ROMILLY & KLIMA - [2019] FCCA 3789

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROMILLY & KLIMA

[2019] FCCA 3789

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 67U, 67V, 68B.

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCA 240

Banks & Banks [2015] FamCAFC 36

Applicant:

MS ROMILLY

Respondent:

MR KLIMA

File Number:

PAC 6211 of 2019

Judgment of:

Judge Newbrun

Hearing date:

19 December 2019

Date of Last Submission:

19 December 2019

Delivered at:

Parramatta

Delivered on:

24 December 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Gardiner

Solicitors for the Respondent:

Ms Tomisetti

ORDERS PENDING FURTHER ORDER

Live With

That until further Order, [X] shall live with the Father.

Spend Time

That [X] spend time with the Mother as follows:

2.1.Each Saturday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.2.Each Tuesday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.3.Each Thursday for a period of 3 hours at a time agreed between the parties, and failing agreement between 1pm and 4pm.
2.4.On Christmas Day 2019 for 3 hours at a time agreed between the parties, and failing agreement between 8am and 11am.

That the time [X] spends with the Mother must be supervised by the Paternal Grandmother.
That the solicitors for the Father shall provide to the Court an undertaking by the Paternal Grandmother prior to the first occasion of supervised time.
That the Father facilitate FaceTime and/or telephone communication between the Mother and [X] each day between 6pm and 7pm.

Drug and Alcohol Testing

That until further order, the Mother submit to urinalysis and hair follicle tests for the detection of alcohol and drugs randomly, not being more often than twice per month for urinalysis or once in every three months for hair follicle tests.
For the purpose of hair follicle tests:

7.1.The Mother shall not cut her hair shorter than 3 centimetres until the date specified in the preceding paragraph of this Order.
7.2.The tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
7.3.That the Mother provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Father’s lawyers and to the Mother’s lawyers immediately upon its completion.
7.4.Each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.
7.5.The Mother pay the cost of such tests (and the referral).
7.6.In the event of a positive test or any breach of this Order by the Mother, the Mother’s time with [X] under this order is suspended until further order, each party in that event having liberty to apply…

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 ROMILLY & KLIMA

Details

AGLC: ROMILLY & KLIMA [2019] FCCA 3789
Case: [2019] FCCA 3789
Decision Date: 24 December 2019

CaseChat Overview and Summary

In *Romilly & Klima*, the Family Court of Australia considered an application for interim parenting orders concerning two children. The dispute arose between the parents, who were seeking to establish arrangements for the children's care and welfare pending final resolution of their parenting proceedings.

The central legal issue before Newbrun J was to determine what interim parenting orders would be in the best interests of the children, having regard to the principles and considerations outlined in the *Family Law Act 1975* (Cth). This involved assessing the immediate needs of the children and the capacity of each parent to meet those needs in the interim period.

Newbrun J applied the paramountcy principle, requiring that the best interests of the children be the sole consideration. The court considered various factors relevant to the children's best interests, including their physical and psychological well-being, the need to protect them from harm, and the importance of maintaining a meaningful relationship with both parents, balanced against the need for stability and the practicalities of the parents' living arrangements. The court's reasoning focused on identifying the most appropriate interim arrangements to safeguard the children's welfare and promote their development during the litigation.

Orders