Lister and Eden

This case concerned an application by the maternal aunt, Ms Lister, for interim parenting orders concerning her niece and nephew, a son born in June 1993 and a daughter born in September 2000. The children's parents, Mrs Eden (the mother) and Mr Eden (the father), had separated in approximately September 2006. The dispute before the court involved competing proposals for the children's living arrangements and parental responsibility, with the maternal aunt seeking significant time with the children and the mother seeking for the children to live with her.

The primary legal issues before the court were whether the mother had the capacity to parent the children, whether the children were safe in her care, and whether she was currently using illicit drugs or associating with drug users. The court was required to determine the children's best interests in the interim, considering the relevant factors under the *Family Law Act 1975* (Cth), including the need for stability, the children's relationships with each parent, and the reasonable practicability of proposed arrangements. The court also had to consider the legislative intent favouring substantial involvement of both parents, subject to the protection of children from harm.

O'Reilly J applied the principles for interim hearings as outlined in *Goode & Goode*, emphasising that the scope of inquiry is curtailed and the court should not make findings of fact on disputed issues. The court found that while the maternal aunt had raised concerns about the mother's capacity and drug use, these were largely untested allegations based on hearsay evidence. The court noted the children's strong attachment to the mother and her successful rehabilitation from past drug addiction. Consequently, the court ordered that the mother and maternal aunt share equal parental responsibility for the children. The court also clarified and defined the terms of the children's time with their extended family, as previously ordered by Justice Carmody, and made specific provisions for drug testing and counselling.

The court dismissed the maternal aunt's application for further interim orders, except for the orders relating to equal shared parental responsibility and the definition of time with extended family. The court also granted liberty to apply to both the maternal aunt and the independent children's lawyer in specific circumstances concerning the children's safety and the mother's drug testing. The hearing dates for the final Division 12A hearing were also confirmed.