SIMEN & SIMEN - [2019] FCCA 3533

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMEN & SIMEN

[2019] FCCA 3533

Catchwords:
FAMILY LAW – Interim parenting – 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

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman [2015] FamCAFC 104

Applicant:

MR SIMEN

Respondent:

MS SIMEN

File Number:

PAC 1734 of 2019

Judgment of:

Judge Newbrun

Hearing date:

21 November 2019

Date of Last Submission:

21 November 2019

Delivered at:

Parramatta

Delivered on:

11 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Counsel for the Respondent:

Ms Spain

Solicitors for the Independent Children's Lawyer:

Mr MacDiarmid

ORDERS PENDING FURTHER ORDER

The child [X] born … 2010 shall spend time with the father pursuant to the Court’s orders dated 30 September 2019.

Engagement with the Anchor Program

Each parent shall within 7 days contact Uniting for the purposes of:
(a)arranging and attending the first available and offered intake appointment for the Anchor Program to enable the child to participate in therapeutic counselling;
(b)attending any other program of therapeutic counselling to which they are referred by Uniting, including, without limitation, the Keeping the Contact Program; and
(c)each seeking a referral from Uniting to attend an appropriate parenting after separation course, and upon receipt of such referral:
(i)shall attend and complete the first available such course;
(ii)pay all required fees;
(iii)provide a copy of a certificate of completion of such course to the Independent Children’s Lawyer and the lawyer for the other parent.
Subject to assessment as to suitability and acceptance of the child by the Anchor Program (or such other program or therapist nominated by the Independent Children’s Lawyer in the event that the child is not accepted by Uniting pursuant to the previous order), each parent shall do all things and compete and sign all documents including, without limitation, the provision of any necessary consents, and ensuring that the child attend all appointments, necessary for her to be enrolled in and participate in such program or follow up such referral.
In the event that Uniting is unable or unwilling to enrol the child in the Anchor Program, the parents will each do all thing such other program or therapist nominated by the Independent Children’s Lawyer.
The parents shall pay equally any fee charged by Uniting for the child’s participation in the Anchor Program or any other program to which they are referred pursuant to these Orders.
The parents are restrained from taking the child to any therapist other than in accordance with these Orders.
That both parents, without admissions, be restrained from consuming alcohol to excess such that he or she would be unable at law to drive a motor vehicle, 12 hours prior to and during such period of time as the child is in his or her respective care.

IT IS NOTED that publication of this judgment under the pseudonym Simen & Simen is approved pursuant to s.121(9)(g)…

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 SIMEN & SIMEN

Details

AGLC: SIMEN & SIMEN [2019] FCCA 3533
Case: [2019] FCCA 3533
Decision Date: 11 December 2019

CaseChat Overview and Summary

In *Simen & Simen*, 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 party 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, having regard to the principles set out in the *Family Law Act 1975* (Cth). This required the court to consider the child's right to have a meaningful relationship with both parents, balanced against the need to protect the child from harm.

Newbrun J applied the principles of the paramountcy of the child's best interests in interim parenting proceedings. The court considered the evidence presented by both parties regarding the child's welfare and the capacity of each parent to provide a safe and nurturing environment. The judge emphasised that at the interim stage, the court's role is to preserve the status quo as much as possible while ensuring the child's safety and well-being, pending a final determination of the parenting dispute.

The court made specific interim orders regarding the child's living arrangements and time with each parent, aiming to promote a stable and consistent environment for the child.

Orders