MCGIVERN & HAMLIN - [2020] FCCA 976

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCGIVERN & HAMLIN

[2020] FCCA 976

Catchwords:
FAMILY LAW – Interim parenting – where following separation, the child lived with the mother and spent limited time with the father – where CDT testing is required – where consideration of the best interest of the child, with particular focus on s.60CC(2)(a) of the Family Law Act 1975 (Cth) – orders made.

Legislation:

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

Cases cited:

Banks &Banks [2015] FamCAFC 36

Goode & Goode [2006] FamCA 1346

Marvel & Marvel [2010] FamCA 240

SS & AH [2010] FamCAFC 13

Applicant:

MR MCGIVERN

Respondent:

MS HAMLIN

File Number:

PAC 848 of 2020

Judgment of:

Judge Humphreys

Hearing date:

24 April 2020

Date of Last Submission:

24 April 2020

Delivered at:

Parramatta

Delivered on:

1 May 2020

REPRESENTATION

Solicitor for the Applicant:

Ms Rahhal

Counsel for the Respondent:

Ms Canntrall

Solicitor for the Independent Children's Lawyer:

Ms Rutkowska

ORDERS

That X (“X”), born in 2017, live with Ms Hamlin (“the mother”).
That X spend time with Mr McGivern (“the father”) from 10:00am till 2:00pm for a period of eight weeks each Saturday from the date of these Orders. The location of that time is to be within a one hour’s drive of the mother’s home, with the father to advise the mother of the location. The mother to deliver X to that location by 10:00am. During the period of time spent with the father, X is to have a midday nap. The father is to return X to the mother’s home at the conclusion of this time and in any event by 3:00pm.
During the initial eight week period, the father is restrained by injunction from consuming alcohol for a period of 24 hours prior to and during any time that X spends with him, pursuant to these Orders.
During the initial eight week period, the father is to undertake one random CDT test, at his expense, within 48 hours of being advised by the Independent Children’s Lawyer (“ICL”) of the requirement to undertake that test. The father is to provide the results of that test to the ICL and the mother’s legal representatives within 48 hours of receipt. For the purposes of this order, the father is to provide to the ICL his current email address to enable the request to be made. The results of any CDT test is to be provided to the Court by the father’s legal representatives.
That the mother keep the father informed of X’s health issues, as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the case of an emergency (with the mother to inform the father as soon as reasonably practicable).
That the mother and father be restrained from making any derogatory comments about the other parent or any member of their family in the presence of and/or the hearing of X.
The matter is relisted to appear before Judge Humphreys at 2:00pm…

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 MCGIVERN & HAMLIN

Details

AGLC: McGivern and Hamlin [2020] FCCA 976
Case: [2020] FCCA 976
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Humphreys considered interim parenting orders concerning a child, X, born in 2017. Following the separation of the parents, Ms Hamlin (the mother) and Mr McGivern (the father), X had been living with the mother and spending limited time with the father. The proceedings involved a dispute regarding the terms of interim parenting arrangements, including the requirement for CDT testing.

The court was required to determine the best interests of the child, X, in accordance with section 60CC(2)(a) of the *Family Law Act 1975* (Cth). This involved assessing various factors relevant to X's welfare and development in the context of the proposed interim parenting arrangements. The court also had to consider the implications of the father's alcohol consumption and the need for drug testing as part of the interim orders.

Judge Humphreys reasoned that it was in X's best interests for the child to live with the mother. The court made orders for X to spend supervised time with the father for a limited period each Saturday over eight weeks, with specific conditions regarding the location and duration of this time, including a requirement for X to have a midday nap. Crucially, the father was restrained from consuming alcohol for 24 hours prior to and during these periods of time with X. Furthermore, the father was ordered to undertake one random CDT test at his expense within 48 hours of being notified by the Independent Children’s Lawyer, with the results to be provided to the ICL and the mother's legal representatives. The mother was also ordered to keep the father informed of X's health issues, and both parents were restrained from making derogatory comments about each other in X's presence. The matter was relisted for further hearing.

Orders

Orders of the court

That X (“X”), born in 2017, live with Ms Hamlin (“the mother”).

That X spend time with Mr McGivern (“the father”) from 10:00am till 2:00pm for a period of eight weeks each Saturday from the date of these Orders. The location of that time is to be within a one hour’s drive of the mother’s home, with the father to advise the mother of the location. The mother to deliver X to that location by 10:00am. During the period of time spent with the father, X is to have a midday nap. The father is to return X to the mother’s home at the conclusion of this time and in any event by 3:00pm.

During the initial eight week period, the father is restrained by injunction from consuming alcohol for a period of 24 hours prior to and during any time that X spends with him, pursuant to these Orders.

During the initial eight week period, the father is to undertake one random CDT test, at his expense, within 48 hours of being advised by the Independent Children’s Lawyer (“ICL”) of the requirement to undertake that test. The father is to provide the results of that test to the ICL and the mother’s legal representatives within 48 hours of receipt. For the purposes of this order, the father is to provide to the ICL his current email address to enable the request to be made. The results of any CDT test is to be provided to the Court by the father’s legal representatives.

That the mother keep the father informed of X’s health issues, as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the case of an emergency (with the mother to inform the father as soon as reasonably practicable).

That the mother and father be restrained from making any derogatory comments about the other parent or any member of their family in the presence of and/or the hearing of X.

The matter is relisted to appear before Judge Humphreys at 2:00pm on Friday 26 June 2020 for further hearing.

Grant liberty to restore on 2 days’ notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.