrepresented at any time by telephoning the unrepresented parent on their mobile telephone number);

   4.3.at the commencement of each test each parent is to provide the pathology laboratory staff with photographic identification and request that the taking of the urine sample be supervised and their identification and the supervision be noted on their records;

   4.4.that such urine analysis testing be conducted in accordance with Australian/New Zealand Standard 438:2001 procedures for the collection detection and quantification of drugs of abuse in urine;

   4.5.each parent is to provide a copy of all test results to the solicitors for the other parent (or if they are unrepresented then to that other parent directly) as soon as each result becomes available to them; and

   4.6.each parent is to authorise the pathology laboratory to provide a copy of the test results to the Independent Children’s Lawyer if the Independent Children’s Lawyer requests copies at any time.

5. Neither the mother nor father take illicit drugs or consume alcohol to a level that would disable them from legally driving a motor vehicle for 24 hours before and whilst they have the care of the children;

6. That the father shall facilitate the mother’s communication with the children by email and by telephone each Monday, Wednesday and Friday between 6pm and 6.30pm and shall provide the children with privacy for the duration of such communications;

7. That the children shall be at liberty to telephone either parent at any reasonable time that the children may request and the parent with whom they are residing is to make their mobile phones available to them if such a request is made;

8. That each party be and are hereby restrained from speaking insultingly or making any derogatory comments to or of the other parent in the presence and/or hearing of the children;

9. In the event that the children are residing within 250km radius from the Sydney CBD, the care period pursuant to order 2.1 shall be each alternate weekend in Sydney from 6pm on Friday to 6pm on Sunday, or 6pm on Monday if the weekend falls on a long weekend, and the respondent Father shall deliver the children to and the mother shall collect the children from the McDonald’s restaurant closest to the mother’s place of residence at the beginning of this time and the mother will deliver the children to and the father will collect the children from this McDonald’s restaurant at the end of this time and the mother will notify the father of the address of the closest McDonald’s;

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders; and

11. The final hearing of this matter be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Green & Donnelly is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 579 of 2011

Ms Green

Applicant

And

Mr Donnelly

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. An interim decision is sought about where two children, now aged 10 and 8, should live. Their father currently lives on the North Coast and the mother in Sydney.  They are currently living with their father.

2. The mother and father were in a relationship for approximately 11 years. They have been apart since the middle of 2008 and there was a shared care arrangement until the mother moved to Sydney in January 2011.

3. The father commenced proceedings in the Local Court, and the mother commenced proceedings in the Family Court in Sydney the next day. The Local Court ordered on an interim basis that the children live with the father on the North Coast and spend defined time with the mother.

4. There were two proceedings before me on this day. The first was the mother’s appeal from the interim parenting orders of the Local Court that the children live with the father and spend specified time with the mother. The appeal is a hearing de novo. The second is the mother’s interim Application filed on 2 February 2011 and amended 28 March 2011, relating to the time the children spend with each parent. Essentially these two applications cover the same issues and were heard together. The specific orders sought are summarised below.

5. Both parents allege that they have been the subject of family violence at the hands of the other and both say the other abuses drugs. None of those matters can be tested or be the subject of findings within the compass of this hearing. I do need to assess the level of risk from the face of the documents.

6. There is also an application that the final hearing be expedited.

APPLICATIONS

1. The mother seeks the following in her Minute of Interim Orders Sought:

   7.1.That the orders of the Local Court be discharged;

   7.2.That the final hearing be expedited;

   7.3.That the children live with the mother in the Sydney Metropolitan area;

   7.4.That subject to withholding from alcohol and undergoing drug testing 48 hours prior to seeing the children, and withholding from both during his time with the children, the father spend time with the children:

   7.4.1.for half of each Christmas school holiday period;

   7.4.2.for the duration of two out of three of the remaining school holidays;

   7.4.3.for two weekends each month during school term; and

   7.4.4.other agreed times;

   7.5.That the mother pay for the children’s airfares to [the North Coast] once a month and on 2 other occasions each year, and that if the father spends time with the children in [the Central Coast] the parties will share the travel;

   7.6.That the mother facilitate private phone and internet contact between the children and the father and the father be at liberty to phone the children independently;

   7.7.That each party notify the other of any medical emergency of the children, illness or accident as soon as practicable; and

   7.8.That each party restrain themselves from denigrating the other in the children’s presence.

2. In the alternative, if the children are ordered to live with the father in accordance with the orders of the local court, the mother seeks that:

   8.1.The children spend time with the mother:

   8.1.1.for half of each Christmas school holiday period;

   8.1.2.for the duration of two out of three of the remaining school holidays;

   8.1.3.for two weekends each month during school term;

   8.1.4.all long weekends; and

   8.1.5.other agreed times;

   8.2.The mother shall pay for the children’s airfares to and from [the North Coast];

   8.3.If the children live within 250km of Sydney CBD, that they spend time with the mother each alternate weekend and the father will deliver and collect the children;

   8.4.That the father facilitate private phone and internet contact between the children and the mother, and the mother be at liberty to phone the children independently; and

   8.5.That the father pay the mother’s costs of the interim application.

3. The mother’s appeal against the Local Court orders was in similar terms, without the alternative proposal. In addition she also sought:

   9.1.That the mother have sole parental responsibility; and

   9.2.That each party notify the other within 24 hours after change of address, phone number or email.

4. Counsel for the father sought that the orders of the Local Court be upheld and the status quo be maintained. The father seeks the following orders in this court, which are set out  in his Submissions document:

   10.1.That the children live with the father;

   10.2.That the father have sole parental responsibility but keep the mother informed;

   10.3.That the mother spend time with the children:

   10.3.1.for half of each school holiday period;

   10.3.2.one weekend a month [on the North Coast];

   10.4.That the mother communicate privately with the children by email and by telephone three times a week;

   10.5.That the father notify the mother of any serious illness or accident involving the children;

   10.6.That neither party denigrate the other in the presence of the children;

   10.7.That the mother refrain from using drugs or alcohol while spending time with the children and undertake drug tests prior to spending time with the children; and

   10.8.That the mother be responsible for all airfares in relation to spending time with the children.

5. The Independent Children’s Lawyer sought orders that:

   11.1.The Local Court orders be discharged;

   11.2.The children live with the father;

   11.3.The mother spend time with the children:

   11.3.1.for half of each Christmas school holidays;

   11.3.2.for the duration of two out of three of the remaining school holidays;

   11.3.3.a maximum of two weekends a month;

   11.3.4.all long weekends, pursuant to the previous order;

   11.3.5.all other times as agreed

   11.4.That the mother pay all airfares for the children to and from Sydney (except for the second weekend each month), and provide the father with an itinerary 5 days prior to each care period;

   11.5.That the father pay all airfares for the children to and from Sydney for the second weekend each month that the children spend time with the mother;

   11.6.That if the father lives within 250km from Sydney CBD, the children’s time with the mother shall be every alternate weekend, with the father to deliver and pickup the children;

   11.7.That the father facilitate private phone and internet contact between the children and the mother, and the mother be at liberty to phone the children independently; and

   11.8.That both the mother and father undergo periodic urinalysis on a random basis as nominated by the independent children’s lawyer.

DOCUMENTS RELIED UPON

1. The mother relied upon the following documents:

   12.1.Notice of Appeal filed 17 February 2011;

   12.2.Amended Initiating Application filed 28 March 2011;

   12.3.Minute of Interim Orders sought by the Mother on 9 May 2011;

   12.4.Mother’s affidavit filed 15 April 2011;

   12.5.Mother’s affidavit files 3 May 2011;

   12.6.Affidavit of Mr H filed 28 April 2011;

   12.7.Affidavit of Ms K filed 28 April 2011; and

   12.8.Affidavit of R Green filed 28 April 2011.

2. The father relied on the following documents:

   13.1.Case Information document e-filed on 5 May 2011 (?);

   13.2.Submissions on behalf of the Father dated 9 May 2011 (?);

   13.3.Father’s affidavit filed 15 April 2011;

   13.4.Affidavit of Ms S filed 3 February 2011; and

   13.5.Affidavit of Ms Y received 18 February 2011.

3. The Independent Children’s Lawyer relied upon:

   14.1.the Child Responsive Memo of Ms Z, Family Consultant; and

   14.2.Memo of proposed orders of the Independent Children’s Lawyer

4. A number of documents were tendered.

SHORT CHRONOLOGY

1. The father was born in 1974 in Ireland and is nearly 37 years of age.

2. The mother was born in 1975 and is 36 years of age.

3. The parties met in April 1997 and were engaged and living together one month later. They married on 28 February 1998.

4. The child T was born in July 2000 and is 10 years old.

5. The child L was born in April 2003 and is 8 years old.

6. The parties originally lived in Sydney then spent some time in Ireland. The family moved to the North NSW coast in November 2007. The mother obtained employment and the children began school there.

7. The father left the home in April 2008 after a violent incident where the mother hit him with a petrol can. The mother admits this but does not say it caused the harm that was alleged. There was agreement a few weeks later for the children to spend alternate three day blocks with each parent.

8. On 19 June 2008 there was agreement about the children spending week about time with each parent.

9. On 19 June 2008 there was another violent incident where the mother hit the father in the face. She was charged with assault and the offence was found to be proved (without conviction) on 23 February 2009.

10. An ADVO was obtained for the father against the mother on 8 October 2008, and the father said it was breached by the mother on 3 November 2009. Final ADVO orders were made on 3 November 2009. No breaches were alleged after this time.

11. The father’s partner moved in with the father in April 2009 and allegedly began receiving abusive texts from the mother on 23 August 2009. An AVO was applied for on her behalf on 16 December 2009 and made final on 19 November 2010. This AVO still is in effect.

12. In September 2010 the mother’s father allegedly threatened the father and an AVO was obtained to protect the father from the maternal grandfather.

13. On 23 January 2011 the mother unilaterally moved to Sydney with the children and did not return them on 30 January 2011 when they were due to be returned to the father. The father commenced proceedings the next day in the Local Court.

14. On 15 February 2011 the Local Court ordered that:

    29.1.the children be returned to the North Coast;

    29.2.the children live with the father;

    29.3.the children spend time with the mother

    29.3.1.for one half of the Easter school holidays; and

    29.3.2.for one weekend a month on the North Coast;

    29.4.the children communicate with the mother by email and telephone on three occasions each week

    29.5.the father notify the mother as soon as practicable about any serious illness of the children; and

    29.6.that neither parent denigrate the other in the presence of the children.

15. The mother’s application for a stay of those orders pending the result of the Family Court application was refused on 18 February 2011.

16. The mother has not travelled to see the children on any weekends available to her since these orders were made, but took advantage of the school holiday order.

WITH WHOM THE CHILD IS TO LIVE AND SPEND TIME

1. Neither parent asserts that the children would not benefit by having meaningful a relationship with both parents. The children had the benefit of equal time with both parents until such time as the mother moved to Sydney. Her reasons for moving are explained in her affidavit.

2. The benefit of having a relationship with both parents is to be balanced against protecting the children from physical or psychological harm. Both parents allege abuse against the other. Within the confines of this hearing, I am unable to make any definitive findings about these matters but I must assess the risk of harm. The violence and abuse alleged against each parent primarily relates to interactions between the parents themselves. The children have at times witnessed some of these incidents. The mother points to an altercation the father had with his partner’s ex-partner, which the father said was not in the presence of the children, but where the children, waiting in the car, must have seen the evidence of a violence altercation as they saw the father’s injuries. The mother says the father’s actions of confronting the man show a lack of impulse control. Both parents are happy for the children to spend significant time with the other parent unsupervised. I do not believe there is a direct risk of physical harm to the children. Both parties agree there has been family violence to which the children have been exposed. There have been a number of AVOs taken between the parties. The exposure to any further family violence could be detrimental to the children. I intend to limit the parent’s exposure to one another at changeovers.

3. The oldest child has expressed views to the family consultant that she wants to live with her mother, and the affidavits relied upon by the mother detail the views she is alleged to have expressed. The family consultant opines there may have been some pressure placed upon T to express these views. The younger child says he wants the father to live in Sydney so there can be a week about arrangement. Both the family consultant and mother suggest that he likes to appease both parents.

1. The children have a good relationship with each party and this is not challenged. It is suggested the children are not particularly fond of the father’s partner, who I note has moved out of his home to alleviate tensions.  They have a relationship with their cousins in Sydney and the daughter of the father’s partner on the North Coast.

2. The parents seem to have some difficulty in facilitating a relationship between the children and the other parent. The mother moved to Sydney unilaterally. She attempted to change the children’s school unilaterally. Both parents allege that the other denigrates them and their loved ones in front of the children. Both parents seek a non-denigration order and I shall make one. 

3. The children had an established arrangement in Northern NSW until they were unilaterally taken to Sydney by the mother in January 2011 before being returned to Northern NSW. The mother seeks the children be moved to live with her in Sydney in the interim. A final decision would then be made in the Sydney Family Court as to whether the children should live in Sydney or Northern NSW. The mother makes it clear she will not return to Northern NSW.

4. Senior counsel for the mother made submissions about the quality of the current status quo. The arrangements on the North Coast since separation were initially a 3 day swap, followed by a week-about arrangement until the mother left for Sydney. While the father says the children were settled in the North Coast under that three year arrangement, senior counsel for the mother submits that this time was not at all settled, characterised by family violence, AVOs, drugs and alcohol abuse. It is submitted that this led to the mother leaving for Sydney, after she had received poor advice from her previous lawyers. It was after this that a recovery order was sought on 1 February 2011 and an order was made that the children return to Coffs Harbour on 15 February 2011. He said the unsettled environment on the North Coast was not something either party wished to return to.

5. Senior counsel for the mother criticised the lack of evidence by the father about his current living arrangements, including hours of work, daily routine and occupants of his home.

6. Counsel for the father said the mother was aware of all these things given he had existed in that state for the three years they had a shared care arrangement and didn’t think it was an issue. It was further submitted that the three year shared care arrangement was made by agreement. The level of acrimony is not disputed, though he said it flowed from the mother, evidenced from the chain of text messages annexed to Ms S’s affidavit. He noted the mother’s affidavit in the Local Court explained her reasons for leaving the North Coast were not drugs, alcohol and violence, but career and remuneration opportunities in Sydney (the mother said this was an oversight of her lawyer at the time). He also noted that the mother refused to mediate about her move to Sydney, putting her own needs over the children, though the mother’s counsel notes the parties have sought counselling together.

7. The children appear settled in Northern NSW where their school reports show they are doing well and presumably have a current friendship group. I have not, in the ambit of this interim hearing, had the opportunity of assessing the effect of the change the mother proposes. I am mindful of the fact that the children’s residence in either place will involve long period of separation from the other parent. The difficulty arises because the mother does not intend to return to Northern NSW and the father does not seem to intend to relocate to Sydney. That difficulty will exist regardless of what decision I make, and the parents, in their orders sought, have proposed how changeovers would occur. Senior counsel for the mother is critical of the father for not considering a move to Sydney in his affidavit material, when he mentioned a vague idea of moving to the Central Coast to the family consultant.  Counsel for the father noted that the father has a serious long term relationship in Northern NSW. I note that the mother has said she will not go to the North Coast as she fears being in the same community will heighten antagonism and attract more vexatious AVO proceedings. Yet, it is not entirely clear to me on the papers that have been filed for the purposes of these interim proceedings, why the mother believes that the conflict between herself and the father would be any less if the parties both lived in Sydney.

8. Both parents want the best for their children and are dedicated parents. The father says the mother has not come to visit the children on weekends when she is permitted to under orders. The mother said she will not visit Northern NSW for various reasons, and there is an allegation (which I am not able to resolve) that the father has made it difficult to have the children flown down to her.

9. There are allegations of both parents putting the children at risk while they have been under the influence of drugs or alcohol. The father admits to drinking heavily in the past and claims he has been dry for nine years. He also said he stopped smoking marijuana when the marriage ended. The psychologist’s report confirms the father did have a drinking and smoking problem in the past. Whilst acknowledging the great difficulty at an interim stage of making any finding of fact, senior counsel for the mother referred to the fact that I had before me a large body of evidence about the history of violence and the history of substance abuse. In addition to the father’s admissions there is also strong affidavit evidence by Mr H, though counsel for the father cautioned that he was a disgruntled employee and the level of drug use alleged was untenable. Counsel for the father notes there have been three negative drug tests of the father (though the mother distrusts the collection method). He also points to the mother’s letter annexed to the affidavit material that in October 2010 said “my children’s entire life has been with a clean father. They have no life experience with a drug addicted parent and now are confused by his erratic, violent and unpredictable behaviour.” Counsel for the father also contended that the mother mentioned nothing about drugs in her Local Court affidavit, for which the mother blames her former lawyer. The mother admitted in her affidavit that there was a period where she drunk heavily in an attempt to resolve her own psychological issues. There is evidence of both parties drinking and presenting as intoxicated in the past. The risk the children will be exposed to a parent under the influence runs both ways. I will seek to limit this exposure by requiring both parents undergo drug testing, as sought by the Independent Children's Lawyer, and refrain from drinking alcohol or using illicit drugs while they care for the children.

10. The mother says the father has bipolar disorder, or another psychological condition. The exhibited psychologist report shows he does not have bipolar but was treated in the past for anxiety and possibly depression. There is no evidence that this condition he has, has seriously affected his ability to parent the children. The father said the mother was suicidal in the past, and the maternal grandfather had to move up to live with her and help her. The mother denies suicidal tendencies.

11. The disputes the mother says arose between the father and his new partner are not as relevant now given that it is now asserted that the partner has moved out and spends time with the father only when the children are with their mother. Senior counsel for the mother says evidence about this is insufficient. I note the father and his partner have a joint bank account and are still in a serious relationship.

12. One AVO is still in existence, that is the AVO against the mother on behalf of the father’s partner. Given that Ms S has sent her daughter to the same school as the children, this means the mother cannot attend upon the children’s school.

CONCLUSIONS ON PARENTING

1. Neither party seeks an order for equal shared parental responsibility and the Independent Children's Lawyer seeks no order about parental responsibility. I must decide whether, in the interim, the parents are to share parental responsibility. There is a presumption under s 61DA FLA that this occur. However, the presumption is rebutted if, as in this case, there are reasonable grounds to believe a parent has engaged in family violence. In addition, in this case there is an “extremely high level of conflict and lack of communication” to quote the family consultant. I agree with this assessment. Communication between the parents has resulted in verbal and at times physical abuses and ADVOs. These verbal abuses have occurred in the presence of the children and would have impacted upon them. Further uncooperative communication will likely fuel the already high antagonism between the parties and impact negatively on the children. I do not consider there is a level of cooperation between the parties sufficient to discuss the needs of the children. The parent with the primary carer should have interim sole parental responsibility and each parent shall be responsible for day to day decisions when the children are living with them. I will order that the parent with parental responsibility warn the other parent of any impending decision and take their opinion into account before making the decision.

2. As no order will be made for equal shared parental responsibility, I am not obliged to consider an equal time order or substantial and significant time. Either order would not be reasonably practical in any case, considering the distance between the parties and the children’s education commitments.

3. The parents both propose orders that are generous in the amount of time the children spend with the non-resident parent considering the distance, difficulty and cost of changeovers. The orders as to time to be spent with the other party are very similar in their terms.

4. Notwithstanding the expressed views of the children, I feel it is in the children’s best interests to remain in Northern NSW until the final hearing. This will minimise the disruption to the children. The children are currently settled in Northern NSW. I acknowledge that this may not be the final result when all the contested applications of the parties are tested at any final hearing.

5. I have no evidence to indicate that the financial circumstances of the parties are such that they should not share the costs of travel equally. Neither party has provided details of their likely ability to pay. I will make orders for the children to visit the mother in Sydney as proposed by the Independent Children’s Lawyer, which strikes a balance between the mother and father’s proposed orders which are very similar in any case. More than one weekend a month is required for the children to maintain a close and positive relationship with their mother. The mother refuses to travel to the children for reasons emphasised by her senior counsel.

6. I will order that the mother and father share the cost of the children’s flights to Sydney, so that the father pay for the flights for each school holidays and for one weekend’s set of flights every two months. The mother shall pay for the weekend flights in every other alternate month, and for the second contact weekend in the other month if she chooses to take advantage of those occasions. Although this leaves the mother to pay for more flights, I assume holiday flights are usually more expensive. This arrangement ensures the mother will pay to get the children to Sydney for most weekends during school term.

7. There is a real issue about each parent’s usage of alcohol and drugs. I will make orders that alcohol not be consumed when the parties are caring for the children or for 24 hours beforehand. I will make an order in accordance with the Independent Children's Lawyer’s proposed order for the mother and father to be subject to random drug testing at the request of the Independent Children's Lawyer. This testing will be in accordance with Australian/New Zealand Standard 438:2001 as explained in the correspondence in Exhibit 1. The random timing of the testing should mitigate the mother’s fears that the father can prepare a clear sample of urine then swap it into the jar at the testing facility. I do not see the risk is such to invade the father’s privacy any further.

8. There is general agreement that the resident parent will facilitate telephone and email contact throughout the week. I note the parents have allegedly had some difficultly with this. I will make specific orders to ensure contact is made during the prescribed times. There was also an issue about the children’s mobiles being kept from them so they are unable to call the mother when they wish. I will order that the children may call the mother whenever they so choose.

9. There is general agreement about the non-denigration orders and notification about serious illness or accident.

10. If the father moves to the Central Coast, which there are indications he may, the mother will spend time with the children every alternate weekend, and as prescribed above in relation to holidays. The mother and father will be equally responsible for the driving involved.

EXPEDITED HEARING

1. The mother seeks the hearing be expedited. The family consultant recommends expedition. The father agrees. The mother says this need is heightened if I order (as I have done) that the children live with the father, given the risk she says he poses.

2. Both parties raise significant concerns in relation to the capacity of the other parent to properly care for the children.  These matters can only be assessed in a full hearing.

3. The mother, for her own reasons (and may well be found to be very valid ones), refuses to travel to Northern NSW so that the children’s time with her is quite limited. If at a final hearing it is found that it is in the children’s best interests are for them to live with their mother then the children will have to put up with an unsatisfactory situation based on the orders that I have made on an interim basis (which orders I think are in the children’s best interests within the limited confines of the hearing that I have been able to undertake).

4. Whilst there is no substantial sexual or physical abuse alleged, nor threats to the children’s attachment, nor parental alienation, I find that it is appropriate to expedite the hearing of this matter and I will make an order to do so. Under the interim orders I have made, the children will be travelling extensively. This may not end up being the best arrangement for them. The tyranny of distance in this case is a factor that points in favour of expedition so that the risk that the children are currently not in the best place is explored and dealt with as soon as is practicable.

5. In the event that I was not going to expedite the matter, there was discussion about whether or not I transfer the matter to the Federal Magistrates Court who sits in Coffs Harbour, or the Family Court in Brisbane where hearings may come on faster and the children do not have to travel as far for expert assessment. I have expedited the matter. Assessment of the children by a single expert in Sydney should not be a difficulty given the frequency with which the children are coming to Sydney.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 June 2011.

Associate: 

Date:  2 June 2011