Melton & Domara
[2022] FedCFamC2F 361
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Melton & Domara [2022] FedCFamC2F 361
File number(s): ADC 1244 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 22 March 2022 Catchwords: FAMILY LAW - Parenting – where the mother makes an application pursuant to the rule in Rice v Asplund to revisit final parenting orders – where final orders were made by consent in July 2020 – where mother was self-represented at that hearing – where mother alleges that she did not understand that final orders were being made on that occasion – where it is not clear on the transcript whether mother had received advice at the time final orders were made - where in the alternative, the mother says that a family violence incident between the parties in August 2021 enlivens the rule in Rice v Asplund – where it is in the best interests of the children to re-open the final orders application on the basis of the family violence incident – where a Family Report is ordered Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 69ZL. Cases cited: Marsden & Winch [2009] FamCAFC 125; (2009) 42 Fam LR 1.
Rice v Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
SPS & PLS (2008) FLC 93-263
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 18 March 2022 Place: Adelaide Solicitor for the Applicant: Mr Wabnitz for Daniel John Lawyers Solicitor for the Respondent: Mr Fryer for Salisbury Lawyers ORDERS
ADC 1244 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DOMARA
Applicant
AND: MR MELTON
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
22 MARCH 2022
UPON NOTING THAT the proceedings were conducted by telephone
THE COURT ORDERS THAT:
1.The mother’s Amended Response filed on 9 December 2021 shall not be dismissed at this preliminary stage pursuant to the rule in Rice v Asplund.
2.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children X born in 2014 and Y born in 2017 (‘the children’) attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 2 September 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child/ren and upon his/her relationship with the father if the Court made orders as sought by the mother;
(d)the impact upon the child/ren and upon his/her relationship with the mother if the Court made orders as sought by the father;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
3.Not later than 4:00 pm on 29 May 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
4.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
5.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
6.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Any information received from the Embedded Co-Located Officers from SAPOL or the Department of Child Protection.
(b)Exhibit F2 being a USB stick of footage of an incident between the parties on 29 August 2021.
7.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
8.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
9.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
10.Upon production of the said Family Report, the parties and legal representative (and the Independent Children’s Lawyer) attend a Family Dispute Conference at the Legal Services Commission of South Australia on 26 September 2022 at 9:30am.
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
11.The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a)a copy of the said Order; and
(b)the current contact details of the parties (including current postal and telephone details).
12.The parties, or their solicitors, forward to the Legal Services Commission of South Australia Family Dispute Resolution Unit, at least twenty-eight (28) days prior to the date of the Conference, a copy of all documents filed with the Court on their behalf.
13.All interim applications are dismissed as finalised.
14.The proceedings be adjourned for directions to 10 October 2022 at 9:30am by telephone.
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 a pseudonym Domara & Melton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This matter comes before the Court by way of interlocutory application filed by the mother on 9 December 2021 seeking that the previous final orders made by Judge Heffernan (as he then was) on 22 July 2020 be set aside. In colloquial terms, the argument is one pursuant to the rule in Rice & Asplund[1] whereby the mother seeks to reopen final parenting orders in relation to the parties’ two children.
[1] Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570.
The mother alleges that she should be allowed to ‘re-open’ the final orders application because:
(a)She did not understand that final orders were being made on 22 July 2020; and
(b)Further and in the alternative, that an incident of family violence between the parties on 29 August 2021 requires a reopening of parenting applications based on ‘the best interests of the children’ being the primary consideration.
On 18 March 2022, I heard argument in relation to the mother’s application to reopen the proceedings pursuant to the rule in Rice & Asplund. These reasons are provided pursuant to section 69ZL of the Family Law Act1975 (Cth) (‘the Act’). Section 69ZL(1) provides that a Court may give reasons in short form for a decision it makes in relation to an interim parenting order.[2]
[2] Family Law Act 1975 (Cth) s 69ZL(1).
BACKGROUND
The parents in this case are Mr Melton, the applicant father (‘the father’). The father is the applicant in the substantive proceedings, but the respondent in terms of the current interlocutory application. The mother is Ms Domara (‘the mother’). She is the respondent in the substantive proceedings, but the applicant in the interim proceedings.
The parties are the parents of two children, X born in 2014 and Y born in 2017 (‘the children’).
The proceedings commenced on 1 April 2019 when the father filed an Initiating Application. Such application was amended on 25 January 2022. The mother filed a Response on 19 February 2020 and an Amended Response to Initiating Application on 9 December 2021.
During the course of these proceedings, each of the parties have at various times been represented by different firms of solicitors. For her part, the mother has been represented at various stages in the proceedings by Duncan Basheer Hannon, Mr Christian Cifuentes and more recently by Mr Wabnitz. For a period of time, including an important timeframe when final orders were made on 22 July 2020, the mother was unrepresented.
For his part, the father has been represented at various times by Mr Seymour at the Legal Services Commission, the Alex Mandry Legal Group and more recently by Salisbury Lawyers. Similarly, the father has also appeared unrepresented at various times during the course of these proceedings.
It is not necessary for the purpose of these reasons to traverse the entire history of the litigation between these parties, save and except that I note the following in terms of the chronology at or about the time that final orders were made with respect to most parenting applications on 22 July 2020.
On 14 July 2020 the matter was listed before Judge Heffernan (as he then was). On that occasion, for reasons that are not explained, the mother failed to appear at Court. Judge Heffernan was presented with a draft minute of order which had not been signed by the mother. His Honour was informed by counsel for the father that the parties had negotiated and understood that final orders could be made.
In the absence of the mother appearing at that hearing, the Court adjourned the matter to 22 July 2020 for directions or the making of possible orders by default. On 22 July 2020, the mother appeared at the hearing before Judge Heffernan unrepresented. His Honour had reference, and I understand it to be an agreed position, to the draft minute of order that had been forwarded to the Court on 14 July 2020.
That minute of order remained unsigned by the mother at the time that his Honour received the minute of order. The transcript of the hearing before the Court has been tendered as an exhibit and is marked Exhibit F1. The transcript dated 22 July 2020 shows that Ms Fuda of counsel appeared on behalf of the father and the mother appeared in person.
I have read and considered the transcript as set out in Exhibit F1. It is clear from the transcript that at various tranches across the passage between Ms Fuda, the mother and his Honour a reference was made to the making of “final orders”. The mother engages with his Honour and refers to the fact that she wishes to seek orders in relation to travel and confirms that the parties remain in dispute with respect to the issue of the Christmas school holidays.
The mother has also filed an affidavit in these proceedings, more recently on 9 December 2021 in paragraph 8, where the mother deposes in that affidavit to being fluent in the English language. This deposition in her affidavit appears to be at odds with the order of 28 October 2019, where the mother appeared before Judge Heffernan unrepresented but with the assistance of an Arabic interpreter.
What I can understand from looking at the transcript, however, is that the mother was able to converse with Judge Heffernan in relation to the making of the final orders. She was able to express her opinion in relation to topics which she says were not identified in the final order.
I am prepared to proceed today on the basis that the mother well understood the topics which were discussed before his Honour and also understood that there would be the making of final orders with respect to the bulk of the topics that the parties had negotiated and were the making of final orders on 22 July 2020.
I am therefore satisfied on the material before me, including the mother’s own affidavit filed on 9 December 2021 that the mother had no difficulty understanding or conversing with Judge Heffernan and understood that there would be the making of final orders that day.
Following on from the making of the final orders by Judge Heffernan on 22 July 2020, the matter was adjourned on 11 December 2020, 4 March 2021, 18 November 2021 and 31 January 2022 wherein it was obvious that the parties were yet to reach agreement in relation to initially the two outstanding issues, being travel and Christmas holidays. The matter then became more complicated by virtue of the mother filing on 9 December 2021 an application pursuant to the rule in Rice & Asplund seeking to reopen the entirety of the proceedings.
I note for the purposes of these reasons that it was not until, at least on the Court file, 18 November 2021 that the mother raises the question of not understanding the orders as being final orders, despite there being approximately 16 months between the making of those orders and the occasion that the issue was first formally raised with the Court.
During the period between 22 June 2020 and 18 November 2021, the parties had appeared before the Court on six separate occasions. It was not until 18 November 2021 that the mother through her solicitor raised the issue of Rice & Asplund. The mother has not put before the Court any medical or psychiatric evidence to explain her functioning at the time those orders were made. Those issues are critical in my view, given the submissions made by Mr Wabnitz on behalf of the mother that at the time the orders were made she was suffering from “personal and financial circumstances” which prevailed upon her to consenting to final orders that the children live with the father.
The mother submits that it was her personal circumstances relating to the loss of employment brought about by the COVID-19 pandemic, together with being the full-time carer for a young child who was born of another relationship, that caused her to consent to those orders in a sense at a time when her psychological functioning was in a fragile state.
In the absence of any medical or psychiatric evidence with respect to those issues, I do not think I am in a position to accept those submissions on behalf of the mother without support of any form of corroborative evidence in this regard.
However, what is not evident from the transcript is whether or not the mother had ever received any advice or had been told that the making of final orders could enliven an argument from a legal perspective pursuant to the rule in Rice & Asplund. The mother was unrepresented at that time. I think I can proceed on the understanding that no advice was provided by a solicitor, because in fact the mother had no solicitor acting. Nor does his Honour enquire as to whether or not the mother had sought advice and nor did the Court provide by way of general observation that the making of final orders would enliven the rule in Rice & Asplund.
I am not prepared to go so far as to assume that the mother understood that the making of those final orders could enliven the rule in Rice & Asplund. That supposition is simply not available to me on the material currently before the Court.
INTERIM HEARING ON 18 MARCH 2022
For the purposes of this argument, the mother’s Amended Response seeks to set aside the orders of 22 July 2020 and seeks orders for sole parental responsibility, that the children live with the mother and that the children spend time with the father on each alternate weekend from after school Friday to the start of school Monday. Various orders are also sought with respect to what might be described as specific issue type orders and injunctions.
In support of the application the mother relies upon two affidavits. One being the affidavit filed on 9 December 2021 and the second an affidavit filed on 16 March 2021. The second affidavit filed 16 March 2021 was filed one month post the Court ordered timeframe. I invited Ms Fuda on behalf of the father if there was to be any embarrassment to her client to make the requisite application for an adjournment which would be favourably received.
However, Ms Fuda, on behalf of the father, indicated that the argument could proceed and adopted the Court’s invitation to address the Court orally with respect to any matters that the father might say embarrassed him, given the late service of that document.
The father for his part relied upon the Amended Initiating Application filed 25 January 2022 and an affidavit filed on 25 January 2022.
Each of the parties filed an Outline of Case Document as directed. I have had regard to the material set out in each of the written submissions provided by the parties. The parties were also represented at the hearing on 18 March 2022 by experienced family law counsel and extensive submissions were made by each of the parties in support of their respective positions.
As outlined above, the mother’s essential position is that:
(1)She understood the orders to be an interim order rather than a final order; and
(2)That she was in a position where her psychological functioning was compromised, such that she consented to orders for the children to live with the father on a final basis at a time when she was not fully functional.
The father for his part disputes all of the matters raised by the mother as to, firstly, the misunderstanding of the nature of the hearing and, secondly disputes that the mother was not in a position to understand or give her proper consent to those orders.
As I say, I have trouble accepting the first limb of the mother’s argument to reopen under the rule of Rice & Asplund based on the material currently before the Court.
FAMILY VIOLENCE INCIDENT ON 29 AUGUST 2021
There is, however, a second limb to the mother’s application which relates to an incident which occurred between the parties on or about 29 August 2021. The incident which occurred on this occasion was captured by way of CCTV footage at the home of the mother. The CCTV footage has been admitted into evidence and is marked Exhibit F2.
The parties each refer to the incident in their respective affidavits. As part of the argument and at the joint invitation of the parties, I stood down during the course of the hearing to consider the CCTV footage which was captured by three separate cameras angled in different directions to the entrance, the front and the elevator area of the mother’s accommodation.
It is clear from the CCTV footage that the mother left the building that she occupied and then walked down the street before entering a motor vehicle occupied by the father’s partner. The mother entered the motor vehicle uninvited and it would appear from material before the Court, after a period of time activated her mobile telephone so as to tape the conversation that she was then having with the father’s partner.
As part of the mother’s case, she sought to be able to rely upon the tape taken of her conversation on 29 August 2021. I declined to receive that evidence at the hearing in circumstances where reliance upon that tape was provided as notice to the Court for the first time in the mother’s Outline of Case Document filed on the day of argument, and in circumstances where there was no capacity or ability for the Court to even hear that transcription, if it had permitted the tape to remain in evidence.
Unlike the father, the mother had not sought to adduce the audio recording in a format which would have been readily available for the purposes of the hearing on 18 March. Accordingly, after hearing submissions from each of the parties’ counsel, the Court dismissed the mother’s application to rely upon the audio recording.
The Court, however, did receive with the consent of the parties the USB stick which contained footage of the incident between the parties on 29 August 2021.
Returning to the events of that day, it is evident that after the mother entered the father’s partner’s motor vehicle the father then exits his motor vehicle and walks back towards the mother.
The parties are then seen to speak with one another on the footpath adjacent to the motor vehicle belonging to the father’s partner. Presumably it was at this point in time, although of course there is no sound to the CCTV footage that I have received, the father became aware for the first time of the mother having taped a conversation with his partner in her motor vehicle.
The father is seen to forcibly remove the mother’s mobile telephone from her possession. The parties are then seen to scuffle with one another and the mother lashes out at the father seeking to retrieve her mobile phone. The physical altercation between the parties then moves into the foyer entrance to the mother’s residence.
It is then evident from the CCTV footage that an extremely distressing incident occurs between the father and the mother. I accept the submission made by Ms Fuda on behalf of the father that the mother was the provocateur in terms of the first strike at the father. However, the father’s conduct thereafter and the manner in which the mother was physically manhandled in the foyer entrance to her residence was extremely disturbing.
The parties are seen to wrestle to the ground. The mother is seen as having her arm twisted behind her back. The mother is then pinned to the ground with considerable force. The father, who demonstrably from viewing the CCTV footage, is a man of considerable size and strength, then pins himself onto the mother’s back and is also observed at one stage as pinning his knee onto the neck of the mother. The mother’s wig is removed and thrown to the ground.
This incident took place in the presence of a person who I assess to be a domestic cleaner who remained present during this incident in a public location. Another woman is also seen to be present in the foyer during this altercation. I was not addressed as to the identity of the woman, but would understand her to be the father’s domestic partner.
The incident which occurred between the parties in the foyer of the mother’s residence was as I say, extremely disturbing on a number of levels. Whilst the mother’s behaviour in striking the father after her mobile telephone can be seen as provocative, the father’s reactions and the way in which the mother was treated thereafter, given the obvious difference in size between the father and the mother, and the steps then taken by the father to restrain the mother, were extremely distressing to watch.
In circumstances where I am being asked to revisit the parenting arrangements of the children, it is the incident of family violence that most troubles the Court at this stage of the proceedings. In addition, the Court remains concerned as to whether or not the mother had any understanding that the making of final orders would enliven the rule in Rice & Asplund.
THE RULE IN RICE & ASPLUND
I turn now to the rule in Rice & Asplund. Rice & Asplund was a case in which the mother applied to change a custody order which had been made in the father’s favour nine months earlier. The matter went to hearing and the trial judge ordered a change of residence. The father appealed. The appeal was dismissed. However, in the judgment handed down by the Full Court Chief Justice Evatt said as follows:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which the orders is based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever-present factor in human affairs. Therefore the Court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a Court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.[3]
[3] Rice v Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570.
This pronouncement became known as the rule in Rice & Asplund. Over the years that followed, it became common for Courts to consider not just at the end of the hearing but at a preliminary stage whether there were circumstances which justified reconsideration of an earlier order.
In the decision of Marsden & Winch[4] the Full Court emphasised that when the Court was considering whether to dismiss an application at a preliminary stage, the paramount consideration remained the best interests of the children.
[4] Marsden & Winch [2009] FamCAFC 125; (2009) 42 Fam LR 1.
Referring to Warnick J’s decision in SPS & PLS[5] the Full Court stated as follows:
Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary. We agree with the conclusion reached by Warnick J reached (at [81]) that:
…when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure. But, rather, because assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.[6]
[5] SPS & PLS (2008) FLC 93-263.
[6] Marsden & Winch [2009] FamCAFC 125; (2009) 42 Fam LR 1 at [47].
The Full Court then went on to discuss the matters the Court should consider in determining whether a fresh application should be allowed to proceed and stated as follows:
In Miller & Harrington (2008) FLC 93-383,the Court posed the question,
105. Adapting the language used by Warnick J in SPS & PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstance shown to justify embarking on a hearing?[7]
That question might be better formulated in another way in the following proposition, namely, that there is a requirement,
(1), for a prima facie case of changed circumstances to have been established and,
(2), for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on the hearing.[8]
[7] Ibid [57].
[8] Ibid [58].
EVALUATION
The overarching test always will be the best interests of the children. Section 60CA of the Act provides that the Court in deciding to whether make a particular parenting order in relation to a child must regard the best interests of the child as the paramount consideration.[9]
[9] Family Law Act 1975 (Cth) s 60CA.
Section 60CC(1) of the Act provides that subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).[10] Under the heading of primary considerations, section 60CC(2) sets out the following,
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[11]
[10] Ibid s 60CC(1).
[11] Ibid s 60CC(2)(a)-(b).
Section 60CC(2A) directs that in applying the consideration set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph 2(b), namely, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[12]
[12] Ibid s 60CC(2A).
In determining the child’s best interests section 60CC(3) sets out additional considerations that are to be considered.
For the purposes of these short form reasons, I have had regard to section 60CC(3) and bring to account the relevant sections in so far as they relate to the circumstances surrounding the application before me today.
I have reached the decision that it is appropriate for the mother to be able to proceed with her application pursuant to the rule in Rice & Asplund.
I come to this decision in circumstances where, as I say, the need to protect the children from physical or psychological harm or being exposed to or subjected to abuse, neglect or family violence, is the priority consideration to be given in determining the children’s best interests.
The incident which occurred between the parties on 29 August 2021 is a clear example of family violence and abuse within the definition contained in section 4AB of the Act. Both parties were involved in the incident. However, having seen the video, the Court is concerned with the excessive force that was used by the father on the mother in a public location.
In addition, the benefit of the children having a meaningful relationship with each of the child’s parents, in my view, cannot be supported by an order which sees the children spending only alternate weekends with the mother during school term time and for a brief period each Wednesday.
The parties in this case have an order for equal shared parental responsibility. As part of the pathway in determining equal shared parental responsibility, the Court is required to give consideration as to whether or not the children should live equally or spend time with the other parent in what has been described as ‘substantial and significant time’. In my view, an order that the two children spend time with their mother on alternate weekends during school time does not reach the level of substantial or significant time, given that prior to the making of the final orders the children had in fact been in the mother’s care for a period of time post-separation. The children also have a younger half sibling now living with the mother, born in 2021.
CONCLUSION
I am satisfied for the reasons set out herein that it is appropriate for the proceedings to continue and for the rule in Rice & Asplund not to be invoked. That is not to say, however, that the Court falls into line with the suite of orders sought by the mother to apply at the conclusion of this hearing.
The Court is not minded to make any order which either changes the arrangements for the primary care of the children or to interfere with the current orders for time spending. The Court proposes to order that a Family Report take place and for a Court Child Expert to assess and make recommendations as to orders that might be considered in the children’s best interests.
It is upon having all of that information that the Court will then be in a position to determine the matter in circumstances where, as I say, the two young children currently see their mother on alternate weekends and for half school holidays and special occasions. There is a younger sibling now in the care of the mother. The primary consideration must be given to the children’s best interests bringing to account the considerations set out in section 60CC(2) which in this particular instance weigh in favour of the proceedings being allowed to proceed.
For all of the above reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 25 March 2022
0
2
0