Damani and Damani (No.2)

[2018] FCCA 3367

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMANI & DAMANI (No.2) [2018] FCCA 3367

Catchwords:
FAMILY LAW – Interim application to lift injunction after release of updated family report – report needs to be tested at trial in five weeks’ time.

Applicant: MS DAMANI

Respondent: MR DAMANI

File Number: MLC 5027 of 2015

Judgment of: Judge Harland

Hearing date: 12 November 2018

Date of Last Submission: 12 November 2018

Delivered at: Melbourne

Delivered on: 12 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Grant

Solicitors for the Applicant: Waters Lawyers

Counsel for the Respondent: Mr Williams

Solicitors for the Respondent: Moores Pty Ltd

ORDERS

1. The application filed by Ms Damani on 31 October 2018 be dismissed.

2. Costs of today be reserved.

3. Order 2 of the orders made 9 October 2017 be amended insofar that the parties file and serve their one affidavit or evidence in chief and one affidavit or each witness on or before 20 November 2018.  

IT IS NOTED that publication of this judgment under the pseudonym Damani & Damani (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5027 of 2015

MS DAMANI

Applicant

And

MR DAMANI

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the mother’s application in a case seeking to discharge the interim injunction that I made in this matter on 28 August 2018.  I gave ex tempore reasons for that decision on that day and outlined the background to the matter, and I will not do so again today.  The matter has a trial coming up in a little over four weeks’ time on 12 and 13 December 2018.  The mother’s partner, Mr A, also has a criminal trial the week before the matter is listed for trial before me. Mr A’s criminal trial is an appeal from a conviction for an assault against the father.

3. The mother relies on the updated report of Mr P, who has now provided three reports in this matter.  The previous report prepared in October 2017 had some significance at the previous interim hearing, as did the recent conviction of Mr A.  Mr A’s trial before the [Court] will essentially be a hearing de novo, and the parties’ eldest child, [X], will be a witness in those proceedings, as he was in the earlier proceedings.

4. The mother points to the positive observations in the family report and points to [Y]’s wishes with respect to Mr A. She also points in particular to Mr P’s comments with respect to the nature of the family violence issues in the context of social science, literature and his opinion that it is a low risk in this case, and that he raises a concern about the ongoing impact in the mother’s family unity with Mr A being…