John & John (No 2)
[2023] FedCFamC2F 539
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
John & John (No 2) [2023] FedCFamC2F 539
File number(s): PAC 2085 of 2020 Judgment of: JUDGE STREET Date of judgment: 16 May 2023 Catchwords: FAMILY LAW – PARENTING – Interim Orders – where child has made significant disclosure to non-live with parent- change of residence of mature aged child – pick up arrangements -procedural orders for final hearing Legislation: Family Law Act 1975 (Cth); Part VII Cases cited: John & John [2022] FedCFamC2F 1360 Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 13 March 2023 Place: Sydney Counsel for the Applicant: Ms Mattar Solicitor for the Applicant: Vaikom Law Solicitor for the Respondent: Az Legal Second Respondent: In person Counsel for the Independent Children’s Lawyer Mr C Sperling Independent Children’s Lawyer Kathryn Renshall Lawyers ORDERS
PAC 2085 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JOHN
Applicant
AND: MS JOHN
First Respondent
MS ROWE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
13 MARCH 2023
THE COURT ORDERS THAT:
Procedural Orders
1.Order 2, made on 6 October 2022, is vacated.
2.The matter is fixed for a final parenting hearing at 10:00am on 17, 18 and 19 May 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Act 2021 (Cth).
3.The Applicant Father, Respondent Mother and Second Respondent may file short updating affidavits together with an updated case outline on or before 5 May 2023.
4.Leave is granted to the ICL to provide an updated case outline on or before 5:00pm on 16 May 2023.
5.Leave is granted to the parties, including the ICL, to issue further subpoenas provided they are filed and served on or before 28 April 2023.
6.Photocopying access is granted to all parties, including the ICL, subject to any proper notice of objection.
7.Leave is granted to parties and ICL to provide the Family Report Writer with any further updating material produced on subpoena as well as the material that has been filed.
8.Leave is granted to the parties to provide consent orders, to be made in chambers if appropriate.
9.The parties and ICL may provide any supplementary tender material on or before 5:00pm on 16 May 2023.
Interim Parenting Orders
10.Orders 15 and 16, made on 6 October 2022, are suspended.
11.The Children; V (F, 2006), W (M, 2007), Z (F, 2010) and Y (M, 2010) live with the Mother.
12.The Child X (M, 2009) live with the Father.
13.V and W spend time with their Father in accordance with their wishes.
14.X spend time with their Mother in accordance with their wishes.
15.The Father and Mother must accommodate and facilitate any request by the Children to spend time with the other parent. They must not otherwise impede or frustrate the wishes of the Child in that regard.
16.In relation to the Father’s time with Y and Z, the Father is to spend time with Y and Z as agreed and, failing agreement, as per the following:
(a)Each alternate weekend commencing after school on Friday, 3:00pm if not a school day, or a time agreed between the parties, until the commencement of school on the following Monday.
(b)When the Father’s time ceases on a Monday of a non-school day, the Father is to drop the children to the Mother’s home.
(c)In relation to Z, if she expresses a wish to not spend overnights at her Father’s home, the Father is to contact the Mother and advise her and make arrangements for Z to be dropped off at the Mother’s home.
17.In the case that handover occurs at the Mother’s residence, the party or person attending is to remain in the vehicle given the age of the children and the Mother is not to approach the vehicle.
Schooling
18.The Father and the Mother authorise any school that any of the Children may attend to provide:
(a)Copies of all reports of the children to both the Mother and the Father and also to the Paternal Grandmother, Ms Rowe.
(b)Copies of newsletters and announcements of all school activities or other material pertaining to the education of the children to both the Mother and the Father.
19.The Mother and the Father authorise staff members at any school that either of the Children may attend to discuss that Child’s progress with both parents.
20.These orders shall be deemed as the Father and Mothers’ authorisations to any school that the Children attend.
21.That the Father and Mother and the Paternal Grandmother may attend school events which parents and/or relatives are invited to attend on a school day including prize days, school sports carnivals and parent teacher interviews.
22.That a copy of these orders may be provided by either the Mother or the Father or the Paternal Grandmother to the school attended by the Child or any of them.
23.That the Mother and Father shall ensure the punctual attendance of the Children on each school day and in the event either Child is unable to attend school for the whole day then that parent inform the other parent within two (2) hours that of the start of school that the Child is not attending (including the reason for such non-attendance) by text.
Medical
24.In relation to X, with whom X is with, that parents is responsible in ensuring that X attends his appoints at V Mental Health Service.
25.Each parent is to comply with X’s medication, and they are to ensure that X’s medication is at the home that he is residing at or staying at, either the Mother or Fathers.
26.That during any period during when any of the Children are with the Father, in the event that either Child is hospitalised or receives medical attention, the Father shall notify the Mother as soon as practicable (and in any event within two (2) hours) after that Child’s first contact with either the medical practitioner, medical centre or hospital, AND also provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the Child.
27.That during any period during which any of the Children are with the Mother, in the event that any Child is hospitalised or receives medical attention, the Mother shall notify the Father as soon as practicable (and in any event within two (2) hours) after that Child’s first contact with either the medical practitioner, medical centre or hospital, AND also provide the Father with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the Child.
28.That during any period during when any of the Children are with the Paternal Grandmother, in the event that any Child is hospitalised or receives medical attention, the Paternal Grandmother shall notify the Mother as soon as practicable (and in any event within two (2) hours) after that Child’s first contact with either the medical practitioner, medical centre or hospital, AND also provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the Child.
29.That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by any Child while in the care of the Father.
30.That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by either Child while in the care of the Mother.
31.That the Paternal Grandmother shall ensure the Mother is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by either Child while in the care of the Paternal Grandmother.
32.That the Mother and Father consult in relation to the attendance of either Child on any medical specialist for any Child (such medical specialist include any specialist medical practitioner; dentist, orthodontist, speech pathologist, ophthalmologist, occupational therapist or other therapist (hereafter referred to as “consultant”) PROVIDED FURTHER THAT:
(a)In the event that either Child is referred to such consultant the parent who made the referral shall inform the other in writing within 24 hours of such referral to any such specialist medical appointment;
(b)That the parent who makes the initial appointment shall within 24 hours after the initial appointment is made and prior to the first appointment advise the other parent and authorise the consultant to discuss any matters with the other parent;
(c)That the parent who obtains the referral shall do all acts and things to ensure that the other parent is provided with copies of any test results, letters, referrals that he or she has received from and by any such consultant within 24 hours of receipt of such material by that parent;
(d)That each parent be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device but that the parents not be present during any family therapy sessions with the Children.
33.The Court reserves its written reasons in respect to these parenting orders.
THE COURT NOTES THAT:
34.The ICL intends on explaining to the Children, individually, the effect of these Court orders.
35.Order 14, made on 6 October 2022, remains in place.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym John & John has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were before the Court today for an intended three-day hearing. At the commencement of the hearing all three parties indicated that an adjournment was required in circumstances where, unfortunately, without any fault, the applicant had been in hospital for almost two weeks immediately prior to the hearing. The applicant was unable to take steps that may have assisted the Court in relation to the parenting issues concerning the five children, whose names are as follows; V (aged 16), W (aged 15), X (aged 14), Z (aged 12) and Y (aged 12).
The Court was informed by the Independent Children’s Lawyer (“ICL”) that the two elder children wished to continue to live with the mother and spend time with their father in accordance with their wishes. The Court was informed that X, who is now 14, informed the ICL that he wished to live with his father and spend time with his mother in accordance with his wishes. The Court was informed that one of the twins, Y, was also desirous of living with his father, whereas his twin sister, Z was, at this stage, desirous of not spending time with her father.
This is a matter in which the Court delivered an interim decision in respect of an earlier adjournment in John & John [2022] FedCFamC2F 1360. The Court treated as having before it the affidavits that had been filed in accordance with the case outlines. The Court was also provided with filed tender bundles which the Court has treated as having before it, including the material produced on subpoena addressing the hospitalization of the applicant. It is not necessary for the Court to again set out the material and the Court accepts the following chronology:
Date Event 1955 Date of Birth of Ms Rowe (“Paternal Grandmother”) Second Respondent 1971 Date of Birth of Ms John (“Mother”)
Born in City C, Country D1978 Date of Birth of Mr John (“Father”) 2000 Date of Birth of E (child of Mother and another)
Child resides in Country D
#50 Fam Report2003 Date of Birth of F (child of Mother and another)
Child resides in Country D
#50 Fam Report2005 Father and Mother meet in Country G Mother alleges it was late 2005
#2 MA 9/7/20202006 DATE OF BIRTH OF V
Child of relationship
Currently aged 15 years
Child allegedly born in Country DFebruary 2007 Father alleges date of commencement parties live together 2007 DATE OF BIRTH OF W
Child of relationship
Currently aged 14 years2009 DATE OF BIRTH OF X
Child of relationship
Currently aged 12 years2009 Date of marriage 2010 DATE OF BIRTH OF Y
Child of relationship
Currently aged 12 years2010 DATE OF BIRTH OF Z
Child of relationship
Currently aged 12 years2019 Father alleges Mother went to Country D for 4 weeks to celebrate her father’s (MGM) birthday.
Father and children remain in Australia.
Father alleges MGF subsequently dies while Mother in Country D and Mother did not return for a further three and a half weeks.
#6-9 FA 6/5/2020September 2019 Paternal Grandmother moves from Sydney (Suburb H) to Region J
#15 PGM 11/2/2022Early 2020 Father alleges children’s passports not where they were and 20-30k of her jewellery not present
Father alleges he attended neighbour to discuss matter and police subsequently attended on him “in response to a complaint made by that neighbour”.
#15 FA 6/5/2020Early 2020 Father alleges incident with Mother and mother subsequently called the police.
Father alleges police speak to them both and then leave.
#16-17 FA 6/5/2020Early 2020 Father alleges furthe4r incident with Mother and a Mr L (aka Mr K) and police subsequently attend.
Father alleges police speak to them both and then Mother leaves without the children.
#18-22 FA 6/5/2020Early 2020 Father alleges Mother returns to home father alleges they speak by the leaves for work and is subsequently told by his daughter that the children and the Mother had left. He alleges child informed him where they were going (M Shopping Centre) Father alleges he called the police. Father alleges he attend M Shopping Centre finds mother and children. Father alleges incident with Mr L where Father hit him.
Father takes children. Police attend and arrest Father.
#23-28 FA 6/5/20206 April 2020 Date of Final Separation 6 April 2020 Father alleges Mother and children depart from former matrimonial home at N Street, Suburb O Early 2020 Court Attendance Notice
Father charged with Assault
Listed for Suburb M Local Court mid-20206 April – 6 May 2020 Father alleges he has no contact with the children or the Mother and have their phone turned off 6 May 2020 Father files Initiating Application (signed 5/5/2020, Notice of Risk, Affidavit of non-filing of certificate and Affidavit 8 May 2020 Father files two Applications in a Case (seeking same orders)
Notice of Risk (as per Notice of Risk of 6/5/2020)
Affidavit (as per Affidavit of 6/5/2020)Mid-2020 (Thursday) Father alleges he receives a telephone call from Mother alleges saying “the children can come and get them or you can come and get them or I will take it to the school”
#6 FA 26/6/2020Four days later in Mid-2020 (Monday) Father alleges he attended O School and P School to see the children
#7 FA 26/6/2020One day later in Mid-2020 (Tuesday) Father alleges he attended O School and P School to see the children
#7 FA 26/6/2020Two days later in Mid-2020 (Thursday) Father alleges he attended O School and P School to see the children
#7 FA 26/62020Mid-2020 (Monday) Father alleges he took X, Y and Z home so they could pick up their school uniforms and then dropped them back to school during their lunch break.
Father alleges he then went and tool V and W to the home got some items and dripped them at the bus stop.
#7 FA 26/62020Mid-2020 Father alleges children do not attend school for 3 days and he requests police welfare check. Father alleges the police inform him they will not be doing a welfare check “because they have been relocated as the children are currently in the case of FACS”.
#10 FA 26/6/2020Mid-2020 Father alleges telephone calls from the children and the Mother
#11-15 FA 26/6/2020Mid-2020 Father alleges telephone call from the children X, Y and Z.
Father alleges Y (then almost 10) says “sometimes mummy says she is going to lock me in the laundry in the dark and lave me there”. Father alleges he hears Mother and hears Y starts to cry and call ended. Father alleges he calls police to do a welfare check.
Father alleges during call to police he asks about documents but is told they can’t tell him over the phone
#16, 23 FA 26/6/2020Mid-2020 Father alleges he locates and takes V to her home and sees Mother and children X and Y and Z there with Mother.
Father alleges Mother informs him of AVO (not yet served on him)
Father alleges he requests for the children to have dinner with him and that occurs
#19 FA 26/6/2020Mid-2020 Father alleges children with him.
Father alleges children inform him they are hit by mother and also that the Mother leaves it up to them to themselves ready for school.
Father alleges he calls the Mother and said “I will return the children not sure when it will be either tonight or tomorrow”.
Father alleges further conversation and that the Mother agreed the children could stay with him for the weekend.
Father retains the children with him.
#20-24 FE 26/6/2020Mid-2020 Mother alleges “[Mr John] took all 5 children from me [in mid‑2020]”
#8 MA 9/7/2020Mid-2020 Father deposes he is served with ADVO returnable … 2020 in the Local Court at Suburb Q.
Order is provisional ADVO for protection of MotherMid-2020 Father deposes “I was concerned that she (Mother) had made promises to get the children to come back so when I was served I would not be able to see or approach the children. I then decided not to drop the other children home. I dropped [V] home Saturday morning as she had plans for her friends to sleep over[…]”.
#19 FA 26/6/202020 June 2020 Mother alleges V returned home
#9 MA 9/7/202020 June 2020 – July 2020 Children (other than V with the Father) 21 June 2020 Paternal Grandmother comes to Sydney and is with the Father and children until 21 July 2020
#34-49 PGM 11/2/202026 June 2020 Father files Amended Initiating Application
Notice of Risk
Affidavit7 July 2020 Mother alleges V went to see her siblings in presence of FACS workers
#12-19 MA9/7/20207 July 2020 Mother files Response to Initiating Application Notice of Risk and Affidavit 8 July 2020 Orders of the Court (Judge Newbrun)
Adjourn to 9/7/2020
S69ZW request to Police and Department of Communities and Justice9 July 2020 Orders of the Court (Judge Newbrun)
Directions for filing affidavit that day
Adjourn recovering order to 9/7/2020 at 3pm9 July 2020 Orders of the Court (Judge Newbrun)
Reserve decision to 10/7/202010 July 2020 Orders of the Court (Judge Newbrun)
Consent orders re drug and alcohol testing
Adjourn recovery order to 21/7/202021 July 2020 Orders of the Court (Judge Newbrun)
Father to deliver children to Mother 3:30pm 21/7/2020
Recover order to lie in chambers
Mother to take all reasonable steps to ensure children attend school
Restraint on removal of children from Australia
Time with Father and children at a supervised contact centre or professional contact service supervision 2 hours per week
Without admission Mother not physically chastise children
S68L appointment
CIC for 14/8/2020
Adjourn for mention 4/9/202013 August 2020 Telephone call with Father and Family Consultant CIC memo 14 August 2020 Telephone call with Mother and Family Consultant CIC memo 13 August 2020 Telephone call with Father and Family Consultant CIC memo 17 August 2020 Interview with Mother and Family Consultant in person CIC memo 4 September 2020 Orders of the Court (Judge Newburn)
Consent orders re telephone calls 3 times a week (Tues Thurs and Sat) up to 1 hour between 6 and 6:30pm
Adjourn to 21/7/20208 September 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p311 September 2020 Interview with children and Family Consultant in person CIC memo 16 September 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p321 September 2020 Orders of the Court (Judge Newbrun)
Enrolment of each child in Anchor Program
Without admission amend prior order to read both parents not physically chastise children
Adjourn to 13/11/2020
Notation At mention court will consider the father previous compliance with random drug testing requests by Independent Children’s Lawyer.
Notation Court will ascertain if Father has obtained any relevant information relating to participating in illicit drug relapse prevention.
Notation includes Father has sought to comply with previous orders, there is a 6 month waiting period in contact centres he has contacted6 October 2020 Independent Children’s Lawyer request chain of custody urine
Single Expert Report p3October 2020 Father undertakes urinalysis drug test
None detected6 November 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p313 November 2020 Orders of the Court (Judge Newbrun)
Consent orders supervision by R Contact Centre.
Mother to complete and provide intake documents by 16/11/2020
Mention 2/12/2020
Notations include
The court is informed that the father has recently obtained legal representation
The Independent Children’s Lawyer and the mother submit that the father has Not complied with recent requests by the Independent Children’s Lawyer for drug testingNovember – December 2020 Father spends time with children on six occasions supervised by R Contact Centre
Family report of 25/5/20212 December 2020 Orders of the Court (Judge Newbrun)
Family report
Adjourn to 28 May 2021 for mention12 December 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p316-20 December 2020 Paternal Grandmother comes to Sydney and is with the Father and children
#52-55 PGM 11/2/202219 December 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p326 December 2020 Independent Children’s Lawyer request chain of custody urine
No response
Single Expert Report p3March April 2021 Interviews for Family Report of Ms U 25 May 2021 Orders of the Court (Judge Newbrun)
Release of Family report26 May to June 2021 Paternal Grandmother comes to Sydney and is with the Father and children
#59-63 PGM 11/2/202228 May 2021 Orders of the Court (Judge Newbrun)
Adjourn to 10 September 2021 for mention
Arrangement for COMP13 August 2021 Orders of the Court (Judge Campbell)
No orders made10 September 2021 Orders of the Court (Judge Newbrun)
Adjourn to 25 October 2021 for mention
Notation COMP (mediation) on 6/10/202125 October 2021 Orders of the Court (Judge Newbrun)
Adjourn to 16 November 2021 for mention
Notation father seeking legal representation16 November 2021 Orders of the Court (Judge Newbrun)
Directions for filing prior to callover 1/4/2022
S 102NA13 December 2021 Orders of the Court (Judge Newbrun)
Callover and compliance listing before court on 1/4/2022 vacated
Listed before Judge Street on 8/2/20228 February 2022 Orders of the Court 25 March 2022 Orders of the Court (Judge Street)
Ms Rowe joined as second respondent
Matter fixed for hearing
S62G report
2nd respondent to file consolidated affidavit by 28/5/2022 and list of objections and case outline by 2/9/202219 July 2022 Interview with Family Consultant and Mother via Teams 8-16 August 2022 Paternal Grandmother comes to Sydney and is with the Father
#8 PGM 5/9/202210 August 2022 Interviews with Family Consultant and Father and Paternal Grandmother via Teams 11 August 2022 Interviews with Family Consultant and children in person Mid-2022 Paternal Grandmother alleges she is informed child X (aged 13) “had been taken to hospital by ambulance from school yesterday because [of a mental health episode]”.
#16 PGM 5/9/202226 August 2022 Family Report Ms T 2 September 2022 Orders of the Court (Judge Street)
Release of Family Report dated 26/8/20225 September 2022 Affidavit of Paternal Grandmother 13 September 2022 Orders of the Court (Judge Street)
Release of Family Report dated 26/8/20226-7 October 2022 Hearing Dates
The one material change that has occurred is in relation to the wellbeing of X, who appears recently to have made a confidential disclosure, in relation to a relationship, to his father and not to his mother, consistent with X having a level of trust in his father beyond that that he currently reposes in his mother. It is also the case that X has expressed, both to his father in his father's affidavit as well as to the ICL, the wish to live with his father and to spend time with his mother in accordance with his wishes. The Court appreciates that this is an interim parenting hearing, and has made further orders of a procedural kind, vacating the hearing date and refixing it for hearing on 17, 18 and 19 May 2023.
The Court had made orders as identified in the earlier decision in John & John [2022] FedCFamC2F 1360 and on the evidence before the Court, it is not apparent that the respondent complied with Orders 15 and 16, specifically in relation to X spending time in accordance with his wishes with his father. This is not the occasion to determine whether there has been a contravention of the Court's orders, but rather it is apparent that the respondent has had difficulty complying with the Court's orders made in October, which reflects upon the Court's assessment as to the mother's parenting capacity, specifically in relation to X.
The respondent mother put on an affidavit identifying the steps she had taken in relation to X and his mental health. The ICL's orders accommodate whichever parent X is living with, continuing to have the benefit of expert assistance in relation to V Mental Health Service and medication. Whilst the ICL does propose that X should continue to live with the mother pending the final hearing, it is with the mother with whom X has been residing whilst these problems in relation to his mental health and his relationship with another person have occurred.
The Court is of the view that considerable weight should be placed on the views expressed by X, given his age, notwithstanding the submission by the ICL, in circumstances where it is apparent that the child has a greater confidence and trust in his father in relation to his own personal circumstances and his intimate relationship with another person. The Court is, of course, required to take into account whether there is any unacceptable risk to X in making an interim order that he live with his father.
There has been no positive drug tests in relation to the father and the orders that were proposed identify proposed overnight time for all children with the father. The ICL submitted that it was preferable to permit the continuance of the status quo pending the hearing on 17, 18 and 19 May 2023. The statutory regime under Part VII of the Family Law Act 1975 (Cth) and the principles are identified in the earlier adjournment decision, John & John [2022] FedCFamC2F 1360, which the Court has taken into account, and in particular that the paramount concern is the best interests of the child, not preservation of the status quo.
The Court is conscious of the fact that X has been in an environment living with his other four siblings and that the making of an order that he live with his father changes that environment both in relation to X and the other children. Whilst the court is not in a position to make final findings in relation to the contested factual issues in respect of the past, the Court is not satisfied that there is now any unacceptable risk to X if an order is made by the Court permitting him to live with his father and to spend time in accordance with his wishes. The Court is of concern that if it were to impose an order for X to continue to live with his mother when he has expressed the opposite desire, that this may, at his age and maturity, be more detrimental to his health and emotional wellbeing than ignoring or declining to accommodate his wish. At this stage, on balance the potential harm to X by compelling a regime contrary to his wishes, is an unacceptable risk that outweighs the benefit of the existing parenting orders continuing to require X to live with his mother. The gravity of that possible harm to X’s emotional wellbeing is serious in terms of psychological health and the magnitude of that risk manifesting is in the circumstances at this state unacceptably high if there is no immediate change to the parenting arrangements for X.
The Court has not at this interim stage made parental responsibility orders and, accordingly, each parent continues to have parental responsibility for the children. The Court is satisfied that the respondent mother may continue to have a meaningful relationship with X by accommodating X spending time with his mother in accordance with his wishes. The Court is also of the view that a mandatory order contrary to the child's wishes may be one that, in the circumstance of this case, could diminish the benefit of that relationship with his mother if he were required to continue to live with the mother on an interim basis.
The Court has given greatest weight to the primary consideration in relation to protecting X from physical and psychological harm, or from being subject to or exposed to abuse, neglect or family violence. The Court is satisfied that the proposed order in relation to X, notwithstanding the ICL's submissions and the submissions of the first respondent, are in X's best interests.
The Court also notes that an issue was raised as to the time at which the alternate weekend time was to commence for Y and Z. The ICL's proposal had been Saturday at 10.00 am. The applicant sought after school on Friday and otherwise 3.00 pm on non-school day. Picking the children up from school after a school day obviously diminishes the possibility or conflict between the parties in the collecting of the children after school. The Court also made an order requiring the parties to remain in the vehicle when collecting the children on a non-school day from the mother's premises.
The Court is satisfied that the proposed variations raised by the applicant are in the best interests of the twins, Z and Y, in relation to spending significant and meaningful time with their father. The Court is satisfied that the proposed changes give greatest weight to the primary consideration in relation to the need to protect the twins from physical and or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
The ICL acknowledged that a hearing date in May, would lessen, even though not remove the ICL's objection in relation to the proposed orders in respect of X. As the Court has been able to refix the matter of hearing on 17, 18 and 19 May, the Court made orders to facilitate the parties providing up to date material by supplementary affidavit that will hopefully permit the matter to be heard on a final basis on the next hearing.
For these reasons that the Court made the orders pronounced and these are the reserved written reasons for those orders.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 16 May 2023
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