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Blevins & Ball

Blevins & Ball

Case [2022] FedCFamC2F 141 15 February 2022

Best Interests of the Child

Meaningful Relationship

Protection from Harm

Interim Parenting Orders

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blevins & Ball [2022] FedCFamC2F 141

File number(s): PAC 4292 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 15 February 2022

Catchwords: FAMILY LAW – interim parenting - mother seeking order to relocate child’s residence - proposed Order not made - mother seeking to vary prior interim Orders relating to child spending time with the father - proposed Orders not made - best interests of child

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B

Cases cited:
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Salah & Salah [2016] FamCAFC 100
Cimorelli & Wenlack [2020] FamCAFC 58
Banks & Banks [2015] FamCAFC 36

Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 105

Date of last submission/s: 1 December 2021

Date of hearing: 1 December 2021

Place: Parramatta

Solicitor for the Applicant: Ms Kermode

Solicitor for the Respondent: Mr Havenstein

Solicitor for the Independent Children’s Lawyer Ms Moran
ORDERS

PAC 4292 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BLEVINS

Applicant

AND:
MS BALL

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

15 FEBRUARY 2022

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the Mother’s proposed Minute of Orders sought in her Case Outline filed 30 November 2021 be dismissed.
2.Without admission, the Father is restrained from physically chastising the child.
3.Without admission, the Father is restrained from force-feeding the child.
4.Without admission, the Father shall take all reasonable steps to ensure that the paternal grandmother does not verbally abuse the child or any other child in his household, and shall take all reasonable steps to ensure that the paternal grandmother is not left alone with the child.
5.Pursuant to section 68B of the Family Law Act 1975, the Father shall be restrained from coming within 100 m of the residential address of the maternal grandparents and Ms C.
6.That the Father shall undertake a hair follicle alcohol test and for the purposes of this order the following shall apply:
(a)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)The Father shall, within 7 days of these orders, make an appointment at an Australian Workplace Drug Testing Services clinic AWDTS by telephoning 1300 378 483 for the purposes of providing a hair sample for hair drug and alcohol testing purposes;
(c)The Father shall provide such hair samples as directed by AWDTS for the purposes of analysis of alcohol EtG;
(d)The Father is restrained from taking any steps to interfere with the provision of any hair samples, or interfering with the test results; and
(e)The Father shall do all things necessary and sign all necessary…

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 Blevins & Ball

Details

AGLC: Blevins & Ball [2022] FedCFamC2F 141
Case: [2022] FedCFamC2F 141
Decision Date

CaseChat Overview and Summary

Blevins & Ball was a case heard in the Federal Circuit and Family Court of Australia. The applicant, Mr Blevins, and the respondent, Ms Ball, were the parents of a young child, X. The case centred around interim parenting orders and the relocation of the child's residence. The mother sought various interim orders, including suspending the child's time with the father until he underwent an alcohol test, and the father sought to dismiss the mother's application. The Independent Children's Lawyer did not support the mother's proposed order that the father spend no time with the child until he underwent a hair follicle alcohol test. Instead, the lawyer supported an order that the father carry out a hair follicle test presently and another test in three months' time.

The court considered the relevant legal principles and precedents, including the need to protect the child from harm and the importance of maintaining a meaningful relationship with both parents. The court evaluated the evidence and allegations presented by both parties and found that there was no unacceptable risk that the child would be exposed to family violence if continuing to spend unsupervised time with the father. The court also found that the need to protect the child was probably neutral as to relocation.

The court further considered the additional factors under section 60CC of the Family Law Act 1975, such as the nature of the child's relationship with each parent and the capacity of each parent to provide for the child's needs. The court found that the advantages of relocation proposed by the mother were outweighed by the disadvantages, particularly the real risk that the child's meaningful relationship with the father would be detrimentally affected if relocation was permitted.

Based on the evaluation of the evidence and relevant legal principles, the court dismissed the mother's proposed interim orders and made the following interim parenting orders: restraining the father from physically chastising the child and force-feeding the child; requiring the father to take reasonable steps to ensure that the paternal grandmother does not verbally abuse the child or any other child in his household and is not left alone with the child; restraining the father from coming within 100 m of the residential address of the maternal grandparents and Ms C; ordering the father to undertake a hair follicle alcohol test; and directing the parties and the child to attend a family consultant for the preparation of a family report.

In summary, the court found that it would not be in the best interests of the child to permit the mother to relocate the child's residence to Suburb J at this interim stage, and that the child should continue to spend time with the father pursuant to the Court's Orders of 1 April 2021. The court also made interim protective orders to safeguard the child's well-being and ordered the parties to attend a family consultant for the preparation of a family report.

Orders