TAYLOR & JESSUP

[2010] FamCA 907

FAMILY COURT OF AUSTRALIA

TAYLOR & JESSUP [2010] FamCA 907

FAMILY LAW – CHILDREN – Parenting – Relocation

Family Law Act 1975 (Cth)

APPLICANT: Mr Taylor

RESPONDENT: Ms Jessup

FILE NUMBER: SYC 5754 of 2010

DATE DELIVERED: 12 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Ainslie-Wallace

HEARING DATE: 11^th October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

Pending further order

1. The children live with the father

2. That no later than 4pm Saturday October 16^th 2010 the mother do all things necessary to deliver the children to the father at his residence at C.

3. In the event that the mother is living in C or within a reasonable distance of C, the children will spend time with her as follows:

   (i)During NSW School Term time, each alternate weekend from after school Friday until the commencement of school Monday morning and each Wednesday from after school until the commencement of school the following Thursday morning;

   (ii)Half of each school holiday period alternating between the first and second half with the children to spend time with the mother for the first half of each NSW School holiday period in odd numbered years and the children to spend time with the mother for the second half of each NSW school holiday period in even years.

   (iii)Alternating between 5:00 pm 24 December and 2:00 pm 25 December and 2:00 pm 25 December until 5:00 pm 26 December each year with the children to spend time with the mother from 5:00 pm 24 December 2010.

   (iv)As otherwise agreed between the parties.

4. In the event that the mother is not living in C the children to spend time with the mother as follows:

   (i)For half of each NSW school holiday period with the children to spend time with the mother for the first half of each NSW school holiday period in even numbered years and for the second half in odd numbered years;

   (ii)In the event that the mother gives the father two weeks written notice that she will be in the C area, the children will spend time with the mother as agreed between the parties;

   (iii)That the mother is to communicate with the children by telephoning the children at a reasonable hour each alternate day at the landline of the father’s property at C;

   (iv)At other times as agreed between the parties in writing.

5. For the purposes of either Order 3 or 4 hereof, the children will be handed into the care of the mother at the commencement of the time to be spent together by the paternal grandparents and the mother will return the children to the grandparents at the conclusion of the time spent between the mother and the children.

6. Neither party will remove the children from the C local area without the written consent of the other party.

7. Both parties will provide the other with written details of his or her residential address, mobile phone number and land line phone number and email address and will notify the other party if any of that information changes.

8. An Independent Children's Lawyer be appointed to represent the children.

9. Each party is restrained from taking or causing the children to be taken to a counsellor or psychologist without the written permission of the other party and the Independent Children's Lawyer.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5754 of 2010

MR TAYLOR

Applicant

And

MS JESSUP

Respondent

REASONS FOR JUDGMENT

Background

1. Mr Taylor (the father) and Ms Jessup (the mother) are the parents of J (born in December 2000) and H (born in July 2003).

2. The parties commenced a relationship and started to live together in 1990, first on the NSW Central Coast and then they moved to live in C in 1993.  They separated in September 2009.  Throughout the majority of their relationship the parties lived in C where the father works.  The mother did not work outside the home after the children were born.  The father’s parents live in C and have been significantly involved in the children’s lives.

3. It is undisputed that after separation, the mother moved out of the family home and rented accommodation in C.  She and the father reached an agreement that they would share the care of the children and for a time after separation, the children spent week about with each parent.   This agreement continued until the end of 2009.  There is a dispute between the parties about the date on which this arrangement commenced.

4. In late December 2009 the mother travelled to a music festival leaving the children in the care of the father.  There is a dispute about how long the mother was away, but there is no dispute that she did in fact travel to the festival.  On her return to C, the parties resumed the week about care arrangements for the children.

5. The mother said that in April 2010 her car broke down and she could not afford to have it repaired and said that in those 5 or 6 weeks the children spent more time with the father that they had before because she was not able to drive them to school.

6. In June 2010, the mother rented accommodation in a place some 15km out of town and the father says that from that time, the children began to spend more time with him.

7. In late July the mother took both children to Queensland for a holiday and returned to C on 27^th July.

8. On 30^th July, without informing the father, the mother took the children from C to the Gold Coast.  On 2^nd August, the father rang the children’s school to be told that they were not there.  The school Principal told him that the mother had taken them to Queensland.

9. Both children were attending school in C before the mother took them to Queensland.  H was having intervention at school to help her manage her school work.  This was arranged by the father.

10. Both children have had significant involvement with their paternal grandparents and it is undisputed that the children have a warm relationship with their grandparents. 

11. The mother says that H does not particularly like to be separated from her for any length of time.

12. It seems that the mother has a friend who lives on the Gold Coast but it does not appear that she has family or other close support there. 

13. From the affidavits filed by the parties, there are clearly disputes between them about the circumstances of the formation of the shared care agreement, the mother alleges that she agreed to it because she was “bullied” by the father and his parents.   Both parties refer to a violent incident that took place on the 20^th July in front of the children and which resulted in the mother obtaining an Interim, ex parte Domestic Violence order.   She alleges conflict between them for some time in the relationship.  It seems that there was conflict and an unfortunate incidence of violence between the parents in front of the children.

14. In an interim hearing, where there is no cross examination on the allegations made by the parties, the Court cannot resolve such disputes.  However, there is a measure of agreement about certain matters relating to the children’s care after separation.

15. During the interim hearing, the mother was unrepresented and appeared by telephone at her request.  She had consulted a lawyer who drew her affidavit and response to the father’s application.

Competing Proposals

1. The mother alleges in her affidavit that the father has been and still is a drug user and that he was violent and controlling of her during the relationship.  She said that she is afraid of him and does not wish to return to live in C.  She said that she is renting a flat on the Gold Coast but cannot afford to rent accommodation in C.  In her submissions, the mother said that she is happier living on the Gold Coast and believes that the children are happy.  She said that she did not believe the shared care arrangement was working well for the children.

2. In the event that she is not required to bring the children back to C, the mother proposes that the father will spend time from 5pm 24^th December 2010 until Christmas day at 2pm and then spend time with the children for half of each school holidays starting in 2011. 

3. The mother proposes a different regime of time between the father and the children if she is living in C.  In that event, the children will spend time with the father each alternate weekend and one half of the school holidays and other time on their birthdays etc.

4. It is a condition of the father spending time with the children that he undergo random urinalyses at least six times in the twelve month period after the orders and if there is a positive result to any analysis then he shall have no time with the children.

5. The mother said that C does not provide the medical services necessary for the children.  She was seeking some educational support for H, being apparently unaware that the father had already put that in place in H’s school in C and said that J has regular appointments with a chiropractor who is dealing with the child’s headaches.  She said that these services are not available in C.

6. The father proposes that the mother immediately bring the children back to C and they live with him.  In the event that the mother remains living in C, he proposes that she spend time with the children each alternate weekend and overnight in the other week and half of the school holidays.  If the mother is living in Queensland, the father proposes that she spend time with the children in the school holidays and in C should she travel there to see them.  He said that the children have lived in C for the majority of their lives in the house in which he was living with them before they were taken to Queensland.  They were both attending school and were settled and happy there.

Discussion

1. In determining an interim issue concerning the welfare of children, the paramount consideration is the best interests of the children.

2. There seems no dispute that before the mother took the children to Queensland they were spending significant time with the father and his parents.  Although the mother alleged conflict and aggression from the father to her, she did not allege that the children did not have a close attachment to their father.   Neither party has suggested that the children do not have a warm attachment to both of them and their proposals reflect their common intention that the children should spend time with each of them.  Neither party seeks an order that is inconsistent with the concept of equal shared parenting.

3. The mother alleges that the children are at risk while in the care of their father through his drug taking.  She alleges that the father smokes marijuana daily and has done since the beginning of their relationship.   She said that he smokes it in front of the children and is not a competent parent while he is stoned.  Whether the father does use marijuana and to the level asserted can not be determined at this hearing nor whether if he does use marijuana he does so in circumstances that put the children at risk.  Counsel for the father argued that history would demonstrate that the mother was not concerned about the father’s capacity to care for the children because of the regime of care that took place after separation leading to the children spending significant time in the father’s sole care.   There is force in this argument.

4. The evidence before me does not persuade me that there is an unacceptable risk to the children in their father’s care.

5. It seems clear that there are issues of conflict between the parents although it is not possible to determine the competing allegations as to who is at fault.  What is apparent is that any order made on an interim basis should strive to minimise the contact between them while the children are present.

6. The mother has alleged in her affidavit that the children are happy with her in Queensland and do not wish to return.  In all of the circumstances of this case as it appears from the evidence before me, the cessation of conflict between the parties may well be the reason why the children are happy rather than living away from their settled environment and their grandparents.  I do not regard their views as expressed by the mother as being persuasive of their long term desires.

7. The effect of the children being taken to Queensland has severed the close association with their father and his parents, they have been removed from their school and, one imagines lost contact with their school friends and local activities.  While the mother asserted that J required regular attendances on a chiropractor, it seems that J has started these appointments only since being moved to the Gold Coast.  The mother’s proposals for time spent with the children do not contemplate the children seeing their father until Christmas eve 2010.

8. On the whole of the evidence before me, I am of the view that, pending further order, it is in the best interests of these children to be returned to live in C where they were settled in their lives.

9. The mother said that she could not afford to rent accommodation in C, although she is presently renting accommodation in the Gold Coast.  For that reason, I have not made an order that she move her residence to C if she can not afford it.  However, it is in the interests of these children that they are immediately returned to live with their father where they were settled before being removed by the mother.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 12 October 2010.

Associate: 

Date:  12 October 2010