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 interrupted, particularly given [Y]’s confusion around the issue and his desire to see Mr A and spend time with him. The mother’s evidence also includes letters dated 12 October 2018 from the Department of Health and Human Services (“the Department”), where they indicate that they don’t hold concerns with respect to [Y]’s wellbeing in her care after they carried out investigation.

5. The father opposes the mother’s application. He points to what he says are some omissions in the updated family report and some unexplained but very strong changes in views that [Y] expressed. In the 2017 family report, [Y] spoke about Mr A being the angriest person in the family and spoke about him being the aggressor with respect to the assault on the father, which both children witnessed. Now [Y] is talking about a very positive relationship with Mr A, being unclear about why Mr A and his father could not be friends, the interruption to his family unit which he has experienced with his mother and Mr A living together, and also Mr A’s two older children spending regular time in that household.

6. The father says that the risk issues still need to be tested at a final hearing, and expresses concern that Mr A has minimised and downplayed an incident where he was convicted of assault in 2009.  It is certainly clear and acknowledged by the parties that the dynamics in this matter are complex.  It is a situation where [X] lives with his father and spends very limited daytime time with his mother, though the mother reports that that relationship is improving, whereas [Y] lives with the mother and spends substantial and significant time with the father. One of the difficulties, particularly for [X], in this case is the presence of Mr A and his fear of him.

7. In coming to the view that I am going to dismiss the mother’s application and not make any changes to the orders at this stage, I am mindful that the trial is a little over four weeks away. It is at the final hearing where all the evidence needs to be tested, including the evidence of Mr P, the parents and Mr A. I am also mindful that there is Mr A’s criminal proceedings, which are going to be heard the week before the trial.  It may well be, if the conviction is upheld and Mr A is sentenced to a period of imprisonment, then that may lead to further confusion for [Y] if he is reintroduced to him only for there then to be another significant period being apart.

8. I am very aware that this situation is very distressing for the mother, in having the absence of her partner in her home. However, given that the final hearing is in the next few weeks and given that the evidence needs to be tested, I am of the view that the order I made in August 2018 should remain on foot.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 19 November 2018