GRAHAM & KOVACS

The matter before Tree J concerned an application by the father seeking to vary existing consent orders regarding the living arrangements and parental responsibility for the parties' children. The mother had previously filed an Application in a Case seeking to vary these orders, but at the hearing, her solicitor indicated a preference for the trial to resume as soon as possible rather than for her application to be determined. The father also had an appeal pending against contravention orders, and he argued that the trial should not resume until his appeal was heard. The court noted that the father would suffer no prejudice if the trial resumed prior to the appeal being determined.

The court was required to determine several legal issues, including whether the father's applications for orders changing the children's living arrangements and parental responsibility were in the best interests of the children. Specifically, the father sought orders for the children to live with him and for him to have sole parental responsibility, contrary to the existing consent orders which provided for the children to live with the mother and for her to have sole parental responsibility. The court also considered the father's application for a recovery order, which he alleged was to address the mother's alleged inconsistency with providing weekend care, despite the existing orders not entitling him to have the children in his care at that time.

Tree J reasoned that the issues raised by the father could be more fully explored at trial rather than through summary examination in an interim application. The court observed that despite consent orders contemplating intensive counselling and an intention to avoid further litigation, the parties had engaged in persistent conflict. The counselling had been unsuccessful, and the trial was already part-heard, with a resumption scheduled. The court was not persuaded that the orders sought by the father, concerning living arrangements, parental responsibility, or a recovery order, were in the best interests of the children. Consequently, the father's applications were dismissed.

The court ordered that the trial of the matter would resume on a date to be advised in sittings commencing 13 April 2015, with an estimated hearing time of four to five days. The father's Application filed on 29 September 2014 seeking a Recovery Order was dismissed, as was his Response to an Application in a Case filed on 19 September 2014.