Beadel & Beadel

Case [2021] FamCA 591

FAMILY COURT OF AUSTRALIA

Beadel & Beadel [2021] FamCA 591

File number(s): ADC 982 of 2019
Judgment of: BERMAN J
Date of judgment: 10 August 2021
Catchwords:

FAMILY LAW – CHILDREN –With whom a child lives and spends time with – Best interests of a child – Meaningful relationship – Where the father seeks that the child live with him and spend time with the mother – Where the mother seeks the child live with her and spend time with the father subject to the child’s wishes – Where there are allegations of family violence – Where the mother ceased the father’s time with the child in 2018 – Where supervised time and reunification therapy has been unsuccessful – Where the child currently lives with the mother – Where there is no relationship between the father and the child and the child does not wish to have a relationship with the father – Where a removal from the mother’s care would place the child at risk of psychological harm – Orders.

FAMILY LAW – CHILD ABUSE – Allegations – Where the mother had raised sexual abuse at various times in the proceedings – Where the mother does not allege that the father presented a risk of sexual abuse but places weight on concerns expressed by the child of the father’s conduct – Where the child believes he has been sexually abused by his father – Where there is no evidence to support that belief – Where a health professional is to explain to and counsel the child that he was not the subject of sexual abuse.   
Legislation:

Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZT, 69VA

Family Law Rules 2004 (Cth) r 15.13

Cases cited:

Baglio & Baglio [2013] FamCA 105

Beckham & Desprez [2015] FamCAFC 247

Blanding & Blanding [2016] FamCAFC 21

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Hunter & Berg [2017] FamCA 1051

Pascoe & O’Keefe and Ors [2018] FamCAFC 243

Sigley v Evor (2011) 43 Fam LR 439

Number of paragraphs: 231
Date of hearing: 7 – 11 December 2020 and 29 March 2021 – 1 April 2021  
Place: Adelaide
Counsel for the Applicant: Ms Lewis
Solicitor for the Applicant: Resolve Divorce Lawyers
Counsel for the Respondent: Mr Bowler
Solicitor for the Respondent: SE Lawyers

ORDERS

ADC 982 of 2019
BETWEEN:

MR BEADEL

Applicant
AND:

MR BEADEL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

10 AUGUST 2021

THE COURT ORDERS:

1.That the mother have sole parental responsibility for Z BEADEL (“the child”) born … 2011.

2.That the child live with the mother.

3.That the child spend time with the father pursuant to the child’s wishes.

4.That within twenty eight (28) days of this order the parties agree upon and nominate a suitably qualified therapist or counsellor to assist the child in understanding that he has not been the subject of sexual abuse by the father and that his continued…

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AGLC
Beadel & Beadel [2021] FamCA 591
Case
[2021] FamCA 591
Decision Date

CaseChat Overview and Summary

In the matter of *Beadel & Beadel*, Mr Beadel (the applicant father) sought orders for the child to live with him and spend time with the respondent mother, while the mother sought orders for the child to live with her and spend time with the father, subject to the child's wishes. The dispute involved allegations of family violence, unsuccessful attempts at supervised time and reunification therapy, and a current lack of relationship between the father and child, with the child expressing no desire for such a relationship. The court was also required to consider allegations of child abuse, specifically the child's belief of sexual abuse by the father, despite a lack of evidence supporting this belief.

The court was tasked with determining the best interests of the child, specifically whether to make orders for the child to live with the father, and how to address the child's expressed wishes and beliefs regarding the father. This included considering the primary considerations under section 60CC of the *Family Law Act 1975* (Cth), namely the benefit of a meaningful relationship with both parents and the need to protect the child from harm, as well as additional considerations. The court also had to assess the weight to be given to various pieces of evidence, including voluminous affidavits and text messages, some of which were contested.

Justice Berman applied the principles outlined in section 60CC of the *Family Law Act 1975* (Cth), focusing on the benefit of a meaningful relationship and the protection of the child from harm. The court noted that a "meaningful relationship" is a legal construct to be determined by the court, and that such a relationship must first be possible and beneficial to the child. Given the child's current disdain for the father, the unsuccessful attempts at reunification, and the risk of psychological harm if removed from the mother's care, the court found that the father's proposed orders were not viable. The court concluded that while there was no evidence of family violence or sexual abuse by the father, the child's belief to the contrary was a tragic outcome that required therapeutic intervention.

Consequently, the court made orders for the mother to have sole parental responsibility and for the child to live with the mother. The child was to spend time with the father pursuant to the child's wishes. A further order required the parties to engage a therapist to counsel the child regarding the unfounded belief of sexual abuse by the father, aiming to mitigate potential long-term adverse developmental consequences. The court also made ancillary orders regarding parental responsibility, communication, and the registration of the father's name on the child's birth certificate.

Orders

Orders of the court

ADC 982 of 2019

BETWEEN:

MR BEADEL

Applicant

AND:

MR BEADEL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

10 AUGUST 2021

THE COURT ORDERS:

1. That the mother have sole parental responsibility for Z BEADEL (“the child”) born … 2011.

2. That the child live with the mother.

3. That the child spend time with the father pursuant to the child’s wishes.

4. That within twenty eight (28) days of this order the parties agree upon and nominate a suitably qualified therapist or counsellor to assist the child in understanding that he has not been the subject of sexual abuse by the father and that his continued belief to the contrary may well be detrimental to him in terms of his future development.

5. That the parties keep each other informed of their current residential address, mobile and landline telephone numbers and any available email address and advise the other party of any change thereto within seven (7) days of such change.

6. That each party shall be at liberty to receive reports, notices and any other information that is usually provided to parents by any school, educational institution, sporting body or extracurricular organisation at which the child may from time to time be enrolled or attend.

7. That the father will be at liberty to forward gifts, cards and correspondence to the child that coincide with special occasions.

That the father be declared to be the father of the child and the parties do all things necessary to register the father’s name on the child’s birth certificate.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The mother’s assessment of the child’s disdain and hatred for the father was further demonstrated by the unsuccessful attempt to re-establish a relationship under the guidance of Ms G. The mother acknowledges that the child refused to engage with the father and acted in a rude and disrespectful manner. For his part, the father seeks a change in the primary care arrangements for the child as being the only possible option to enable the child to restore a relationship with the father that had been loving and respectful. The father does not consider that the orders he seeks will place the child at risk of emotional or psychological harm. EVIDENCE At the commencement of the trial the Court highlighted the provisions of Pt VII Div 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). In circumstances where the mother no longer alleged that the father represented an unacceptable risk to the child by reason of sexual abuse the provisions of s 69ZT were not dispensed with. Each of the parties relied upon voluminous affidavits. Counsel for the parties pressed extensive objections to evidence and in the circumstances of the case I did not consider that the matter should proceed on the basis that the evidence of each of the parties would be received but that I would exercise my discretion under s 69ZT(3) of the Act as to the weight that should be given to any matter, particularly if it was considered contentious. It is an issue associated with the significant legal costs incurred by each of the parties that substantial portions of the trial affidavits were struck out pursuant to r 15.13 of the Rules and s 135 of the Evidence Act as being inadmissible. The issue of contention as between the parties was whether there was good reason for the child to reject the father and if not whether a relationship can be safely restored. Much of the affidavit material was irrelevant to the issues between the parties.The mother The father placed significant reliance upon the text message exchange between the parties. The purpose was to demonstrate that in the period leading up to November 2018, whilst at times the relationship between the parties was strained, the text messages demonstrate the father’s involvement with the child was supported by the mother. The text messages spanned a period from 2010 to 2019. There are in excess of 1442 pages comprising 12,155 text messages. Significant proportions were tendered as exhibits in the proceedings. The mother considered the folders of text messages and whilst not being able to identify any particular message or messages, it was her evidence that some of the text messages had been cut and pasted and that they were phony, manufactured and doctored. In addition some text messages were not familiar to the mother. When further challenged, the mother’s evidence was that the text messages between 2014 to 2019 were not accurate and that she doubted the correctness of the time lines.

Decision

Reasons for decision

The father’s orders would see a dramatic change in the child’s current circumstances. It is not viable for there to be more therapeutic intervention. To do so would be to risk a deterioration in the child’s mental health. Equally there is no factual support for the child being forcibly removed from the mother’s care and placed into the primary or significant care of the father.CONCLUSION It is an outcome of last resort that orders are made which will likely result in a total cessation of any relationship that this child will have with his father. It must be remembered that the findings on the evidence do not support any proper basis for such an outcome that might be found in either family violence or in particular that the father presents as a risk to the child by reason of sexual abuse. The fact that the child appears to hold a view that his father is the perpetrator of sexual abuse is a tragic outcome in circumstances where there is no evidence that would support that belief. I propose to make orders as sought by the mother but with a further order that will require the mother to engage with a suitably qualified health professional agreed by the parties to explain and counsel the child that he was not the subject of sexual abuse by his father and to assist the child in better understanding that such a false belief may have long-term adverse consequences for him. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

I propose to adopt the following approach:(a)Give consideration to the proposals put forward by the parties;(b)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(c)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(d)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;(e)Have regard to the additional considerations under s 60CC(3) of the Act; and(f)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.PARENTING CONSIDERATIONSMeaningful relationship Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case. In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. … In Sigley v Evor (2011) 43 Fam LR 439 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513 [191]: The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes a ‘meaningful relationship’. There is no relationship between the father and the child. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long-term”.