STOREY & PORTUS

This matter concerned an application by the father to vary earlier interim parenting orders. The father sought to take the two children, X and Y, to a specified country for a holiday and also sought additional time with them during the Christmas and January school holidays. Existing interim orders had not made provision for this holiday period. A Family Report had been filed, recommending that the children spend extra time with the father. The court was also required to consider an issue of practice and procedure regarding the number of affidavits that could be relied upon at interim hearings.

The primary legal issues before Judge Scarlett were whether the interim parenting orders should be varied to permit the father to take the children overseas and to grant him additional time with them during the upcoming school holidays, and whether the Family Report's recommendations should be given weight in this determination. Additionally, the court had to address the procedural question of the appropriate limit on the number of affidavits to be relied upon by each party at an interim hearing, particularly in light of an affidavit filed on the day of the hearing.

In determining the application, Judge Scarlett dismissed the father's request to take the children out of Australia. The court reasoned that, in the context of interim orders, the onus was on the applicant to demonstrate that such a significant change was in the children's best interests and that the risks associated with international travel had been adequately addressed. While acknowledging the Family Report's recommendation for increased time, the court ultimately granted the father additional time with the children during the Christmas/January school holidays, specifying particular periods. The court also indicated that parties should generally rely on one affidavit per witness at interim hearings.

The court ordered that the father's application to take the children overseas be dismissed. The children were ordered to spend additional time with the father during the Christmas/January school holiday period, specifically from 12:00 noon on Christmas Day to 12:00 noon on 5 January 2015, and from 12:00 noon on 16 January 2015 to 12:00 noon on 23 January 2015, in addition to any time already provided by previous orders. All other interim applications were dismissed, and the matter was to proceed to a final hearing on the scheduled dates.