Jackman and Carper

[2010] FamCA 879

FAMILY COURT OF AUSTRALIA

JACKMAN & CARPER [2010] FamCA 879

FAMILY LAW – CHILDREN – With whom a child spends time – Dispute over school holiday time

APPLICANT: Ms Jackman

RESPONDENT: Mr Carper

FILE NUMBER: SYC 7145 of 2009

DATE DELIVERED: 28 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 28 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Newport Law

COUNSEL FOR THE RESPONDENT: Ms Stolier

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders

1. That orders are made in accordance with paragraphs A, B and C of the document titled “Minute of Orders” dated 28 September 2010 annexed hereto and marked with the letter “A”.

2. That the matter is otherwise adjourned to the Judicial Duty List at 10.00 am on 15 November 2010.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7145  of 2009

MS JACKMAN

Applicant

And

MR CARPER

Respondent

REASONS FOR JUDGMENT

1. I am asked to determine the issue of with which parent the children spend the school holidays, which have already commenced.

2. Tendered into evidence is a letter of 10 August 2010 from the mother’s solicitors asking that the children spend the second week of the holiday period with their mother.  There was a response to this letter from the solicitors for the father on 17 August 2010 which is Exhibit “F1” advising that the father was unable to agree to that proposal because of work commitments in the first half of the holidays.

3. The parties agree that on 7 September 2010 there was a telephone conversation between them about the holidays.  There is some dispute about what was said but there is a reference, as I understand it, to the father in that conversation saying that he wanted to take the children away in the second half of the holidays.

4. The mother says that on 8 September 2010 she sent a text to the father saying “please do not book Queensland or other holiday on my weekend” and some other matters.  The weekend in question is the weekend in the middle of the school holidays. 

5. I accept that the mother did or believed she did send that text.  The father says that he didn’t receive the text and I accept that as I have no basis for not accepting what either parent says.  However, I do consider that the parents exchanged information in the knowledge that the children would be staying with their father in the second half of the school holidays, that the father intended to take the children away in the second half.

6. The father apparently booked and paid for a holiday for himself and the children from 2 October to 10 October 2010 so therefore commencing on a Saturday and concluding on a Sunday.  There was then a letter from the mother which is Exhibit “M2” of 21 September 2010 and in the second last paragraph on page 2 her solicitor says:

   “We understand that your client has arranged to take the children on holiday during the up coming school holidays from the weekend of 2 and 3 October which is during our client’s access time.  As your client refuses to communicate with our client in relation to this please confirm that this is either a misunderstanding or that your client will change arrangements he has made so that he has the children for the second week from Monday 4 October 2010.”

7. It is not entirely clear to me how the mother came to know the father had booked a holiday from the weekend of 2 and 3 October but it is apparent that at least by 21 September 2010 she knew that booking had been made.

8. The children are apparently unfortunately aware that each of their parents has made plans for them which cannot both take place, however, it seems reasonable in the circumstances for the father to have assumed that the children would be with him in the second half of the holidays and there is no basis for the mother to have assumed that the second weekend of the holidays must be part of her first half.  There is clearly value to the children in spending active holiday time with the father and it seems likely that they will be disappointed if a weekend on the Gold Coast, as promised to them, does not happen so on that basis I will make the orders sought dated 28 September 2010.

9. For the purpose of the implementation of the orders made on 28 July 2010 as to the period of time the children shall live with the father for the September/ October 2010 school holiday period the father shall collect the children from the mother at the mother’s home on 2 October 2010 at 8.00 am and shall deliver the children to the mother at the same place on 10 October 2010 at 2.00 pm.

10. I note that it is regrettable that the parents were unable to communicate to the extent that the children were promised two different kinds of holidays and that this matter has had to be determined in this way in court which would no doubt lead to disappointment and possibly resentment.  It would be of assistance to the parents in future if they are unable to communicate by telephone or email to cause a communication book to move between the children so that there can be a proper exchange of information and plans can be made and confirmed so that such a matter doesn’t arise again.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 September 2010.

Associate:     

Date:              28 September 2010