SASTRY & SASTRY (No.2)

[2020] FCCA 1569

FEDERAL CIRCUIT COURT OF AUSTRALIA

SASTRY & SASTRY (No.2) [2020] FCCA 1569

Catchwords:
FAMILY LAW – Interim parenting- urgent recovery Order sought-best interests of child-recovery Order and other interim parenting related Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 67U, 67V

Cases cited:

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Rice & Asplund (1979) FLC 90-725

Applicant: MS SASTRY

Respondent: MS SASTRY

File Number: PAC 5927 of 2017

Judgment of: Judge Newbrun

Hearing date: 5 June 2020

Date of Last Submission: 5 June 2020

Delivered at: Parramatta

Delivered on: 15 June 2020

REPRESENTATION

Solicitors for the Applicant: Mr Lam - John & Co Lawyers

Solicitors for the Respondent:	Mr Hamka - King & York Lawyers
Independent Children’s Lawyer	Mr Samuel - Brian Samuel & Associates

ORDERS PENDING FURTHER ORDER

1. That Order 7 of the Orders dated 11 December 2019 be discharged.

2. That the mother be restrained from permitting or allowing the children to have any contact or communications with the mother’s partner Mr B.

3. That the mother enter into a written Undertaking to be filed with the Court to the above effect.

4. Upon the Undertaking pursuant to Order 3 being filed with the Court the father is to forthwith return the children to the mother.

5. Subject to the mother’s compliance with the above Orders, the children’s time with the father pursuant to the Orders dated 11 December 2019 shall commence on Friday, 26 June 2020.

6. In the event that the mother does not file and serve a written Undertaking to the above effect by 4pm on Wednesday 17 June 2020, the children shall live with the father and spend time with the mother in similar terms to the children’s time with the father pursuant to the Orders dated 11 December 2019.

7. Subject to the mother’s compliance with these Orders and in the event that the father again retains either or both of the children in breach of the parenting Orders dated 11 December 2019, all time between the children and the father pursuant to such Orders be suspended pending the final hearing of these proceedings or until such other time that the Court considers to be in the best interest of the children.

8. That a copy of these Orders be provided to the children’s respective schools.

9. The parties shall file and serve any Amended Application or Response upon which they intend to rely by no less than 21 days before the Final Hearing.

10. Each party shall file and serve one consolidated affidavit of their evidence in chief and one affidavit from each witness upon which they rely in support of the orders sought by them, not less than 21 days before the Final Hearing.

11. Neither party may rely on any document filed other than in compliance with these orders without leave of the Court.

12. Each party shall file and serve a Case Outline not less than 7 days before the Final Hearing, setting out:

    (a)a chronology,

    (b)a precise Minute of Orders sought;

    (c)a list of documents to be relied upon;

    (d)a brief summary of argument touching upon the matters set out in sections 60CC(2), (2A) & (3) with reference to the relevant evidence relied upon.

    (e)A list of authorities to be relied upon.

13. Where a party wishes to cross examine the Family Report writer at the Final Hearing, that party shall provide written confirmation to the Family Report writer within 14 days from the date of allocation of Final Hearing dates and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable, the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.

14. The party responsible for the payment of any fee including a setting down or hearing fee, do pay or cause to be paid such fees as shall be payable by that party in accordance with and within the time specified in, the Family Law (Fees) Regulation 2012.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5927 of 2017

MS SASTRY

Applicant

And

MR SASTRY

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This interim hearing predominantly related to the determination of the mother’s urgent proposed recovery Order in relation to the children X born in 2008 and Y born in 2011.

2. Pursuant to an interim parenting judgement of the Court dated 11 December 2019, the children were ordered to live with the mother and spend time with the father.

3. The father has retained the children in his primary care, without the mother’s consent, since about 14 May 2020.  (In this context, the Court should state that the mother asserts in her Affidavit filed 3 June 2020, that on or about 27 May 2020 she informed one of the children’s schools that she had decided to allow the father to retain the children until the matter was heard before the Court on 4 June 2020).

4. The father alleges, inter alia, that the mother remains in a relationship with Mr B, who the father contends is a dangerous man, and that the mother permits this gentleman to have contact and communication with the children.

5. The Court refers to its interim judgement and Orders, including the Reasons for Judgement, of 11 December 2019.

6. In that judgment, the Court made the following restraining Order (Order 7) against the mother in relation to Mr B:

   7. That the mother be restrained from permitting or authorising her partner Mr B from having any contact with the children except as follows:-

   7.1.   All such contact is to be supervised by and in the presence of the mother.

   7.2.   The mother is to only permit such contact initially for short periods;

   7.3.   Mr B is not to sleep overnight during any periods when the children are living with the mother.

   7.4.   The mother shall follow the guidance of the children’s counsellor (referred to later in these Orders) when allowing or extending her partners contact with the children.

7. In the Court’s judgement at paragraph 37 it stated:

   37.    The parties consent to the ICL’s proposed restraining Order relating to the mother’s alleged former partner Mr B. In this context, the Court takes into account, inter alia, the mother’s very recent evidence that she has terminated her relationship with this gentleman.

8. The above Order 7 was the ICL’s proposed restraining Order relating to Mr B within the context of the interim hearing to which the Court’s above judgement related.

9. At this interim hearing, the ICL essentially proposed that the mother’s proposed recovery Order be made, but only in circumstances where Order 7 above was discharged; the mother was restrained from permitting or allowing the children to have any contact or communications with Mr B; that the mother enter into a written undertaking to be filed with the Court to the above effect; and that upon this undertaking being filed with the Court the father was to forthwith return the children to the mother.  The mother agreed with such proposed Orders.  The father opposed such Orders and sought an interim parenting Order for the children to remain living with him in his primary care.

10. Accordingly, an important question at this urgent interim hearing was whether, if the Court was considering whether to make the above proposed fresh restraining Order against the mother-forbidding the mother from permitting the children to have any contact or communication with Mr B-was there at least a significant risk that the mother would not obey such fresh restraining Order? The father contended that the Court could have no confidence that the mother would obey such a restraining Order. The mother and ICL effectively contended that, on the material before the Court, it could not conclude that there was a significant risk that the mother would not obey such a restraining Order.

11. The Court should also state that these parenting proceedings are presently set down for final hearing to commence on 5 August 2020.

Proposals

1. The ICL’s proposed Orders are set out in Exhibit E, and these Orders are supported by the mother but opposed by the father.

2. The father sought interim parenting Orders, inter alia, that all previous parenting Orders be discharged; that the parties have equal shared parental responsibility in relation to the children; that the children live with the father; and that upon the mother filing and serving a signed undertaking that the children will not come into contact with Mr B, the children spend time with the mother during the school term as agreed between the parties and, in default of agreement, each alternative weekend from the conclusion of school or from 3 PM on Friday until the commencement of school or 9 AM on Tuesday.

Material relied upon

1. The father relied upon the following documents:

   a)his Application in a Case filed 19 May 2020;

   b)his Affidavits filed 17 May 2020 and 4 June 2020;

   c)his Aide Memoir – Tender Bundle of NSW police subpoenaed material-summary of COPS entries;

   d)his Tender Bundle containing 42 pages

2. The mother relied upon the following documents:

   a)her Application in a Case filed 22 May 2020;

   b)her Case Outline for a recovery Order dated 4 June 2020;

   c)her Affidavits filed 21 May 2020 and 3 June 2020;

   d)the Affidavit of Mr B filed 3 June 2020.

3. The ICL relied upon the following documents:

   a)his Case Outline dated 30 May 2020 with an Annexure;

   b)his proposed Minute of Orders: Exhibit E;

   c)his Tender Bundle of documents: Exhibit B;

   d)Family Report dated 6 November 2019.

Agreed facts unless otherwise stated

1. The Court refers to the discussion above under the heading “Introduction and background”.

2. On 26 August 2019, by consent, the Court made interim parenting Orders, inter alia, that the mother be restrained from allowing Mr B (and/or his son) from coming into contact with the children whilst they are in her care pending the interim hearing.

3. In the family report interviews held on 29 October 2019, the mother told the family report writer, inter alia, that she had been in a relationship with Mr B for five months, and they both view the relationship as serious and long-term.  The mother told the family report writer that Mr B does not use drugs or misuse alcohol, does not have any mental health issues, and does not have a criminal history.

4. Again, the mother’s evidential position at the interim hearing held on 3 December 2019, was that she had terminated her relationship with Mr B.  She asserted in her Affidavit filed 21 May 2020 that on 28 November 2019, Mr B and the mother reached a mutual agreement to stop seeing one another.

5. In the mothers Affidavit filed 19 March 2020, paragraph 31, she denied that she has re-partnered with Mr B.

6. In the mother’s Affidavit filed 21 May 2020 the mother asserted that Mr B and herself reconciled their relationship on 26 March 2020 asserting, inter alia, that the only reason they reconciled “was because being apart became too difficult for us as we both care very deeply for one another.”  The mother further asserted that she ensured that the children had very gradual exposure to Mr B over time in efforts to ensure that the children were easing into this change.  The mother asserted that she had never witnessed Mr B be violent to anybody.  She asserted that in the very limited interactions Mr B has had with the children, he has always been friendly.  The mother asserted that she would never place the children in an environment that would expose them to any type of risk.  She asserted that if she ever sensed or even had the slightest hint that Mr B posed a danger to be around the children, she would not hesitate or think twice about it and end her relationship with Mr B immediately.

7. The mother asserts that she has not breached the Orders dated 11 December 2019 in any way, as she has ensured that the children were never left alone with Mr B, nor has she allowed Mr B to ever stay overnight or spend extended periods of time with the children.

8. The mother denied that she had ever “dragged” the children with her to lunches with Mr B, nor did she ever force the children to communicate with him.  The mother refers to an occasion when she drove one of the children to Mr B’s workshop to drop something off in relation to her engine.  On this occasion, the mother asserts that at no point did Mr B ever come into contact with that child.

9. The Court refers to the other denials and assertions made by the mother in relation to Mr B and the children in her Affidavit filed 21 May 2020.

10. The Affidavit of Mr B asserts, inter alia, that he is currently in a relationship with the mother.  He asserts that they reconciled in about March 2020.  He asserts that he has respected the Court Orders dated 11 December 2019.  He asserts that the children have never acted in a way around him or said anything to him that would suggest they are scared or uncomfortable around him.  The Court refers to his other assertions and denials in his Affidavit, including in relation to his contact with the criminal justice system, and his admissions relating to threats made out of anger towards his ex-partner who Mr B alleges had stolen money from him at the time.

11. In the Affidavit of the father filed 17 May 2020, he asserts, inter alia, that after the Court’s restraining Orders of 26 August 2019 relating to Mr B, the children were reporting to the father that they were being “dragged to lunches” with Mr B, forced to communicate with him, being taken to his workplace and home, and otherwise being forced to continually come into contact with him.  In this context, the Court refers to the mother’s denials.

12. The Court refers to other assertions made in the father’s Affidavit filed 17 May 2020 in relation to Mr B and the mother, and again the Court refers to the mother’s denials in this context.

13. The father’s assertions that the children had reported to him after the earlier interim hearing that the mother and Mr B had reconciled lacks particularity.  The father’s assertions that the mother is forcing the children’s relationship with Mr B, including allegedly forcing the children to speak to Mr B on the phone, similarly lacks particularity, including as to dates.

14. The father’s assertions that following the injunction made on 26 August 2019 the mother breached this injunction by exposing the children to Mr B “on several occasions since the Order was made.  This was based on countless remarks made by the children,” similarly lacks particularity.

Rice & Asplund

1. In the view of the Court, there probably has been a significant change in circumstances, and/or a new factor not disclosed at the previous interim hearing, and/or some new factor that has arisen since that earlier hearing (see the decision in Rice & Asplund (1979) FLC 90-725) since the making of the Court’s Orders of 11 December 2019, namely the mother’s resumption of her relationship with Mr B, and the existence of certain allegations in the NSW police material in relation to Mr B (for example, see the allegations in the NSW Police COPS entries for May 2019 – referred to in the father’s Tender Bundle, Exhibit A, pages 18 to 20) such that it is likely that it will be in the best interests of the children to make fresh interim parenting Orders.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

6. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. Section 67U of the Act provides that in proceedings for a recovery Order, the Court may, subject to section 67V, make such recovery Order as it thinks proper.

9. Section 67V of the Act divides that in deciding whether to make a recovery Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The children would appear to have meaningful relationships with the parents and it would appear that the children would benefit from a continuance of those relationships.

2. Should the Court make the mother’s proposed recovery Order, make the ICL’s proposed restraining Orders against the mother in relation to Mr B, and otherwise leave in place the Court’s interim parenting Orders of 11 December 2019, again, there is a reasonable prospect that the children’s meaningful relationship with the father can be maintained.

3. Should the Court decline to make the mother’s proposed recovery Order and make the father’s proposed interim parenting Order that the children live with him, there is a real risk that the children’s meaningful relationship with the mother will be detrimentally affected. In this context the Court takes into account, inter alia, that following the Court’s Orders of 11 December 2019 and until recently the children were living primarily with the mother.  The Court further takes into account in this context the Court’s concern that the children may be exposed to an increased risk of being subjected to denigration of the mother by the father and involvement in the parent’s dispute, at the instance of the father, should they spend time with the father beyond the current interim time-with Orders of 11 December 2019.  The Court takes into account the family report in this context, whilst noting that that report remains untested.

1. The contents of the family report are consistent with the above views.

2. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. As to the ICL’s proposed restraining Order against the mother in relation to Mr B having any contact with the children or communicating with them, the Court should state at the outset that, based upon the material before the Court, including the allegations in the NSW police material in relation to Mr B, it does have some concerns, at this interim stage, in relation to the children coming into contact or communicating with Mr B.  In particular, the Court has a concern that Mr B may have a significant anger management problem and might verbally abuse the mother in the presence of the children.

2. The father asserts that based on the material before the Court, it could have no confidence that the mother would obey an injunction preventing her from permitting or allowing the children to have any contact or communications with Mr B.

3. The father makes numerous assertions that the mother has previously breached the restraining Order against her of 26 August 2019 based significantly upon alleged statements made by the children to him.  He makes further allegations relating to the mother’s alleged contact with Mr B to date, which he alleges is either in breach of the existing restraining Order in relation to Mr B and/or is inconsistent with the mother’s evidence.  The Court again refers to the mother’s denials in this context, and to the assertions of Mr B in his affidavit. 

4. The Court acknowledges that it is required to consider allegations made by a party which are disputed by the other, in the context of parenting disputes such as the present, and the Court has so considered such allegations and assertions of the father.  Again, numerous assertions made by the father and related to alleged statements made by the children lack particularity. 

5. Further, in relation to the children’s alleged statements to the father relating to Mr B, and in relation to the father’s allegations against the mother in relation to Mr B, the Court has a concern as to the reliability of such statements and allegations. 

6. In this context, the Court takes into account the comments of the family report writer, inter alia, that “both of the children appeared keenly aware of their parent’s conflict with each other. They both reported that (the father), in particular, spoke negatively about (the mother) and informed the children about matters to do with the separation and the Court.  It appears possible that the children’s views are influenced by the parental conflict…”. 

7. The Court takes into account the comments of the family report writer at paragraph 98 of the family report as to the limitations of the children’s views and the weight to be placed upon them.

8. Further, in this context, the Court takes into account the family report writer’s comments as to the father appearing on at least one occasion to have directly exposed the children to significant conflict between the parties.

9. Further, in this context, the Court takes into account the family report writer’s comments that the father presented with a particularly poor attitude towards coparenting and towards the mother.  The Court takes into account the family report writer’s comments that the father indicated that he has no intention of communicating with the mother about the children, and he intends to speak to the children directly about issues pertaining to them. The Court takes into account the family report writer’s comments that the father presented as having a far more intense and intrinsically negative view of the mother that may not change with time, and that during the assessment the father’s insight into his behaviour and capacity for change presented as being very limited. 

10. Further, in this context, the Court takes into account the family report writer’s comments in relation to Mr B.  For example, the Court takes into account the family report writer’s comment that the children both reported a sense of distrust about Mr B “and it may be that this is, at least in part, because of one of the parents that they look to for guidance and protection, does not trust Mr B.”  The Court takes into account the family report writer’s comments that given the children’s concerns about Mr B and considering their potential knowledge of the father’s concerns about him, it was likely to be challenging for the children to feel comfortable with him, at least in the short term.

11. Further in this context, the Court takes into account the assertions made by the school principal of the child Y, in relation to the father’s alleged inappropriate behaviour in front of Y on 27 May 2020 at the school; see Exhibit B.

12. In relation to the father’s allegations that the children have made certain statements to him since the family report interviews and to date, in relation to Mr B, particularly in view of the comments of the family report writer in relation to the father and the children, again the Court has concerns as to the reliability of such allegations. 

13. The Court observes that the children’s statements relating to Mr B and related to the family report writer, including that they do not trust Mr B, do not expressly assert facts suggesting that the mother has breached injunctions of the Court relating to Mr B.

14. The Court acknowledges that the family report is presently untested.

15. On the material before the Court, the Court is of the view that there is not a significant risk that the mother will not obey the ICL’s proposed restraining Order that she be restrained from permitting or allowing the children to have any contact or communications with Mr B.  In this context, on the material before the Court, the Court is unable to conclude that the mother has previously breached restraining Orders made against her by this Court in relation to Mr B. The father’s assertions as to alleged breaches by the mother of the Court’s previous (and current) restraining Orders against her can be tested at the final hearing.

16. Further, in this context, the Court is unable to conclude, at this interim stage, and based on the material before the Court, again untested as it is, that the mother has lied or misled the Court in relation to the termination and/or resumption of her relationship with Mr B.

17. In the view of the Court, should it make the ICL’s proposed restraining Orders against the mother in relation to Mr B, there should be no unacceptable risk of harm posed to the children in remaining living with the mother in her primary care.

18. The father alleges that the mother has been leaving the children with third parties which pose a significant risk of harm to the children.  The Court has considered these allegations.  For example, the father expresses his concerns about the mother leaving the children in the care of the maternal grandparents, alleging that the children have told him that those grandparents are saying derogatory things about the father; again, the Court has concerns as to the reliability of such allegations, and the Court refers to its discussions above in relation to the comments of the family report writer.  And further these allegations lack particularity.

19. As to the children, or one of them, staying at the residence of a third-party or at a hotel in the city with a family, in terms of alleged risk to the children, the father’s allegations and concerns lack particularity and appear to be significantly based upon the father’s lack of knowledge of these third parties or families, including arrangements in relation thereto.  On the material before the Court, the Court does not have concerns that the children were placed at significant risk of harm in this context.

Section 60CC(3) - Relevant Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The Court refers to its discussion above under the need to protect primary consideration, including in relation to the comments by the family report writer in relation to the children’s views and the father in relation thereto. 

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers in this context to its discussion above under the primary considerations, in particular the meaningful relationship primary consideration.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There is a significant suggestion on the material before the Court that both parties have demonstrated appropriate attitudes towards the child and to the responsibilities of parenthood, subject to the Court’s discussion above under the need to protect primary consideration, including comments of the family report writer in relation to the father. 

(j) Any family violence involving the child or a member of the child's family

1. Not applicable at this interim hearing.

(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter

1. Not applicable at this interim hearing.

(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child

1. These are interim parenting proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

1. As is apparent from the above discussions under section 60CC, it will be in the best interests of the children, and proper, at this interim stage to make the mother’s proposed recovery Order; to make the ICL’s proposed restraining Orders against the mother relating to Mr B and related proposed Orders. In such circumstances, the parties will be otherwise bound by the applicable interim parenting Orders of 11 December 2019. The Court is of the view that it will not be in the best interests of the children to make the father’s proposed interim Orders that the children live with him. The Court observes that a significant number of proposed interim Orders of the father set out in his Application in a Case filed 19 May 2020 were the subject of previously determined interim Orders of the Court of 11 December 2019.

2. The ICL sought Orders in relation to the parties being restrained from attending either child’s school on days other than when each of them are authorised to do so to deliver to or collect the children from their schools pursuant to the parenting Orders dated 11 December 2019, and a further proposed Order relating to the parents following the schools protocols in this context.  The Court did not hear significant submissions from the parties on these proposed Orders.  The Court is presently of the view that the remaining applicable interim parenting Orders dated 11 December 2019 should ensure that changeovers for the children occur seamlessly and without conflict between the parties in the presence of the children.

3. It will be in the best interests of the children that a copy of these Orders be provided to the children’s respective schools (see the ICL’s proposed Order 12), so as to minimise the risk of conflict occurring in the presence of the children and minimising the risk of confusion for the children at changeovers.

4. The ICL’s proposed Order 6, in Exhibit E, will be in the best interests of the children in that it minimise the risk of the children being exposed to Mr B, and in this regard the Court refers to its discussion above under the need to protect primary consideration.

5. The ICL’s proposed Order 7, in Exhibit E, will be an Order in the best interests of the children in that it will provide the children with stability, and reduce the risk of further conflict occurring between the parties in their presence.

6. The Court should state that it has considered all the father’s concerns in relation to the children remaining in the mother’s primary care but remains of the view that it will be in the best interests of the children to live with the mother on a primary basis at this interim stage.

Parental responsibility

1. The Court did not hear submissions of the parties in relation to this issue, noting that the father sought an interim parenting Order that the parties have equal shared parental responsibility, and accordingly, it is premature to determine this matter. Again, there is a final hearing appointed for 5 August 2020, albeit that this matter is a reserve matter; the Court does not propose to vacate that reserve fixture.  

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:

2. The Court makes the ICL’s following proposed Orders set out in his Minute of Order, Exhibit E: proposed Order 1, 2, 3, 4, 5 (but change Friday, 12 June 2020 to Friday, 26 June 2020), 6 (but change Monday 8 June 2020 to Wednesday, 17 June 2020), 7, 12.

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 15 June 2020