Amiti & Vata
[2025] FedCFamC2F 476
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Amiti & Vata [2025] FedCFamC2F 476
File number(s): SYC 9093 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 11 April 2025 Catchwords: FAMILY LAW – Application for review – interim parenting orders – time the children spend with the father – where the father seeks that he children spend seven nights a fortnight with him – where the mother seeks that the children spend two nights a fortnight with the father - where the parties reside an hour apart – interim order made that the children spend four nights a fortnight with the father Legislation: Family Law Act 1975 (Cth) pt VII, ss 60CA, 60CC
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) pt 14.3, r 14.07
Cases cited: Beaton & Beaton [2020] FamCAFC 297
Deiter & Deiter [2011] FamCAFC 82
Denton & Denton (No 3) [2024] FedCFamC1F 476
Goode & Goode [2006] FamCA 1346
Hansen v Kane [2022] FedCFamC2F 949
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Munroe & Purdue [2018] FamCA 25
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 3 April 2025 Place: Hobart Counsel for the Applicant: Ms Reid Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondent: Ms Younes, Lewarne & Goldsmith ORDERS
SYC 9093 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AMITI
Applicant
AND: MS VATA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.Order 4 of the Orders made on 6 March 2025 by Senior Judicial Registrar Osmand is discharged.
2.Until further order, the children X born in 2015 and Y born in 2019 live with the Respondent Mother MS VATA and spend time with the Applicant Father MR AMITI in a fortnightly rotation as follows:
(a)In week 1 from the conclusion of school on Wednesday (or 3:00pm if Wednesday is not a school day), until the commencement of school Thursday (or 9:00 am if Thursday is not a school day); and
(b)In week 2:
(i)From the conclusion of school on Wednesday (or 3:00pm if Wednesday is not a school day), until the commencement of school Thursday (or 9:00am if Thursday is not a school day); and
(ii)From the conclusion of school on Friday (or 3:00pm if
WednesdayFriday is not a school day), until 12:00pm on Sunday.
3.Until further order, changeovers occur at school, or at McDonald’s in Suburb C if a non-school day.
4.The question of costs on the Application for Review filed 27 March 2025 is reserved.
THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
B.Order 2(b)(ii) has been amended pursuant to rule 10.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 11 April 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
These are parenting proceedings concerning two children, X now aged nine and Y now aged five (collectively “the children”). The parents Mr Amiti (“the father”) and Ms Vata (“the mother”) were in a relationship for about six years and separated in 2020.
The proceedings came before me to determine an Application for Review filed by the mother on 27 March 2025 (“the review application”). I conducted a hearing of the review application on 3 April 2025, at which time the father was represented by counsel and the mother by her solicitor.
The undisputed evidence before the Court establishes that, after separation, the parties had an informal agreement about the parenting arrangements for the children. This involved the children spending time with the father each week on Wednesday afternoon and from Friday afternoon until Saturday afternoon. This arrangement continued without difficulty until November 2024.
The father filed an Application in a Proceeding on 3 December 2024 seeking interim orders and sought an urgent hearing. An urgent hearing was declined and an interim parenting hearing proceeded on 6 March 2025. At this time the father was legally represented, while the mother was not. A Senior Judicial Registrar (“the SJR”) made interim orders on 6 March 2025 (“the interim orders”).
By the review application, the mother seeks a review of Order 4 only of the interim orders. Order 4 provides:
4.The children live with the Mother and spend time with the Father as follows in a fortnightly cycle:-
4.1 In week 1:
4.1.1On Wednesday from the conclusion of school (or 3:00pm if it is not a school day) until the commencement of school on Thursday (or 9:00am if it is not a school day); and
4.1.2On Friday, commencing from 7 March 2025, from the conclusion of school (or 3:00pm if it is not a school day) until the commencement of school on Monday (or 9:00am if it is not a school day).
4.2In week 2, on Wednesday from the conclusion of school (or 3:00pm if it is not a school day) until the commencement of school on Friday (or 9:00am if it is not a school day).
The mother seeks discharge of Order 4 and instead interim orders for the children to spend time with the father as follows:
1.[The children] live with the mother and spend time with father as follows in a fortnightly cycle:
Week One
1.1On Wednesday from the conclusion of school (or 3pm if it is not a school day) until 7.30pm Wednesday;
Week Two
1.2On Wednesday from the conclusion of school (or 3pm if it is not a school day) until 7.30pm;
1.3From the conclusion of school on Friday or 3pm in the event of a non-school day until 7.30pm on Sunday and each alternate weekend thereafter.
Comparison of the orders that were made and the orders now sought on the review application demonstrate that the mother seeks a reduction in the children’s time with the father on an interim basis from six nights per fortnight to two nights and two afternoons a fortnight.
The father seeks an order that the review application be dismissed.
THE PARTIES’ CASES ON REVIEW
There was preliminary argument about whether the Court should grant leave to the parties to rely on affidavits filed on 2 April 2025. Ultimately, having heard submissions, I granted leave for each party to rely on limited paragraphs of their 2 April 2025 affidavits.
The following evidence was read in the mother’s case:
(a)Affidavit of the mother filed 17 February 2025, tendered into evidence as Exhibit R1;
(b)Affidavit of the mother filed 2 April 2025, tendered into evidence as Exhibit R2, limited to:
(i)Paragraphs [27]-[33], [47], [52]-[54], [57]-[62], [68]-[70], and [74]-[78]; and
(ii)Annexures B, I, J, and K;
(c)Letter from Lewarne & Goldsmith to Lander & Rogers dated 24 March 2025 requesting financial disclosure, tendered into evidence as Exhibit R3;
(d)A photograph of medication prescribed to the mother by Dr B on 3 March 2025, tendered into evidence as Exhibit R4; and
(e)An email addressed to the mother from a real estate agent attaching a rental approval letter dated 24 March 2025, tendered into evidence as Exhibit R5.
In the father’s case, the following evidence was received:
(a)Affidavit of Father filed 13 February 2025, tendered into evidence as Exhibit A1;
(b)Affidavit of the father’s partner Ms D filed 13 February 2025, tendered into evidence as Exhibit A2;
(c)Affidavit of Father filed 2 April 2025, tendered into evidence as Exhibit A3, limited to:
(i)Paragraphs [9], [14], [17]-[20], and [23]; and
(ii)Annexure MRA2;
(d)Affidavit of Father filed 2 April 2025, tendered into evidence as Exhibit A4, limited to paragraphs [10]-[13];
(e)Emails from the mother to the father dated 20 September 2023, tendered into evidence as Exhibit A5;
(f)Emails between the parties in November 2024 relating to the children’s schooling, tendered into evidence as Exhibit A6;
(g)Emails from the father to the mother dated 19 December 2024, tendered into evidence as Exhibit A7;
(h)Emails between the Father and Mother between 5 February 2025 and 28 February 2025, tendered into evidence as Exhibit A8;
(i)E Clinic Hair Analysis Drug Test Results of the father collected 30 January 2025, tendered into evidence as Exhibit A9;
(j)E Clinic Hair Analysis Drug Test Results of the mother collected 29 January 2025, tendered into evidence as Exhibit A10; and
(k)Notice of Risk filed by the mother filed 17 February 2025, tendered into evidence as Exhibit A11.
LEGAL PRINCIPLES
Reviews
Part 14.3 of Chapter 14 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”) provides for Applications for Review from the decision of a Judicial Registrar or Senior Judicial Registrar. The procedure for the review is governed by Rule 14.07 of the Rules and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim dispute de novo and conduct an original hearing.[1]
[1] Hansen v Kane [2022] FedCFamC2F 949 at [43].
Interim parenting principles
As the order subject to the review application is a parenting order, the Court is required to apply the provisions of Part VII the Family Law Act 1975 (Cth) (“the Act”) and determine what order should be made for the children to spend time with the father, based on the paramountcy principle of what is in their best interests.[2] The authorities of Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 remain relevant in determining this issue, despite the simplified statutory provisions that apply since the amendments to the Act which commenced 6 May 2024.
[2] Sections 60CA and 60CC of the Act.
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute, on unchallenged evidence, and on its impressions formed by the nature and detail of the evidence relied upon by each party.[3]
[3] Marvel & Marvel [2010] FamCAFC 101.
The relevant statutory considerations may be inter-related and are assessed on a discretionary basis according to uncontentious or agreed facts, cognisant that, where the parties’ evidence is in conflict, it has not yet been tested.[4]
[4] Goode & Goode [2006] FamCA 1346 at [68]; Deiter & Deiter [2011] FamCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
However, sometimes there is little alternative other than to weigh probabilities of competing claims on untested evidence and the likely impact on the children should the adverse allegations materialise.[5]
[5] Beaton & Beaton [2020] FamCAFC 297.
The Court needs to assess the parties’ respective proposals to identify what is in the children’s best interests, including having regard to relevant risks of harm to the wellbeing of the children, noting limits of the evidence before the Court.[6] In assessing asserted risk to the children, elimination of risk is not necessary provided there is optimal protection of the children.[7]
[6] Deiter & Deiter [2011] FamCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
[7] Denton & Denton (No 3) [2024] FedCFamC1F 476 at [30].
Neither party in this case asserted unacceptable risk, and the father conceded that the other orders in the interim orders, which are not subject to this review, afford necessary protection to the children from the risks alleged by the father concerning the mother’s conduct, family violence and illicit substance use.
EVIDENCE BEFORE THE COURT
There is considerable uncontested or agreed evidence. Based on such evidence, I find on the balance of probabilities that:
(a)The parties were in a relationship between 2014 and 2020;
(b)The mother has been the primary carer of the children since separation in 2020;
(c)The mother and the children have lived in the former matrimonial home since separation in 2020;
(d)The parties executed a financial agreement on 20 December 2022,[8] which amongst other things provided that:
[8] Affidavit of the mother filed 17 February 2025 at Annexure 1.
(i)The former matrimonial home would be transferred to the mother, but the timing of the transfer is perhaps ambiguous;[9]
[9] Clause 28 of the agreement refers to Clause 27, but may have been intended to be a reference to Clause 26.
(ii)The father would pay all mortgage repayments and outgoings on the former matrimonial home for a period of up to 10 years;
(iii)The mother would have an exclusive right to live at the former matrimonial home;
(iv)The parties could not further encumber the former matrimonial home beyond the mortgage that existed in respect of it in 2020;
(v)The father could pay out the mortgage earlier than 10 years; and
(vi)The mother could sell the former matrimonial home earlier than 10 years, with the equity in the property being payable in full to the mother should this occur.
(e)The mother and the children travelled overseas with the father and his partner in late 2024, during which trip the mother learned that the father and his partner had become engaged. There was some conflict during this trip;
(f)The father encountered financial difficulty in or about October 2024 and then raised that the former matrimonial home would have to be sold. At this time the mother had persons, including debt collectors, attend the home looking for the father, which led to a breakdown in communication between the parties and dispute about the father’s compliance with the previous financial agreement (“the financial disagreement”);
(g)The parties had an effective co-parenting relationship until the disagreement about the financial disagreement;
(h)The children regularly had been spending time with the father each Wednesday afternoon/evening and each weekend from Friday after school until early afternoon Saturday;
(i)The children are bonded with and have a good relationship with both parents;
(j)The children’s school and extra-curricular activities are mostly in the Suburb F area;
(k)The father now lives at G Street, Suburb H in New South Wales, which is approximately one hour’s drive from Suburb F;
(l)The mother is no longer concerned about her housing security because she has secured rental accommodation and will move out of the former matrimonial home;
(m)Neither party presents an unacceptable risk of harm to the children as carers, in the view of the other interim orders made by the Court; and
(n)Co-parenting improved in February 2025, when the mother facilitated the children spending time with the father. She also made an offer of communication between the children and the father by telephone or video call,[10] however there is no evidence that the father accepted this offer.
[10] Email from the mother to the father’s solicitor dated 31 January 2025, attached to the affidavit of the father filed 17 February 2025 at Annexure MRA1.
The evidence of the parties was in dispute about the following relevant facts that inform the best interests of the children:
(a)Whether the mother has engaged in a pattern of verbal abuse capable of constituting family violence against the father since about May 2024;
(b)Whether the mother has returned to using illicit substances;
(c)Whether the mother was responsible for the breakdown of the effective co-parenting arrangement; and
(d)The extent to which the mother had acted to damage the children’s relationship with the father.
CONTENTIONS OF THE PARTIES
The mother’s case
The focus of the mother’s submissions was that the interim orders involved a significant change for the children and that there was an absence of independent or expert evidence at the interim hearing before the SJR about how the children would cope with such changes, noting the distance between the parties’ residences and between the father’s residence and the children’s school.
The mother contended that the circumstances which led to the breakdown of the co-parenting arrangement were highly relevant to her conduct in limiting, but not ceasing, the children’s time and communication with the father. Specifically, that the father’s admitted financial difficulties jeopardised the housing security for of the mother and the children, and that the mother has reason to believe he is not or was not complying with the financial agreement.
It was submitted that the mother accepted she had reacted poorly to the financial disagreement, but that the co-parenting dynamic had improved in February 2025.
Further, the mother’s solicitor submitted that the hair follicle testing completed by the mother in March 2025[11] demonstrated that there was no basis for the allegation that she had returned to use of illicit substances, and the positive result for opioids was explained by prescribed medications during periods of ill health for which there was medical evidence.[12]
[11] Affidavit of the mother filed 2 April 2025 at Annexure J.
[12] Exhibit R4.
The mother’s solicitor sought to rebut the criticism in the father’s case outline about the mother’s attitude to X’s weight, stating that the father’s approach could be harming X emotionally and was not child-focussed. This submission was made on a factual basis that the father had involved X in discussions about her weight and visits to a dietician.
Overall, the submission in the mother’s case was that, given the children’s ages, their level of development, attachment to the mother and the breakdown in co-parenting, an order for near equal time such as made in the interim orders was not in the children’s best interests. Further, that a more therapeutic order was required and should be made. In essence, that the interim orders were a step too far, too soon.
The father’s case
Counsel for the father highlighted the undisputed facts and submitted that the mother had weaponised the children in retaliation to the financial disagreement by withholding them from the father, threatening that she would move with them to New Zealand, and repetitively abusing the father or his partner and family.
Accordingly, Counsel submitted that the increase in the children’s time with the father was required to balance the risk of harm to which the mother exposed the children. It was submitted that the breakdown in the co-parenting relationship was one which the mother herself had caused because she had responded to the financial disagreement in a non-child focussed manner. In particular, she had exposed the children to the parental conflict, threatened to remove the children from the jurisdiction, limited their time with the father, and unilaterally removed them from their school.
Counsel for the father agreed that there was a de-escalation in conflict by February 2025, but making the orders sought by the mother would involve another change when the children have already had many in a short time. Furthermore, the existing interim orders are preferable because they involve changeover at school and, if the orders sought by the mother were made, the children would not see the father for an entire week in circumstances where nothing in the affidavit material raises a basis for limiting the father’s time.
The father refuted the assertions that his actions in relation to X’s weight are potentially emotionally harmful, submitting that the factual basis of the submissions by the mother’s solicitor was incorrect because he had not involved X in visits with the dietician. He has attended those without her, as the emails before the Court demonstrate.
Counsel for the father maintained that there was an unacceptable risk to the children in the mother’s care in November 2024, but the injunctive orders now in place mitigate the risk to an acceptable level if the balance of the interim orders remain undisturbed.
Regarding submissions about the distance of the commute for the children to school from the father’s residence, Counsel for the father submitted that the parties has addressed this by agreeing to meet half-way.[13] Further, the distance between the parents’ residences is approximately an hour, which is not burdensome by Sydney standards.
[13] Exhibit A8.
In response to my enquiry to direct me to evidence of what the father had done to alleviate the mother’s concerns about foreclosure and loss of housing, Counsel submitted that the limit of that evidence was:
·At [23] of the father’s affidavit filed 2 April 2025,[14] referring to a recent agreement to sell the former matrimonial home;
·In Exhibit A7, being an email dated 19 December 2024, in which he represented that he has been paying the private school fees; and
·At [19] of the father’s affidavit filed 13 February 2025,[15] in which he states that he has paid the mortgage since separation.
[14] Exhibit A3.
[15] Exhibit A1.
In reply, the mother’s solicitor drew the Court’s attention to Annexure B of her affidavit filed 2 April 2025,[16] which is a record of dealings on the former matrimonial home showing that it is now subject to a second mortgage and caveats of which the father did not make the mother aware and were detected upon her solicitors conducting title searches. Notably, Counsel for the father did not dispute the submission by the mother’s solicitor that there had been no meaningful response to their enquiries made in Exhibit R3.
[16] Exhibit R2.
EVALUATION OF BEST INTERESTS IN THE INTERIM
It is uncontroversial that there was some conflict between the parties during the overseas trip in late 2024, but that did not impact on the children’s time with the father in any material way until later. By October 2024 the mother had concerns about whether the father was complying with obligations under the financial agreement and about the impact of that on housing security for her and the children. There is no suggestion at all that her concerns were anything other than genuine and I consider them entirely reasonable given her unchallenged statements at [22] of these reasons and because is it probable that the father has failed to give any meaningful explanation in response to the enquiries in Exhibit R3, even now.
In my view, in the context of the existence of the financial agreement between the parties in 2020, the mother had the right to reside in the former matrimonial home for up to 10 years or until an earlier time if it was sold pursuant to the terms of the agreement, at which point she would receive a payment from the proceeds of its sale. She had good cause to feel vulnerable and threatened about insecurity of housing for herself and the children as the father had not given her any explanation of his admitted financial difficulties.
I find that the father did nothing to alleviate the mother’s genuine concerns, other than to reach agreement to sell the former matrimonial home at some unspecified time, but which I infer was after October 2024. As the father conceded financial difficulties, the mother had no choice but to agree to the sale as it can be inferred that the alternative was forced sale or foreclosure. This tends to be verified by the subsequent discovery of caveats and a second mortgage on the property, which gives the strong impression that the father has contravened the financial agreement.
For the reasons at [36] and [37] of these reasons, I do not accept that the mother weaponised the children’s time with the father. Instead, I consider that in her desperation she made reckless and poorly considered statements and acted unwisely to the threat created by the father’s actions. She was not child-focussed, but I reject the submission that the breakdown of the previously good co-parenting arrangement was of her making alone.
Objectively and factually, the breakdown of co-parenting was of both parties’ making. It was of the father’s making because he had done nothing to alleviate the mother’s concerns about foreclosure and the evidence to which his Counsel referred me plainly related to historical circumstances. That is so because, on the evidence:
(a)The father does not dispute that he was experiencing financial difficulty;
(b)The title records[17] show he has further encumbered the property; and
(c)The property is apparently to be sold.
[17] Affidavit of the mother filed 2 April 2025 at annexure B.
Furthermore, the father’s statement at [23] of his affidavit filed 2 April 2025 is, in my view, evasive and demonstrates a lack of insight about his actions and how they impacted the pre-existing positive co-parenting dynamic. In addition, the impression gained from the father’s evidence is that he exaggerated facts and portrayed himself more positively than objective facts suggest. For example, he states that there were several months when the children did not have regular time with him,[18] when in fact he spent time with them overseas, then chose to travel alone with his partner. The period when the children did not spend time with him due to the mother’s conduct was only between November and February, a few months. Further, that he personally does drop off and pick up of the children, but email communication suggests otherwise.[19] Further, as he lives with his parents and partner, it is reasonable to infer that those people are involved in caring for the children when they are in his care.
[18] At [9] of his affidavit filed 2 April 2025.
[19] Email from the mother to the father dated 6 February 2025, attached to the affidavit of the father filed 17 February 2025 at Annexure MRA3.
An increase of the children’s time with the father pursuant to the interim orders is significant. It is considerably different to that with which I infer the father was historically content. The additional time was ordered in the absence of any expert evidence in circumstances where a good co-parenting arrangement had broken down and then improved to a degree before the interim orders were made.
I do not have a transcript of the hearing before the SJR nor written reasons, so it is impossible to know if any weight was attributed to the financial disagreement.
Regardless, the hearing before me is de novo, and because the mother’s reactions were triggered by the financial dispute which then led to a breakdown in co-parenting, to which I have found the father also contributed, the increase in the children’s time with the father is not in their best interests as:
(a)The youngest child is relatively young;
(b)The father has re-partnered, and there is no independent evidence about his new partner or the quality of the children’s relationship with her;
(c)They can be inferred to considerably reduce the children’s time with the maternal grandmother, with whom they have lived; and
(d)The father lives probably close to an hour from the children’s school and where the children have resided with the mother in the former matrimonial home and where they are to reside in rental accommodation.
A far more cautious and conservative interim order regarding the children’s time with the father is required.[20] This is particularly so because the mother and the maternal grandmother have been the children’s primary carers, and the interim orders significantly reduce time the children spend with both of them.
[20] Munroe & Purdue [2018] FamCA 25 at [16].
I accept that a variation of the interim order will involve another change for the children. However, it is a change that I infer is unlikely to have any adverse impact on the children because it involves returning closer to the status quo that existed previously. Further, the children are unlikely to have become settled with the new arrangement, which has been in place barely a month.
I accept that the mother has not behaved well, but the harm to which she exposed the children could not in any way be regarded as unacceptable. There is no evidence that the threats of moving the children to New Zealand were made in the presence of the children. Instead, the impression gained from the evidence before the Court is that the mother’s abuse and threats were all directly to the father by email or by text.
I infer from the evidence that the mother likely told the children they would have to move, but that is in fact a reality due to the sale of the former matrimonial home.
The mother did unilaterally change the children’s school. In doing so, I accept she was influenced by genuine concerns about finances and the risk that she would need to meet the private school fees due to the father’s financial difficulties. The mother has very recently secured rental accommodation relatively close to the children’s current school and they will not be required to change schools.
When the mother changed the children’s school, she exercised parental responsibility which she had at law and this was not contrary to any order or formal parenting agreement. It would have been preferable for her to consult with the father, but in light of the financial disagreement between the parties it is unrealistic to have expected her to have done so and consultation may have caused further disputes to which the children may have been exposed.
Counsel for the father criticised the mother for only producing the rental offer letter[21] during the hearing of the review application, but the date of the letter was after the interim orders were made and could not have been produced at the interim hearing on 6 March 2025. Had it been copied to the father after it was received and before the review hearing, I doubt it would have made any difference at all to the father’s position.
[21] Exhibit R5.
As the father offered to alleviate the travel required by the mother for changeover of care prior to the interim orders, the parties have demonstrated that they can facilitate changeovers effectively at a public place located between their two residences without issue. Indeed, there is no evidence of conflict being witnessed by the children at changeovers. For these reasons, although I accept changeovers at school are usually preferable, in the circumstances of risk in this case, they are not necessary. This is particularly so because of the interim injunctive orders, which neither party seeks to disturb.
I attribute little weight to the parties’ competing submissions about X’s weight as it is apparent from the parties’ evidence about this topic that, whatever the level of concern about her weight prior to the break down in co-parenting, neither party thought it to be so important or critical as to seek professional advice. There was nothing stopping the father from doing so earlier. Further, the issue is not particularly material or helpful at this interim stage as there is no expert evidence before the Court that her weight requires urgent medical attention or is life threatening.
The father does not dispute that the mother continues to facilitate the children spending time with the paternal great-grandmother,[22] or that she has complied with the interim orders made on 6 March 2025. The mother has returned a negative hair follicle test results and there is plausible explanation for the positive opioid result. All of this assures me that the children are safe and stable in the mother’s primary care and that she will promote the children having a meaningful relationship with the father.
[22] Affidavit of the mother filed 17 February 2025 at [28].
CONCLUSION
Given the lack of proximity of the father’s residence to the children’s school, where they now reside, where they will reside after sale of the former matrimonial home, and the history of their stable care arrangement previously, I consider only a modest increase in the children’s time with the father is warranted and in their best interests in the interim. I accept the submission that the Order 4 was, in all the circumstances, a step too far too soon, when the law and circumstances require a conservative approach.
The parents have now returned to relatively effective co-parenting and the injunctive orders will operate to largely mitigate risks of future verbal abuse of each other, relocation out of the jurisdiction, or conflict for all the foregoing reasons. I reject the submission that the increase in time reflected by Order 4 of the Orders made on 6 March 2025 is necessary to balance or avoid risk in mother’s care.
The application for review succeeds. Orders will be made discharging Order 4 of the Orders made on 6 March 2025. Further, there will be interim orders that the children live with the mother and spend time with the father in a fortnightly rotation as follows:
(a)In week 1 from the conclusion of school on Wednesday (or 3:00pm if Wednesday is not a school day), until the commencement of school Thursday (or 9:00 am if Thursday is not a school day); and
(b)In week 2:
(i)From the conclusion of school on Wednesday (or 3:00pm if Wednesday is not a school day), until the commencement of school Thursday (or 9:00am if Thursday is not a school day); and
(ii)From the conclusion of school on Friday (or 3:00pm if Wednesday is not a school day), until 12:00pm on Sunday.
In addition, as the parents have demonstrated they can facilitate changeovers at an agreed public place, the orders will provide that on non-school day changeovers are to occur at McDonald’s in Suburb C.
These further interim orders will still permit the children to benefit from their relationship with the father and the paternal extended family. They reflect a cautious and conservative progression of the children’s time with the father, which is likely to be objectively tolerated and maintains a similar pattern of time the children have been accustomed to for years.
As the children will be leaving the former matrimonial home in the near future to live in a rental property, they will likely benefit from the maintenance of time with the mother and the secure attachment she has afforded them for years.
Overnight time on Wednesdays in the father’s care will avoid the children travelling up to an hour to sports training and an hour back after training, which I infer is likely undesirable and tiring, given the children’s ages. It will also limit in person changeovers. The additional night fortnightly on the weekend, maintains the number of nights the father customarily had on weekends fortnightly but consolidates it to the same weekend. The orders proposed by the mother for week 2 return of the children to her care at 7.30pm is undesirable due to likely routines required for school the next day.
After expert evidence is obtained about the competing facts in dispute, there may be good cause to increase the father’s time, but that ought to be assessed in the future.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 11 April 2025
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