Becket and Peel - [2010] FMCAfam 1424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECKET & PEEL

[2010] FMCAfam 1424

FAMILY LAW – Interim application concerning two children aged 11 & 8 – where the children have lived with the mother since separation seven years ago – where the children have spent little time with the father since April 2010 after the mother made a unilateral decision that this should not occur – where the mother has filed a Notice of Child Abuse alleging that the father has abused the children – where the mother has re-partnered on two occasions since separation with violent men – where the expert’s report prepared in the matter recommends that the children be immediately removed from the mother and placed with the father – whether a change of residence should be ordered on an interim basis.

Family Law Act 1975, ss.60CC, 65DAA

Goode & Goode (2007) 36 Fam LR 422

Applicant:

MR BECKET

Respondent:

MS PEEL

File Number:

NCC 2190 of 2008

Judgment of:

Terry FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Newcastle

Delivered on:

8 December 2010

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Guyder

Solicitors for the Applicant:

Braye Cragg

Solicitor Advocate for the Respondent:

Ms Chapple

Solicitors for the Respondent:

Harris Wheeler

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Matheson

Solicitor for the for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS – 6 DECEMBER 2010

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Orders made in the Federal Magistrates Court at Newcastle 22 March 2010 are suspended.
Until further order the children, X born … 1999 and Y born … 2002 live with the father.
The children spend supervised time with the mother at the A Contact Centre at Suburb L on one day each fortnight for a minimum of two (2) hours and to facilitate such time:
(a)Each party must:
(i)Contact the A Contact Centre at Suburb L within seven (7) days to arrange an appointment for assessment for suitability for supervised time.
(ii)Attend the assessment.
(iii)Comply with any appointment made by the A Contact Centre at Suburb L for supervised time.
(iv)Comply with all reasonable rules of the A Contact Centre at Suburb L.
(v)Comply with all reasonable requests or directions of the staff of the A Contact Centre at Suburb L.
(vi)In the event that A Contact Centre at Suburb L offers supervised time at times and frequency different to what is specified in these orders then the time shall occur at the times that are offered by the Contact Centre.
(vii)If A Contact Centre at Suburb L following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
(b)If the parties are accepted by the A Contact Centre at Suburb L intake procedure then the mother is to spend time with the children each…

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 Becket and Peel

Details

AGLC: Becket and Peel [2010] FMCAfam 1424
Case: [2010] FMCAfam 1424
Decision Date: 8 December 2010

CaseChat Overview and Summary

In the case of Becket and Peel, the primary dispute was over the care, custody, and control of two minor children. The matter was heard in the Family Court of Australia. The parents of the children, referred to as the mother and father, could not agree on the living arrangements for their children. The court was required to determine which parent the children should live with, considering the best interests of the children as outlined in s.60CC(2) of the Family Law Act.

The court had to assess several factors to reach a decision. These factors included the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from abuse, neglect, or family violence. The evidence presented indicated that the children had limited contact with their father since April 2010 and that the mother held a negative view towards the father, potentially hindering any meaningful relationship. In contrast, the father seemed more open to maintaining a relationship with the children. Furthermore, the court had to consider the risk of family violence if the children were to remain with the mother and her current partner, Mr F, who had a history of violence and criminal activity.

The court concluded that it was in the children's best interests to live with their father, given the risk of exposure to family violence and the mother's negative attitude towards the father. The court found that there was an unacceptable risk that the children would be exposed to family violence if they remained with the mother and her partner. Additionally, the children's behaviour with their father did not indicate any fear or recent abuse, which was consistent with the expert witness's observations. The court's decision was based on the primary considerations outlined in s.60CC(2), ensuring the children's safety and the potential for a meaningful relationship with both parents. The court ordered that the children should live with their father.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The primary considerations in s.60CC(2) is as follows:a)The benefit to the children of having a meaningful relationship with both of the children’s parents; andb)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The situation for these two children at present is that they have effectively been cut off, or largely been cut off, from having a relationship with their father since April 2010. They have spent little time with him since then. It is abundantly clear that the mother has a negative attitude toward the father, and if the children remain living with the mother there is a considerable risk that they might not have a meaningful relationship with the father in the future. The father’s attitude to the mother, however, is more relaxed, and there is a greater likelihood of the boys being able to have a meaningful relationship with both parents if they live with the father than if they remain with the mother. I must consider the need to protect the children from physical or psychological harm as a result of being exposed to or subjected to abuse, neglect or family violence. On any view of the facts Mr F is an undesirable man who has been physically violent to the children’s mother, who has convictions for assaults on other people, who has a very lengthy criminal history. There is an unacceptable risk that the children will be exposed to family violence if they live in a home with the mother and Mr F. I cannot make any findings at this interim stage that Mr F is living with the mother, but there are certainly indications that this may be the case. There is X’s revelation to his school teacher which the father recorded in his affidavit; there is X’s revelation to Ms C which he was mortified about the consequences of; there are some things that Y said which suggest that Mr F may be in the home; and there is the fact that the mother is pregnant to Mr F, something she did not reveal willingly to Ms C. In my view there is an unacceptable risk that if the children remain in the mother’s care they might be brought into the company of Mr F, to whom the mother is pregnant, and if they are exposed to Mr F in the company of the mother, there is certainly an unacceptable risk that they are going to be exposed to family violence. The mother made allegations that the father had physically abused X by pushing him and putting a hot fork onto his finger. These are very serious allegations of physical abuse. I cannot make a determination in these proceedings about the truth or otherwise of these allegations. Ms C confirmed during cross-examination that the children did not display any fear of the father, and although her evidence has not been rigorously tested, she has spent 35 years working in the area of child protection. She is an expert witness in these proceedings and has a degree of objectivity, and I place some weight on her observations of the relationship between the children and the father and their lack of fear of him. It is relevant that the children’s behaviour with the father is not consistent with a finding that he has abused them in the recent past in the way that the mother suggested.