Lister and Eden

[2007] FamCA 488

FAMILY COURT OF AUSTRALIA

LISTER & EDEN [2007] FamCA 488

FAMILY LAW – CHILDREN – Children’s best interests – Interim care orders - Mother and maternal aunt – Conflicting facts – Parties’ conflicting evidence to be tested at final hearing – Interim order children live with mother

Family Law Act 1975 (Cth), s 60CC, s 65DAA(1) and (2)

Goode & Goode (2006) FLC 93-286 pars [68], [69], [72], [73], [74], [81], [82]

APPLICANT: MS LISTER

RESPONDENTS: MR AND MRS EDEN

INDEPENDENT CHILDREN’S LAWYER: MR MARK STEPHEN SHERA

FILE NUMBER: BRF2718 of 2006

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 27 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms A L Hargraves

COUNSEL FOR THE RESPONDENT MOTHER: Ms McDiarmid of Counsel

SOLICITOR FOR THE RESPONDENT FATHER: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

INDEPENDENT CHILDREN'S LAWYER: Mr M S Shera

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1The mother and the maternal aunt have equal shared parental responsibility for the children, a son born in June 1993 and a daughter born in September  2000.

2In relation to paragraph 5 of the orders of the Honourable Justice Carmody made on 7 November 2006 the expression “but not less than they have in the past” be read and construed as meaning time with the maternal aunt, and other members of the children’s extended family, if present:

(a)during school term from after school on Tuesdays until before school on Wednesdays;

(b)once in each weekend for up to 6 hours, but not overnight unless the mother should agree, provided that the son’s attendance at Cadets is not interfered with so that either the mother or the maternal aunt take him and/or collect him from that activity;

(c)during school holidays for up to one week.

3The maternal aunt has liberty to apply, on short notice, by arrangement with the Associate, if between now and the determination of the Division 12A hearing there should be any event or events which in her opinion put the children at risk in the mother’s care.

4The independent children’s lawyer has liberty to apply, on short notice, by arrangement with the Associate, if between now and the determination of the Division 12A hearing the mother should fail to attend any random drug test or should return any adverse drug test result.

5Otherwise, the maternal aunt’s application filed on 2 April 2007 is dismissed.

6The directions made on 2 April 2007 are varied so that the Division 12A hearing proceed at 10am on 19, 20, 21 and 22 June 2007.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2718 of 2006

MS LISTER

Applicant

And

MR AND MRS EDEN

Respondents

REASONS FOR JUDGMENT

Relevant background history

1The son, who is nearly 14 years, and daughter, who is six and a half years, are the children of Mrs Eden, the mother, and Mr Eden, the father, who according to the information in the family report separated in about September 2006.

2On 2 October 2006, on the application of Ms Lister, the maternal aunt, the Judicial Registrar made an interim order by the consent of the mother and the maternal aunt that the mother and the maternal aunt have equal shared parental responsibility for the children; the children live with the maternal aunt; spend time with the mother at all times as may be agreed but failing agreement each weekend from 6 o'clock Friday until 5 o'clock Sunday at the maternal grandparents' home to be supervised by the maternal grandmother; spend time with the father as may be agreed between the maternal aunt, the mother and the father; and other orders to which it is not presently necessary specifically to refer.

3The mother said that when these orders were made, she had not been served with any material by the maternal aunt, her sister, and was "not aware of what was really happening in Court", having discharged herself from hospital related to a gallstone attack and travelled 26 hours by bus (apparently from J, New South Wales) to get to the hearing which she had been told about by the father.  The mother said she was not legally represented at that hearing, however, I note that the order records an appearance for the mother by the duty solicitor.  The father did not appear at that hearing.

4On 7 November 2006, the Honourable Justice Carmody ordered, after a contested hearing at which the mother was represented by Mr Jordan of Counsel, that an independent children's lawyer be appointed; and made interim orders that upon the mother paying a bond to secure accommodation at P property, the orders made on 2 October 2006 be discharged; that upon condition the mother remains at that residence or within a 20 kilometre radius of N, the children live with the mother; spend time with the members of their extended family at all such times as may be agreed between the parties but "not less than they have in the past"; spend time with the father as may be agreed with the mother but at least on each alternate weekend from 9 o'clock until 1 o'clock on Sunday commencing on 19 November 2006; the mother and the father submit to random drug testing as may be arranged by the independent children's lawyer; and other orders to which it is not presently necessary specifically to refer save that a family report be prepared in relation to the matters specified in the order; and that the parties attend for Day 1 of a Division 12A hearing on 22 February 2007.

5At the hearing on 7 November 2006, I have mentioned that the mother was represented by Mr Jordan of Counsel.  The maternal aunt was represented by a solicitor.   The father appeared in person.

6On 22 February 2007, I ordered at the conclusion of Day 1 of the Division 12A hearing, by the consent of the mother then represented by Mr Canning of Counsel, the maternal aunt then represented by Mr Fleetwood of Counsel, and the independent children's lawyer represented by Mr Kehoe of Counsel (the father again not appearing), that the parties attend the dispute resolution service provided by the Court not less than once in each month which the maternal grandparents may attend; the children remain in the N region and continue to attend the N School; the mother and the father continue to subject themselves to random drug testing at the direction of the independent children's lawyer; the children attend upon a counsellor as agreed between the mother, the maternal aunt and if possible the father; and that the orders previously made not be vacated (meaning, I think, as those orders then stood).

7I ordered further that a directions hearing (in effect Day 2 for the purpose of the Division 12A hearing) occur on 9 March 2007.

8I was satisfied on 22 February 2007 that the father (who as I have said did not appear) had notice of the hearing on 22 February 2007.  See the transcript of the hearing on that date.

9On 2 April 2007 (the hearing on 9 March 2007 being vacated for reasons not related to the parties), the mother and the maternal aunt were represented by their solicitors and Mr Shera the independent children's lawyer also appeared.  The father again did not appear.

10On that date, 2 April 2007, the maternal aunt filed by leave an application in a case and supporting affidavit for a further interim order that the mother and the maternal aunt have equal shared parental responsibility for the children; that until the mother secures accommodation on her own in the N region the children live with the maternal aunt; that upon the mother securing accommodation in the N region and dependent upon the results of drug testing, the children spend time with the maternal aunt and the mother on the week about basis Wednesday after school until Wednesday before school and for one week during the school holidays with the maternal aunt (described as one extra week); that the children spend time with the father to be supervised at times to be agreed between the maternal aunt, the mother and the father; the mother not move the children outside the N region; the children continue to attend the N School; the mother and the maternal aunt not change the children's school without the written consent of the other or a Court order; and the orders of Carmody J be discharged.

11On 2 April 2007, apart from directions for the balance of the Division 12A hearing set down for two days on 19 and 20 June 2007, I ordered the maternal aunt's application for further interim orders be heard on 27 April 2007; and that a copy of the order be sent by the Associate to the father at his address last known to the Court.

12On 27 April 2007, the mother relied on the response to an application in a case filed on 6 November 2006 for the purpose of the hearing on 7 November 2006 before Carmody J (not having filed a response to the maternal aunt's application in a case filed on 2 April 2007), her affidavit filed by leave on 27 April 2007 and an affidavit by her solicitor Ms Mumford also filed by leave on 27 April 2007.  The mother, by Ms McDiarmid of Counsel, orally sought that the maternal aunt's application in a case filed on 2 April 2007 be dismissed so that the interim orders made by Carmody J on 7 November 2006 remain in place until the determination of the parties' applications for final orders.

13On 27 April 2007, the independent children's lawyer, Mr Shera, supported the mother's position that the maternal aunt's application in a case for further interim orders be dismissed.  Mr Shera made clear that his decision to support the dismissal had not been an easy one to make and had not been made without equivocation but nonetheless submitted that the children's best interests in the short period between now and the hearing in June, some seven and a half weeks, would best be served by the dismissal of the maternal aunt's application so that the orders made by Carmody J on 7 November 2006 continue to operate until then.

14On 27 April 2007, I was told (affidavit Ms Mumford) that the medical officer responsible for administering the random drug tests on the mother had refused to release the results without specific order for the release; that whilst the maternal aunt had undertaken the intake procedure for the parties to attend the dispute resolution service, the mother had not; and that an order was necessary to ensure that the mother attend the counselling which to date had not occurred.  In relation to the second of these matters it was explained that the mother, in the time since that order, had been preoccupied with other matters which appear to me to be self evident from her material.

15On 27 April 2007, a Friday afternoon, I ordered that:

1The medical officers and medical staff concerned with the random drug testing ordered by the Honourable Justice Carmody on 7 November 2006 (paragraph 8) are authorised to release to Mark Stephen Shera, the independent children's lawyer, all results recorded associated with such testing as and when those results become available.

2The mediation ordered in paragraph 1 of the consent orders made on 22 February 2007 take place no later than 21 May 2007 and the mother attend the intake procedure required for that purpose as soon as possible.

3The parties ensure that the children attend at the L Counselling Service as soon as possible,

and heard argument on the maternal aunt's interim application reserving my decision until today, a Monday.

Events since 7 November 2006

16The mother obtained the accommodation at P property, however it was then sold with settlement effected on 26 March 2007 requiring the mother on that date to give vacant possession.  The mother said she had been given only seven days notice to leave the premises.  She said there is a shortage of rental accommodation in the N region so that despite extensive search she was not able to arrange the lease of a new property until 26 April 2007, being a three month lease which was effected with the assistance of the L organisation.  Mr Shera, from the Bar table, said he had confirmed with the L organisation that the mother now has secure accommodation and that the L organisation would ensure the mother has continued accommodation available to her beyond the present new three month lease.  The mother moved into the new accommodation on 26 April 2007, it being a two bedroom unit in N fully furnished and close to all facilities.

17The mother said that when she was forced to move from P property at short notice she asked the maternal aunt to take care of the children for two weeks until she could find new accommodation, however, because of the shortage of accommodation referred to and financial hardship being suffered by the mother as referred to in her affidavit, the children have been with the maternal aunt between 26 March 2007 and the date of the hearing, 27 April 2007.

18During argument I asked Ms Hargraves, representing the maternal aunt, whether the maternal aunt's application filed on 2 April 2007 had been prompted only because of the mother's loss of her accommodation on 26 March 2007 so that it need not now be pursued.  Ms Hargraves responded to the effect that even without that event the maternal aunt had proposed to bring the application for a number of reasons including that between 7 November 2006 and 26 March 2007, contrary to Carmody J's order, the children had not been spending time with their extended family including the maternal aunt and the maternal grandparents "not less than they have in the past" which in the past (that is before 7 November 2006) had been at least once in each fortnight but which had reduced over time between 7 November 2006 and 26 March 2007; Carmody J's orders did not provide a set regime for the children to spend time with their extended family; the mother had not provided drug test results; the maternal aunt had information that the mother may have been using illicit drugs; and other concerns relating to the children's welfare as set out in the maternal aunt's affidavit.

19Ms Hargraves said also that the shared care regime the maternal aunt sought (if I am satisfied the mother now has secure accommodation) reflects the recommendations of Mr H in his family report dated 18 January 2007 (see at pars 101 and 102), prepared pursuant to and therefore after Carmody J's orders made on 7 November 2006.

20Mr H's recommendations, however, had not been for week about shared care as the maternal aunt now seeks from Wednesday to Wednesday but that the children live with the mother from Thursday after school until Sunday evening in each week and during all but one week of each school holidays and that they live with the maternal aunt from each Sunday evening until each Thursday after school and for one week in each school holiday period.

21Mr H had further recommended that the mother and the maternal aunt be jointly responsible for the children's care, welfare and development; that the children continue to attend the N School; the mother and the maternal aunt be restrained from enrolling them in any other school without the written permission of both; that neither the mother nor the maternal aunt should relocate the children beyond 20 kilometres from N; that there be further assessment to include the father and any persons residing with him; that the father and the mother continue to undergo random drug testing; and that until further assessment the children spend time with the father only if supervised by another adult family member, although he could also communicate with the children by telephone.

22Mr H's recommendations were not expressed as recommendations for interim orders, although I note his recommendation relating to further assessment involving the father and any persons residing with him.  Thus, I presume Mr H's recommendations as they relate to the children's living with the mother and the maternal aunt were recommendations for final orders, but nonetheless to be considered in the context of the hearing process, that is, after cross examination and subject to findings of fact by the trial Judge in relation to the many allegations referred to in his report, as yet untested.

Relevant principles

23In Goode & Goode (2006) FLC 93-286 the Full Court said in relation to interim hearings concerning children since the introduction of the provisions concerning children in the Family Law Act 1975 (the Act) on 1 July 2006 that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is "significantly curtailed"; where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible; the Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future (par 68); bearing in mind always that the Court must regard the best interests of the child as paramount in deciding what interim parenting orders to make (par 69). 

24The Full Court said it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable (par 72).

25Further, the Full Court said this means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child (also par 72).

26Their Honours added, however, that is not to say that stability derived from a well settled arrangement may not ultimately be what the Court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A) (par 73); that because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief; and that so too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts (par 74).

27Their Honours went on to say that in making interim decisions the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child, observing nonetheless that the legislative pathway must be followed (par 81); and that in an interim case that would involve the steps their Honours then set out (par 82), which steps I will not set out in detail at this part of the reasons, but which are referred to in the subheadings below.

28Thus, it is necessary that I turn immediately to those steps.

The steps

29I would observe at the outset of this exercise that this particular case is one in which there are serious "conflicting facts" (Goode, par 81), that is, serious conflict between the mother and the maternal aunt in their allegations against each other which can only be resolved in the final phase of the Division 12A hearing; and that unfortunately, seemingly as the result of the maternal aunt commencing these proceedings, and more recently since the maternal aunt filed her current interim application, the mother has developed animosity towards the maternal aunt alleging that her motives are falsely stated and falsely based, and also animosity towards the maternal grandparents who, at least as evidenced to date, support the maternal aunt's case.

The parties’ competing proposals

30The mother's and the maternal aunt's competing proposals for interim orders are already referred to above.

31The maternal aunt's application for final orders however is that the children live with the maternal aunt; that she have sole parental responsibility for the children; and that the mother and the father spend time with and communicate with the children at all times as agreed between themselves and the maternal aunt.  I should add that at the hearing on 27 April 2007 Ms Hargraves said that the maternal aunt's application for final orders may as yet be amended.

32The mother's response to the maternal aunt's application for final orders seeks that the children live with her; that she and the father have equal shared parental responsibility for the children; several orders relating to the father and the children spending time with and communicating with him (which for present purposes I need not set out); and in relation to the children spending time with the members of their extended family, including the maternal aunt, that occur at such times as agreed by the mother but "more or less as the children have done in the past".

The issues in dispute in the interim hearing

33Principally, the issues raised by the maternal aunt are whether the mother has the capacity to parent the children; whether the children are safe from harm in the mother's care; whether the mother currently may be using illicit drugs (which it is common ground she has done in the past) and/or associating with illicit drug users; the need for the son to have special guidance because of behavioural problems; the need for the children to have stability in their lives; and several other major concerns set out in her affidavit.

34The issues from the mother's point of view are her capacity to provide the children stable accommodation (which, she says she can now do); her capacity to parent the children in a drug free environment (which, she says, she has, having graduated from a lengthy methadone program with deregistration from the program on 30 June 2006: see annexure TCE3 to her affidavit filed on 6 November 2006); and the maternal aunt's alleged deviously contrived and dishonestly based case against the mother.

35Mr H's report (pars 17-24) provides also a helpful analysis of the issues in dispute.

36Ms Hargraves, for the maternal aunt, referred to the mother's association with a person named L, who may be her current partner; his potential illicit drug use; violence and drug use and drug involvement between the mother and the father (Mr H's report, pars 48 and 49); the son's description to Mr H of life with both of his parents as unhappy and being frightened (Mr H's report, par 59); the maternal aunt's strong attachment to the children as the result of her involvement in their lives over the years because of the parents' illicit drug use and mental health problems (Mr H's report, par 34); the mother's concession to Mr H that the maternal aunt had provided significant support to her (Mr H's report, par 47); that the mother, according to Mr H, does not appear to have the awareness and skills to challenge the son and give him necessary guidance and direction (Mr H's report, par 55); his view that the mother's capacity to understand the protective needs of the children is limited (Mr H's report, par 56); and several other matters including Mr H's conclusion that the maternal aunt and her husband appear motivated by a genuine desire to help the children, rather than their own emotional need for the children to live with them (Mr H's report, par 83), the maternal aunt and her husband having three children of their own.

37Ms McDiarmid, for the mother, referred to parts of the mother's evidence, and invited a comparison of Mr H's report, 18 January 2007, with the maternal aunt's current affidavit filed on 2 April 2007, as showing the maternal aunt to be duplicitous, and "cleverly so", seeking to malign and undermine the mother.

38Ms McDiarmid pointed to the circumstance that much of the evidence relied on by the maternal aunt against the mother related to events which had occurred long ago, and pointed to the lack of evidence that currently the children would suffer harm in the mother's care.  She pointed to several paragraphs of the maternal aunt's affidavit which, she said, the mother "bitterly contested", and in any event amounted to untested allegations; and raised that the maternal aunt's case against the mother was based on "imaginations", and "expressed concerns" very largely based on hearsay evidence which "do not even reach the level of allegations" rather than amounting to genuine issues.

39Ms McDiarmid emphasised that the mother's drug addiction was nine and a half years ago and that she had successfully completed her methadone program (referred to above).

40Ms McDiarmid referred to the circumstance that the mother has Hepatitis C (referred to also by the maternal aunt) and in the future is to undergo a course of Interferon but not until the proceedings are finalised, according to the mother's present plans.

41Ms McDiarmid said that Mr H's recommendations are based upon untested allegations and allegedly erroneous information provided to him by the maternal aunt, much of which is disputed and yet to be the subject of cross examination.

42Mr Shera said, as to the issues, that the maternal aunt’s allegations set out in Mr H's report are as yet untested.

The agreed or uncontested relevant facts

43There are few agreed facts in relation to the matters in issue other than what may be described as the "formal" facts referred to at the beginning of these reasons.

Equal shared parental responsibility

44The presumption in s 61DA does not apply, as it relates to a child's parents, whereas the immediate contest is between the mother and the maternal aunt, as to the incidence of parental responsibility on the interim basis.

45Nonetheless, in my view, the history of the case indicates that the preferable course at this interim stage would be to adopt Mr H's recommendation that the mother and the maternal aunt be jointly responsible for the children's care, welfare and development, which I will reformulate into the language of the current legislation, so that until further order the mother and the maternal aunt will have equal shared parental responsibility (as defined in s 61B of the Act) for the children.

46In my view, the best interests of the children at this stage warrants the involvement of both the mother and the maternal aunt relating to decisions concerning the children's education, care and welfare.  I note, however, having regard to s 61DB, that the allocation of parental responsibility in the interim order must be disregarded when a final parenting order is to be made.

Section 65DAA(1) and (2): the requirement that I "consider" an equal time order and if that not be made a substantial and significant time order – the s 60CC factors as to the children’s best interests and the s 65DAA(5) factors as to reasonable practicability

47Strictly speaking, this requirement does not arise because the present contest is not between the children's parents but a parent and an aunt, whereas s 65DAA(1) and (2) are directed to parenting orders concerning children's parents, defined in s 4 to include an adoptive parent (which the maternal aunt is not).

48However, as I am obliged in any event to make an order in the children's best interests, it is necessary in any event that I consider whether an equal time order as between the mother and the maternal aunt, or a substantial and significant time order (as defined in s 65DAA(3)) between the mother and the maternal aunt, would be in the children's best interests.  (See Goode, par 82 (k)).

49I must, therefore, consider the children's best interests, having regard to the factors in s 60CC; and reasonable practicability, having regard to the factors in s 65DAA(5).

50However, as the Full Court observed in Goode (above) this is necessarily an abridged process, where the inquiry is “significantly curtailed”, there being no ability in these interim proceedings to test controversial evidence.

51I will, therefore, make only brief observations as to the s 60CC factors.

52As to the primary considerations, Ms McDiarmid pointed to the circumstance that the mother has been a "stay at home" mother for the whole of the children's lives, and, as observed by Mr H, the son has a very strong attachment to his mother and the daughter sees her family as primarily her mother, the son and her father (Mr H's report, pars 64 and 74).

53There is, thus, benefit to the children of having a meaningful relationship with the mother.

54I note that s 60CC(2)(a) does not invite a consideration of the benefit to the children of having a meaningful relationship with other persons, in this case the maternal aunt, however certain of the secondary considerations raise such relationships for consideration as relevant factors.

55The maternal aunt's case is based in part on a need to protect the children from harm in the mother's care (s 60CC(2)(b)), however, it is curious that her application (assuming the mother has secure accommodation, which on the evidence I find she now has) is for week about care.  To my mind, it may be illogical to suggest that the children may come to harm if they should live with the mother full time (as should be occurring by Carmody J's existing interim order) but not if they spend half that time in the mother's care.

56As to the children's views, Mr H observed that the son is confused and the daughter too young to express meaningful views (Mr H's report, pars 64 and 76).

57The children appear to have appropriate relationships with the maternal aunt and the members of the mother's extended family.  There is evidence in relation to the maternal aunt that the sonhas "turned to her" and "confided in her" seeking emotional release in her and relief, however, this is as yet untested.

58The children have had so many changes in their lives since the first order was made on 2 October 2006 that the consideration of the likely effect on them of change at this stage would be neither meaningful nor reliable.  They have lived with the maternal aunt from about early October 2006 to about mid November 2006, with the mother from about mid November 2006 until late March 2007; and with the maternal aunt for the last month.  Before the order made on 2 October 2006, the children had always lived with the mother but, it appears, spent a reasonable amount of time also with the maternal aunt.

59The mother's ongoing capacity to parent the children is attacked by the maternal aunt, but the attack is resisted by the mother, Ms McDiarmid describing the maternal aunt's two interim applications, October 2006 and April 2007, as both brought at a time the mother was vulnerable.

60I have referred already to the "things that have happened" since the children's parents separated.

61It does not appear to me that sensible observation can be made at this stage in relation to the remaining s 60CC factors.

62As to the factors in s 65DAA(5), the mother and the maternal aunt and the children all live in the N area.  It is not possible, having regard to the conflicting facts in the case, to make rational observation as to the other factors raised in s 65DAA(5) concerning the reasonable practicability of either an equal time or a substantial and significant time order as between the mother and the maternal aunt.

"Consider"

63In Goode (above), at par 64, the Full Court said that the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and s 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order (for equal time) if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met; and that the same considerations apply to s 65DAA(2), that is, the need to consider positively an order under that provision (for substantial and significant time).

64However, as I have pointed out, s 65DAA is concerned with parenting orders as between parents.  Thus, in this particular case, I am entitled to consider more globally, as between the mother and the maternal aunt, the order which would best effect the children's best interests as the paramount consideration.

Analysis and conclusion

65Having regard to the evidence, all of the relevant statutory factors, the submissions, the history of the matter, all of the matters to which I have referred above, the non contentious facts, and taking into account also that in these interim proceedings I am not to be “drawn into” the contentious issues where findings are not possible, in my view the children's best interests would be served by making the equal shared parental responsibility order which the maternal aunt seeks, but otherwise by the continuance of the interim orders made by Carmody J on 7 November 2007, with one exception to which I will refer, so that the maternal aunt's application otherwise will be dismissed.

66In particular, having regard to the children's close attachment to the mother, as observed by Mr H, and being satisfied that there is no reliable evidence of any real and present danger to the children in the mother's care, the maternal aunt’s untested concerns being largely based on hearsay evidence, and taking into account the circumstance that primarily the mother has been the children's carer for most of their lives, despite her past drug addiction and rehabilitation process, there does not seem to me to be any good reason to think that the children's best interests would be served by a week about arrangement with Wednesday changeover as proposed by the maternal aunt; but rather that the children's stability, which I consider to be an important factor in their lives, would best be achieved by their living with the mother as Carmody J ordered on the interim basis on 7 November 2007.

67I have taken into account the maternal aunt's evidence that in the period between 26 March 2007 and 26 April 2007 when, through no fault of her own, the mother found herself without her own accommodation, she may have lived with people involved in illicit drugs, however, the mother now has her own secure accommodation.  There is an allegation by the maternal aunt that a person named L, who may be the mother's current partner, may be involved in illicit drugs, however this is yet to be tested.  If this circumstance ultimately is proved to be true, that may go against the mother at the final hearing, however, at present it is not proved.

68It seems to me that if the maternal aunt had genuine fear for the children's safety or welfare in the mother's care, it may be that she would not have couched her application as one for week about shared care, once the mother should obtain secure accommodation, because as I have said, it may be illogical to suggest that the children would be at risk if they should live with the mother full time but not if they should spend half of the time in the mother's care.  I do not for a minute suggest that the maternal aunt's application overall is not genuinely based; however her concerns are yet to be tested at the final hearing. 

69I have no doubt that the maternal aunt will continue to keep a watchful eye on the children, which will be facilitated by the exception to Carmody J's orders which I have foreshadowed; and I propose also to order that the maternal aunt have liberty to apply on short notice, by arrangement with the Associate, if there should be any event or events between now and the continuation of the final hearing which, in the maternal aunt's opinion, put the children at risk.

70I am conscious also of the mother's evidence (par 11 of her affidavit, last sentence) that she accepts that from time to time it is in the children's best interests to go and stay with the maternal aunt's family, saying, however, that she is capable of identifying those times now as she has in the past.

71The exception to which I have referred in relation to Carmody J's orders is that in par 5 of those orders the expression that the children spend time with the members of their extended family at such times as may be agreed between the parties “but not less than they have in the past” is an expression which I accept now needs definition.

72I will hear now from the parties as to what each says is the time spent in the past.

RECORDED : NOT TRANSCRIBED  

73There is dispute about this, and I really have to do the best I can for the interim purpose, but what I am going to formulate does not bind the parties at the final hearing as to what, in fact, occurred in the past but it is the best I can do at the moment.

74Very well, these will be the orders:

Until further order:

(1)The mother and the maternal aunt have equal shared parental responsibility for the children (their names and ages will be referred to).

(2)In relation to paragraph 5 of the orders of the Honourable Justice Carmody made on 7 November 2006 the expression "but not less than they have in the past" be read and construed as meaning time with the maternal aunt and other members of the extended family, if present:

a)during school terms only, from after school on Tuesdays until before school on Wednesdays;

b)once in each weekend for up to 6 hours, but not overnight unless the mother should agree;

c)during school holidays for up to one week,

provided that if on the arranged time for contact on a particular weekend the son is attending Cadets, he not attend time with the maternal aunt, on the basis that either the mother or the maternal aunt take him to and/or collect him from that activity.

(3)The maternal aunt has liberty to apply, on short notice, by arrangement with the Associate, if between now and the determination of the Division 12A hearing there should be any event or events which, in her opinion, put the children at risk in the mother's care.

75I have been considering the time, this was discussed - the duration of the trial - this was discussed last Friday.  It seems to me there will be somewhere between six and nine witnesses, possibly plus some subpoenaed witnesses, and the other day people said Mr H's cross examination will be at least half a day.  I am satisfied the evidence will go at least three days.  Fortunately the dates 21 and 22 June 2007 are also available, so I am going to vary the order which I made on 2 April 2007 as follows:  The directions made on 2 April 2007 are varied so that the Division 12A hearing proceed at 10 am on 19, 20, 21 and 22 June 2007.

76That is the only variation.

77I will make a further order which in the circumstances I consider to be appropriate:

(4)The independent children's lawyer has liberty to apply, on short notice, by arrangement with the Associate, if between now and the determination of the Division 12A hearing the mother fails to attend random drug tests or returns any adverse drug test result.

RECORDED : NOT TRANSCRIBED

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I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable O'Reilly J

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LISTER & EDEN