WOODS & HENDRY - [2019] FCCA 3838

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODS & HENDRY

[2019] FCCA 3838

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

Applicant:

MS WOODS

Respondent:

MR HENDRY

File Number:

PAC 2429 of 2019

Judgment of:

Judge Newbrun

Hearing date:

17 December 2019

Date of Last Submission:

17 December 2019

Delivered at:

Parramatta

Delivered on:

24 December 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Ndou

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer:

Mr Samuel

ORDERS PENDING FURTHER ORDER

That all previous parenting orders between the parties be discharged.
That the child [X] born … 2018 live with the mother.
That the parties do all things necessary and sign all documents required to complete any and all intake procedures at Town A Children’s Contact service in order to enable the child to commence spending supervised time with the father.
That the child spend time with the father supervised by Town A Children’s Contact Service for a minimum period of two (2) hours each week if at all possible from 3.00pm to 5.00pm on Friday or otherwise on a day and time convenient to the said contact centre.
That the father pay for the costs of the said contact service.
That Order 4 continue for a period of at eight (8) weeks from the date of commencement of the child spending time with the father pursuant to Order 4 herein.
Upon the expiration of the above period of eight (8) weeks the said child is to spend time with the father for a period of 5 hours once a week on either Saturday or Sunday as agreed between the parties in writing through their respective lawyers (if applicable), such time to be supervised by the father’s mother, Ms B Hendry.
That in order to facilitate all changeovers pursuant to Order 7 herein the father’s mother, Ms B Hendry shall collect the child from the mother’s home, and deliver the child to the mother’s home at the commencement and conclusion of the child’s time with the father.
That Orders 7 and 8 herein not commence until the following:-

9.1
All drug tests requests of the father pursuant to these orders herein are negative;

9.2
The father has enrolled in and commenced a C Parenting Program;

9.3
The father has enrolled in and commenced a men’s behaviour Change program; and

9.4
The father has enrolled in and commenced post separation parenting program.
In the event that the father has not complied with Order 9 of these orders the child [X]’s time with the father shall continue to be supervised by Town A Children’s Contact Service in accordance with Order 4 of these orders.
That WITHOUT ADMISSION both parties be restrained from:
11.1
Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or…

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.

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Details

AGLC: WOODS & HENDRY [2019] FCCA 3838
Case: [2019] FCCA 3838
Decision Date: 24 December 2019

CaseChat Overview and Summary

This matter concerned an application for interim parenting orders in the Family Court of Australia. The applicants, Woods and Hendry, sought orders regarding the future care arrangements for their children.

The primary legal issue before the Court was to determine the best interests of the children in the context of interim parenting arrangements. This required the Court to consider various factors relevant to the children's welfare and to make orders that would promote their best interests pending a final determination of the proceedings.

Newbrun J applied the principles enshrined in the *Family Law Act 1975* (Cth) concerning the paramountcy of the child's best interests. The Court considered evidence presented by the parties regarding the children's physical and psychological well-being, their relationship with each parent, and the capacity of each parent to provide care. The Court's reasoning focused on ensuring stability and continuity for the children during the interim period, balancing the competing claims of the parents while prioritising the children's needs.

The Court made interim orders for the care and welfare of the children.

Orders