Walton & Walton

This matter concerned parenting arrangements for two children, brought before Judge Monahan. The dispute involved the father and mother, who had initially agreed to interim terms for the children to live with the mother and spend unsupervised overnight time with the father. However, the Independent Children’s Lawyer (ICL) opposed these terms, raising concerns about family violence and seeking orders for supervised time with the father and drug testing for both parents. Crucially, both parties subsequently filed Notices of Discontinuance just prior to the judgment being released.

The court was required to determine several issues, including whether the father posed an unacceptable risk to the children and, if so, whether their time with him should be supervised. It also needed to consider whether the father should continue drug hair testing and the mother drug urine and hair testing. A significant issue was the impact on the proceedings arising from both parties filing Notices of Discontinuance.

In its reasoning, the court noted that while it had reserved its decision following an interim hearing, the subsequent filing of Notices of Discontinuance by both the father and mother meant it could not pronounce orders reflecting its findings. Nevertheless, the court stated its findings on the evidence presented: the father did not pose an unacceptable risk to the children, and it was in the children's best interests to spend time with the father as proposed by the parents. The court also found the father should continue drug hair testing, but was not satisfied of the need for the mother to continue drug testing. The court had intended to order the intervention of the Department of Communities and Justice due to risk factors raised by the ICL, but this would not be made given the discontinuances.

The court ordered that the matter be adjourned for a mention on costs before a Registrar. Subject to the issue of costs, and noting the filed Notices of Discontinuance, the ICL was to be discharged, and all extant applications withdrawn and dismissed. The ICL was granted liberty to approach the court regarding costs or a Minute of Consent Order resolving costs.