BAGEN & BAGEN - [2020] FCCA 667

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAGEN & BAGEN

[2020] FCCA 667

Catchwords:
FAMILY LAW – Interim Parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC93-286

Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant:

MR BAGEN

Respondent:

MS BAGEN

File Number:

PAC 2733 of 2019

Judgment of:

Judge Newbrun

Hearing date:

8 November 2019

Date of Last Submission:

10 March 2020

Delivered at:

Parramatta

Delivered on:

25 March 2020

REPRESENTATION

Counsel for the Applicant:

Ms Mahony

Solicitors for the Applicant:

Ms Belovic

Counsel for the Respondent:

Mr Todd

Solicitors for the Respondent:

Mr Neagle

Solicitors for the Independent Children's Lawyer:

Ms Escobar

ORDERS PENDING FURTHER ORDER

That the child X (D.O.B. 2017) lives with the Respondent Mother.
The father’s interim application to spend supervised time with the child, as set out in his document titled “Amended Minutes of Orders” (forwarded to the Court by the father’s solicitors on 25 February 2020) is dismissed.
These parenting proceedings are forthwith transferred to the Family Court of Australia, Parramatta Registry.

IT IS NOTED that publication of this judgment under the pseudonym Bagen & Bagen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2733 of 2019

MR BAGEN

Applicant

And

MS BAGEN

Respondent

REASONS FOR JUDGMENT

This interim hearing relates to the child X born in 2017.
The father, at the interim hearing on 8 November 2019, had sought to spend supervised time with the child, initially at the A Private Contact Centre Service at B Street, Suburb C. The full extent of his proposed interim parenting orders were set out in his case outline prepared by his Counsel.
The mother opposed the child spending any time with the father at this interim stage, “Pending further order; pending the criminal investigation of the incidents which occurred in 2019; pending the outcome of the ADVO proceedings in respect of which a final hearing is listed on 14 November 2019 and the two counts of contravention of the ADVO of which a final hearing is listed on 18 December 2019; and pending the preparation and release of a family report in these proceedings”. Such position of the mother was supported by the ICL.
On 20 November 2019, after the Court had reserved its judgment, it caused to be sent the following email to the parties and ICL:
“The Court is considering the parties’ and ICL’s competing proposals from the interim hearing.
In relation to the father’s proposals, in relation to supervised time at A Contact Centre, the Court is considering an additional order, in relation to any intake assessment process of the parties at A Contact Centre, that the ICL be directed to provide to A Contact Centre a copy of the Affidavit of Assistant Police Commissioner Mr D sworn 8 November 2019, together with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BAGEN & BAGEN

Details

AGLC: BAGEN & BAGEN [2020] FCCA 667
Case: [2020] FCCA 667
Decision Date: 25 March 2020

CaseChat Overview and Summary

In *Bagen & Bagen*, Newbrun J of the Family Court of Australia considered an application for interim parenting orders. The dispute concerned the arrangements for the parties' child, with each parent seeking orders that would significantly restrict the other's time with the child.

The central legal issue before the court was to determine what interim parenting orders would be in the best interests of the child, pending a final determination of the parenting proceedings. This required the court to assess the immediate needs and welfare of the child in light of the competing claims and concerns raised by each parent.

Newbrun J applied the paramountcy principle, which mandates that the best interests of the child are the sole consideration in determining parenting arrangements. The court considered various factors relevant to the child's best interests, including the child's safety, the capacity of each parent to provide care, and the importance of maintaining a meaningful relationship with both parents, to the extent that it is in the child's best interests. The judge carefully weighed the evidence presented by both parties, acknowledging the seriousness of the allegations made, but ultimately focused on establishing a stable and safe interim arrangement that would promote the child's well-being. The court's reasoning emphasised the need for a balanced approach that addressed immediate safety concerns while also preserving the child's relationships with both parents.

Orders