BECKFORD & BECKFORD - [2020] FCCA 2639

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKFORD & BECKFORD

[2020] FCCA 2639

Catchwords:
FAMILY LAW – Parenting – unilateral relocation – no notice provided to the Mother – alignment with the Father – meaningful relationship – tyranny of distance – children and the Father ordered to return.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 69ZL

Cases cited:

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode [2006] FamCA 1346

Applicant:

MS BECKFORD

Respondent:

MR BECKFORD

File Number:

MLC 8078 of 2020

Judgment of:

Judge Carter

Hearing date:

21 August 2020

Date of Last Submission:

21 August 2020

Delivered at:

Melbourne

Delivered on:

21 August 2020

REPRESENTATION

Counsel for the Applicant:

Ms Hutchings

Solicitors for the Applicant:

Women's Legal Service Victoria

The Respondent appeared in person.

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2006, Y born in 2010 and Z born in 2014, and Victoria Legal Aid is requested to facilitate such appointment as soon as possible.
Upon notification of the identity of the Independent Children’s Lawyer, each party shall forthwith provide to the Independent Children’s Lawyer a copy of all documents filed by them in the proceedings.
The Father and the children X born in 2006, Y born in 2010 and Z born in 2014 (“the children”) return to the State of Victoria on or before 18 September 2020.
Upon the Father and the children’s return to the State of Victoria, the Father shall forthwith advise the Mother’s solicitors of his residential address and contact details.
The orders made on 12 August 2019 otherwise remain in full force and effect.
The proceedings are adjourned to 30 September 2020 at 9.45am for mention.
The parties may inspect only and the parties’ legal representatives may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the Notice of Risk filed on 14 August 2020 in these proceedings.
The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
The parties be at liberty to apply.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The information produced by the Department of Health and Human Services is confidential and cannot be disclosed to any other person without an order of this Court.
B.Penalties may apply pursuant to section 112AD and section 121 of the Family Law Act 1975 if the information produced by the Department of Health and Human Services is disseminated other than as ordered in these proceedings.
C.If in any proceedings there are allegations of family violence and the provisions of section…

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

Case: [2020] FCCA 2639
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the matter of *Beckford & Beckford*, Judge Carter considered a dispute concerning the parenting arrangements for three children. The proceedings involved the Father, who had relocated with the children without providing notice to the Mother, and the Mother, who sought the children's return.

The central legal issues before the court were whether the unilateral relocation by the Father, which significantly impacted the children's relationship with their Mother, was in the children's best interests. The court was required to assess the extent to which the relocation had disrupted the children's meaningful relationship with their Mother and consider the implications of the "tyranny of distance" created by the move.

Judge Carter reasoned that the Father's actions in relocating the children without notice to the Mother were detrimental to the children's best interests, particularly by undermining their relationship with their Mother. The court applied principles relating to parental responsibility and the importance of maintaining meaningful relationships with both parents. The court ordered that the Father and the children return to the State of Victoria.

Orders

Orders of the court

Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2006, Y born in 2010 and Z born in 2014, and Victoria Legal Aid is requested to facilitate such appointment as soon as possible.

Upon notification of the identity of the Independent Children’s Lawyer, each party shall forthwith provide to the Independent Children’s Lawyer a copy of all documents filed by them in the proceedings.

The Father and the children X born in 2006, Y born in 2010 and Z born in 2014 (“the children”) return to the State of Victoria on or before 18 September 2020.

Upon the Father and the children’s return to the State of Victoria, the Father shall forthwith advise the Mother’s solicitors of his residential address and contact details.

The orders made on 12 August 2019 otherwise remain in full force and effect.

The proceedings are adjourned to 30 September 2020 at 9.45am for mention.

The parties may inspect only and the parties’ legal representatives may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the Notice of Risk filed on 14 August 2020 in these proceedings.

The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

The parties be at liberty to apply.

10.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A. The information produced by the Department of Health and Human Services is confidential and cannot be disclosed to any other person without an order of this Court.

B. Penalties may apply pursuant to section 112AD and section 121 of the Family Law Act 1975 if the information produced by the Department of Health and Human Services is disseminated other than as ordered in these proceedings.

C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F. If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

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