FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQUARO & AQUARO | [2019] FCCA 1140 |
| Catchwords: FAMILY LAW – Parenting – interim – competing parenting proposals where both parents seek the Children live with them – allegations of alcohol abuse by the Mother – mental illness – discussion of unacceptable risk – held that it is in Children’s best interests to live with the Father on an interim basis – Maternal Grandparents to be in substantial attendance of time spent between the Mother and Children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62B, 64B(1), 65DA(2), s.68L(2) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR AQUARO |
| Respondent: | MS AQUARO |
| File Number: | MLC 3269 of 2019 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing dates: | 8 and 9 April 2019 |
| Date of Last Submission: | 9 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hoult |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Ms R. Stoikovska SC |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
Orders 1 to 3 of the Orders made on 9 April 2019 be discharged.
UNTIL FURTHER ORDER
Parenting
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children [X], born on … 2012 and [Y], born on … 2013 (Children).
The Children live with the Father.
The Children spend time with the Mother:
(a)Each alternate weekend from the conclusion of school or 3.00 pm Friday until 6.00 pm Sunday, commencing 10 May 2019;
(b)Each alternate Wednesday from the conclusion of school until the commencement of school the following Thursday or 10.00 am if a non-school day, commencing 15 May 2019;
(c)Otherwise as agreed between the parties in writing (including text or email).
The Mother’s time with the Children be in the substantial attendance of Ms B (Maternal Grandmother) and/or Mr C (Maternal Grandfather) (together Maternal Grandparents).
For the purposes of change over:
(a)On the alternate weekend time the Mother shall request that the Maternal Grandparents or either of them, collect the Children from School D Primary School and the Father shall collect the Children from the Maternal Grandparents’ residence at the conclusion of their time with the Mother.
(b)On the alternate Wednesday night time the Mother shall request the Maternal Grandparents or either of them, to collect and return the Children to School D or to the Father’s residence,…
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- AGLC
- AQUARO & AQUARO [2019] FCCA 1140
- Case
- [2019] FCCA 1140
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim parenting arrangements for the children, specifically where they should live and the nature of their time spent with each parent. A key issue was assessing the risk posed by the Mother's alleged alcohol abuse and mental health issues to the children's well-being.
Her Honour found that it was in the children's best interests to live with the Father on an interim basis. The court applied principles relating to the paramountcy of the children's welfare and the need to protect them from unacceptable risk. Consequently, the orders provided for equal shared parental responsibility but stipulated that the children reside with the Father. The Mother was granted specific time with the children, with the significant condition that her time be supervised by the Maternal Grandparents. Further orders addressed injunctions restraining the Mother from consuming alcohol or drugs prior to and during her time with the children, mandated various therapeutic and testing interventions for both parents, and appointed an Independent Children's Lawyer.
Orders
Orders of the court
1.
Orders 1 to 3 of the Orders made on 9 April 2019 be discharged.
UNTIL FURTHER ORDER
Parenting
2.
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children [X], born on … 2012 and [Y], born on … 2013 (Children).
3.
The Children live with the Father.
4.
The Children spend time with the Mother:
(a) Each alternate weekend from the conclusion of school or 3.00 pm Friday until 6.00 pm Sunday, commencing 10 May 2019;
(b) Each alternate Wednesday from the conclusion of school until the commencement of school the following Thursday or 10.00 am if a non-school day, commencing 15 May 2019;
(c) Otherwise as agreed between the parties in writing (including text or email).
5.
The Mother’s time with the Children be in the substantial attendance of Ms B (Maternal Grandmother) and/or Mr C (Maternal Grandfather) (together Maternal Grandparents).
6.
For the purposes of change over:
(a) On the alternate weekend time the Mother shall request that the Maternal Grandparents or either of them, collect the Children from School D Primary School and the Father shall collect the Children from the Maternal Grandparents’ residence at the conclusion of their time with the Mother.
(b) On the alternate Wednesday night time the Mother shall request the Maternal Grandparents or either of them, to collect and return the Children to School D or to the Father’s residence, as the case requires.
Injunctions
7.
For 24 hours immediately prior to the commencement of any time spent with the Children (including any period during which the Children spend time with her), and during all such time spent, the Mother be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, (or having a blood alcohol concentration above 0.05), save and except for:
(a) Any legal medication prescribed for the Mother by a registered medical practitioner, and taken or used by the Mother strictly in accordance with such prescription; and
(b) Any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
8.
The Mother participate and complete any and all in-patient and/or out-patient alcohol addiction programs (Treatment Program) as may be recommended by her general practitioner and continue with all prescribed medications as advised by her general practitioner.
9.
The Mother provide to the Father’s solicitors a certificate of completion of any and all recommended Treatment Programs.
Tests, Assessments and Counselling
10.
That within 14 days of the date of these Orders the Mother undertake a Carbohydrate-Deficit Transferrin (CDT) Test.
11.
The Mother forthwith attend upon a psychiatrist for a psychiatric assessment and follow any recommendations made by the psychiatrist. A copy of the Child Inclusive Memorandum to the Court, dated 9 April 2019 may be given to a psychiatrist consulted by the Mother pursuant to this Order.
12.
The Father forthwith do all acts and things to attend psychological counselling through a general practitioner to manage grief and loss and any other matters considered relevant.
13.
The Mother forthwith do all acts and things to attend psychological counselling through a general practitioner to manage past trauma and drug and alcohol use and any other matters considered relevant.
Parenting Courses
14.
The Father forthwith participate and complete a Tuning into Kids Program and a Parenting After Separation Program with CentaCare.
15.
The Mother forthwith participate and complete a Parenting After Separation Program with Relationships Australia.
Father to Complete Men’s Behaviour Change Course
16.
The Father is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program as recommended by the Men’s Referral Service located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street, Melbourne.
17.
The Father is to provide proof of attendance and completion of the Men’s Behaviour Change Program to the Mother’s solicitors by 30 November 2019.
Appointment of Independent Children’s Lawyer
18.
Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children [X], born on … 2012 and [Y], born on … 2013 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a) Forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b) Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.
(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ is published at (http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccwweb/about/policies-and-procedures/guidelines-independent-childrens-lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d) The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.
Further Listing
19.
The matter be adjourned to the Federal Circuit Court of Australia on 21 August 2019 at 9.30 am for mention.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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