FALCONE & NEWITT

In *Falcone & Newitt*, the Family Court of Australia was asked to make interim orders concerning the living arrangements and time spent with a child of almost three years of age. The applicant father sought orders for the child to live with him and for certain restraints on the mother, following allegations of the mother's intention to remove the child from the state without consent. The dispute was significantly complicated by the mother's history of alcohol abuse and an eating disorder, and the parties' considerable animosity and distrust.

The central legal issue before the Court was to determine the child's best interests in the context of interim orders, particularly in light of the mother's acknowledged history of alcohol dependence and the father's concerns about her capacity to care for the child. The Court was required to assess the risk, if any, that the mother's past or potential future alcohol consumption posed to the child's wellbeing, and to consider the mother's assertions of recovery and abstinence. The Court also had to navigate the challenges of making findings of fact in an abridged interim proceeding, focusing on undisputed matters and avoiding definitive factual conclusions where evidence was contested.

Justice Macmillan applied the principles of determining a child's best interests, acknowledging the limitations of interim proceedings in making definitive factual findings. The Court considered extensive affidavit material, expert reports, and recorded evidence, including video and audio recordings. The mother contended she had addressed her alcohol issues and should have increased time with the child, while the father raised concerns about her insight and capacity to maintain sobriety. The Court noted the mother's history of hospitalisations for alcohol abuse and eating disorders, and the conflicting evidence regarding her recent abstinence. Crucially, the Court found that even if the mother had maintained sobriety for the period she asserted, it was insufficient to satisfy the need for sustained recovery, as suggested by expert reports, before significantly increasing her time with the child.

Consequently, the Court made interim orders for the child to live with the father, with specific supervised time and communication arrangements for the mother. These orders included restraints on the removal of the child from Australia and Victoria, and prohibitions on the mother consuming alcohol while the child was in her care or in the 12 hours prior. The parties were also restrained from denigrating each other in the child's presence. The matter was listed for further directions and preparation for trial.