BAINE & PAGNI - [2019] FCCA 3412

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAINE & PAGNI

[2019] FCCA 3412

Catchwords:
FAMILY LAW – Interim parenting hearing-best interests of child-orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant:

MR BAINE

Respondent:

MS PAGNI

File Number:

WOC 680 of 2018

Judgment of:

Judge Newbrun

Hearing date:

21 November 2019

Date of Last Submission:

21 November 2019

Delivered at:

Parramatta

Delivered on:

10 December 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Hartley

Solicitors for the Respondent:

Ms Shelly

Solicitors for the Independent Children's Lawyer:

Mr Naidovski

ORDERS PENDING FURTHER ORDER

That the mother have sole parental responsibility for the child X born … 2014.
That the child live with the mother.
That the child spends no time with the father.
That within 42 days the Father is to undertake a hair follicle test and for the purpose of this test the Father:
(a)is to do all things and sign all documents necessary to make and attend at an appointment and submit to the supervised collection of a sample of his head and/or body hair for hair drug testing purposes (“the drug test”);
(b)is hereby restrained from bleaching or dyeing his hair prior to the time of collection of hair for the drug test and he shall comply with all recommendations of the employees during the drug test;
(c)that the hair sample collected from the Respondent Father be sufficient to cover at least three (3) months prior to sampling;
(d)That the drug test to screen for drugs of abuse including:
(i) Amphetamines (AMP)
(ii)Methamphetamines (mAMP)
(iii)Cocaine (COC)
(iv)Marijuana (THC)
(v)Phencyclidine (PCP)
(vi)Ecstasy (MDMA) or (Methylenedioxymethamphetamine)
(e)That the Father forward to the solicitors for the Mother and ICL, a copy of the test result within forty-eight (48) hours of the Father receiving same.
That pending further order, the Father shall, within 24 hours of a written request by the Mother’s solicitor, attend to provide a sample for forensic urinalysis testing with respect to the presence of drugs of abuse as set out in Order 4 (d)(i) to (vi) inclusive, and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the Mother and her solicitor within 48 hours of its receipt.
For the purposes of facilitating Order 5 above, it is noted that:
(a)the Mother’s solicitor may not request more than one test per calendar month;
(b)The Father shall be responsible for all costs associated with such testing.
In the event that the testing report, as per Order 4 and/or Order 5, discloses a reportable quantity of any of the above substances, the Father shall:
(a)then continue to attend and provide a sample and cause such sample to be tested…

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 BAINE & PAGNI

Details

AGLC: BAINE & PAGNI [2019] FCCA 3412
Case: [2019] FCCA 3412
Decision Date: 10 December 2019

CaseChat Overview and Summary

In *Baine & Pagni*, Newbrun J of the Federal Circuit and Family Court of Australia considered an application for interim parenting orders. The dispute concerned the best interests of a child, with the court tasked with determining appropriate arrangements pending a final hearing.

The central legal issue before the court was how to best promote the child's welfare and best interests in the interim period. This involved assessing the competing proposals of the parties and considering the factors relevant to determining the child's best interests under the *Family Law Act 1975* (Cth).

Newbrun J applied the principles of the paramountcy of the child's best interests, considering factors such as the child's relationship with each parent, the child's physical, psychological and emotional wellbeing, and the capacity of each parent to provide for the child's needs. The court carefully weighed the evidence presented by both parties, focusing on the immediate needs and safety of the child. The judge's reasoning emphasised the need for stability and continuity in the child's life during the interim period, while also acknowledging the importance of maintaining a meaningful relationship with both parents where it was safe and appropriate to do so.

The court made interim orders that it considered to be in the best interests of the child, outlining the specific arrangements for the child's residence, contact, and other matters.

Orders